This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





William Vernon Johnson,



Filed June 3, 2003


Willis, Judge


Ramsey County District Court

File No. K9014218


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN  55102-1657 (for respondent)


John M. Stuart, State Public Defender,  Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of third-degree assault, arguing that the show-up identification used to identify him was unreliable and that he was denied effective assistance of counsel.  Because we conclude that the identification was reliable in light of the totality of the circumstances and that appellant has not met his burden of showing that he was denied effective assistance of counsel, we affirm.


            After a jury trial in January 2002, appellant William Vernon Johnson was convicted of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2000).  The charge was the result of a November 2001 incident in which Dennis Schmidt was assaulted outside his home in Saint Paul.  The facts are largely undisputed. 

Shortly after midnight on November 29, 2001, Schmidt heard a noise coming from the driveway behind his house.  The driveway area was well lit, and when Schmidt looked outside, he saw two men: one standing next to and one sitting inside Schmidt’s truck, which was parked in the driveway.  Schmidt asked his mother, who lived with him, to call the police.  He then went outside and yelled at the men.  The man standing next to the truck ran to the end of the driveway and the man inside the truck got out of the truck and ran into the street at the foot of the driveway.  Schmidt walked to the end of the driveway and confronted the man standing on the driveway, and the man started hitting Schmidt.  At that point, the man standing in the street approached and also started hitting Schmidt.  Schmidt eventually broke free and went into his house.  He wiped blood from his face and went back outside, where he saw the two men attempting to break into a car parked in the carport of the house next to Schmidt’s.  Schmidt told the men that the police were on their way, and the men fled.  According to Schmidt’s testimony, the police arrived “a few seconds later.”

            When the police arrived, Schmidt gave them a description of the two men.  He testified that he told the police that one of the men was older, between 25 and 30 years old, and “much heavier” than the other one.  The police canvassed the neighborhood and eventually found two men hiding in a dog kennel next to a house on the same block as Schmidt’s house.  The two men told the police that they were at the house for a party, but the residents of the house told the police that there was no party there that night.

The police brought Schmidt to the area where they had apprehended the two men, and Schmidt identified them as the men who had assaulted him.  Schmidt testified that at the show-up (1) he was about 20 feet away from the men when he was asked to identify them; (2) the men were in handcuffs; (3) he looked at the men one at a time; (4) he recognized Johnson and had no doubt that he was one of the men who had assaulted him; (5) he did not immediately recognize the second man because the man was not wearing his coat; and (6) after the police instructed the second man to put his coat on, Schmidt recognized him as the second man who had assaulted him.

            Three Saint Paul police officers testified at trial about Schmidt’s identification of Johnson as one of his assailants.  Officer Bradley Hazelett identified Johnson as one of the men who took part in the show-up.  Officer Hazelett also testified that (1) he told Schmidt that police had two people in custody who matched the descriptions Schmidt had given; (2) Officer Hazelett asked Schmidt if he would try to identify them, and when Schmidt agreed, Officer Hazelett drove him to the location of the show-up; (3) Officer Hazelett parked his squad car about two car lengths from where the suspects were standing; (4) Schmidt remained seated in Officer Hazelett’s squad car while Officer Hazelett trained his squad car’s spotlight on Johnson; and (5) before Officer Hazelett had a chance to ask Schmidt if the suspect was his assailant, Schmidt said, “[T]hat’s definitely him.  That’s him.  That’s him.  It’s him.  It’s definitely him.”

Officer Michael Dunaski testified that (1) he and his partner, Officer Joe Reginek, responded to a call at Schmidt’s house on November 29, 2001; (2) when Officers Dunaski and Reginek arrived, Schmidt described his two assailants; and (3) Schmidt said one of his assailants was a white male between five feet six inches and five feet seven inches tall, weighed 250 pounds, had a stocky build and a “goatee-style mustache,” and wore a “dark quilted flannel shirt.”  Officer Dunaski testified that he and his partner eventually located the two men who were the subjects of the show-up, one of whom was Johnson.  Officer Dunaski also testified that, on the night of his arrest, Johnson had a “goatee-style mustache.”

Officer Reginek testified that (1) he and Officer Dunaski responded to a call at Schmidt’s house on November 29, 2001; (2) he and Officer Dunaski found Johnson and another man hiding next to a nearby house; (3) Schmidt had told Officer Dunaski that one of the men was between five feet six inches and five feet seven inches tall with a stocky build, had a “goatee-style mustache,” and wore a “blue and green flannel-type jacket”; and (4) Johnson matched the description that Schmidt gave.  Officer Reginek testified that, while he and Officer Dunaski were driving Johnson and the other suspect to the jail, he overheard Johnson say, “I should have beat the f--king guy worse.”  Officer Reginek wrote the quote down when he heard it, and he testified from his notes at trial.

Johnson moved to suppress evidence of Schmidt’s identification of him at the show-up.  The district court denied Johnson’s motion, and this appeal follows.



When reviewing a district court’s decision on a motion for suppression in a case with undisputed facts, an appellate court may review the facts independently and determine, as a matter of law, whether the evidence must be suppressed.  State v. Taylor,594 N.W.2d 158, 161 (Minn. 1995).  Whether identification evidence must be suppressed depends entirely on the reliability of the identification.  Id.  To determine if an identification is reliable, courts conduct a two-part analysis.  First, courts consider whether the identification procedure was impermissibly suggestive.  Id.  A one-person show-up is not per se impermissibly suggestive.  Id. at 161-62.

Johnson argues that the show-up here was impermissibly suggestive because he was brought to the scene in a squad car, in handcuffs, and flanked by police officers.  In State v. Anderson, 657 N.W.2d 846, 851 (Minn. App. 2002), this court held that a show-up was impermissibly suggestive when police singled out the defendant based on a witness’s description, told the witness that they had a person in custody who matched the witness’s description, and then presented him to the witness in handcuffs.

Here, Officer Hazelett testified that he told Schmidt that the police thought they had a suspect matching the description that Schmidt had given them.  And it is undisputed that Johnson was handcuffed when he was presented in the show-up.  Under Anderson, therefore, the show-up here was impermissibly suggestive.

Because we conclude that the identification procedure was impermissibly suggestive, we must consider “whether, in light of the totality of the circumstances, the identification evidence is reliable.”  State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996).  We consider five factors:  (1) Schmidt’s opportunity to view Johnson at the time of the assault, (2) Schmidt’s degree of attention, (3) the accuracy of Schmidt’s prior description of Johnson, (4) the level of certainty that Schmidt demonstrated when he identified Johnson, and (5) the time that elapsed between the assault and the show-up.  See State v. Ostrem,535 N.W.2d 916, 921 (Minn. 1995).

The record shows that Schmidt had several opportunities to view Johnson.  Schmidt twice saw Johnson standing in his driveway, which Schmidt testified is a well-lit area.  Schmidt’s first observation of Johnson occurred when he heard a noise and looked outside, and the second occurred when he confronted Johnson while he stood next to Schmidt’s truck.  Schmidt had another opportunity to view Johnson when he confronted him at the end of the driveway and again when he saw Johnson attempting to break into Schmidt’s neighbor’s car.

Johnson argues that Schmidt lacked a sufficient degree of attention.  He contends that Schmidt could have been distracted because he was angry about finding Johnson and the other man tampering with his truck.  But the detailed description that Schmidt gave the police indicates otherwise.

Johnson contends that there are inconsistencies between how Schmidt described the suspects to the police and how he described them at trial.  But in both descriptions, Schmidt said Johnson was short and stocky.  Johnson attempts to contrast Schmidt’s testimony that his assailant wore a “plaid insulated type of shirt” with the description that he gave to the police, in which he said his assailant wore a “quilted flannel shirt.”  But we see no meaningful difference between the two descriptions.  Further, Officer Reginek testified that when Johnson was apprehended, he matched the description that Schmidt had given to the police. 

Johnson also contends that, contrary to the description that Schmidt gave to police, he did not have a goatee at the time of his arrest and was merely unshaven.  But Schmidt testified that he thought he told the police that the man “had kind of a wispy mustache, describing it like a goatee.”  Further, Officers Dunaski and Reginek both testified that Schmidt told them that his assailant had a “goatee-style mustache,” and Officer Dunaski testified that Johnson had a “goatee-style mustache” when he was arrested.

Officer Hazelett’s testimony also demonstrates the high level of certainty that Schmidt displayed at the show-up.  And Schmidt testified that he had no doubt at the show-up that the man he saw was one of the men who had assaulted him.

Finally, the record is not clear as to the amount of time that elapsed between the crime and the identification.  Johnson contends that it was at least 30 minutes, but he concedes that “the identification occurred shortly after the assault.”  He argues that Schmidt was without his glasses at the show-up, but Schmidt testified that he is neither nearsighted nor farsighted; rather, he wears glasses to correct astigmatism, which has no effect on his “ability to see things close up or at a distance.”

The totality of the circumstances indicates that the identification evidence is reliable.  The district court did not, therefore, err by denying Johnson’s suppression motion.


In a pro se brief, Johnson argues that he received ineffective assistance of counsel at trial.  To prevail on a claim of ineffective assistance of counsel, Johnson must demonstrate that his counsel’s performance failed to meet “an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel[’s] errors.”  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (quotation omitted); see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65 (1984).  There is a strong presumption that counsel’s performance was reasonable.  Voorhees, 627 N.W.2d at 649.

While a claim of ineffective assistance of counsel is more properly raised in a postconviction petition if the claim requires additional fact-finding, see Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997), the record here is sufficient for us to conclude that Johnson does not meet his burden to show ineffective assistance of counsel.  Johnson appears to contend only that his defense counsel failed to exploit alleged problems with Schmidt’s eyesight, which, Johnson argues, would have cast doubt on Schmidt’s identification of Johnson.  But Schmidt testified about his eyesight on both direct and cross-examination.  Johnson’s counsel inquired about alleged problems with Schmidt’s eyesight, and Schmidt testified that he was neither nearsighted nor farsighted.