may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Jesse Paul Novicky,
Ramsey County District Court
File No. KX022052
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of possession of a firearm by an ineligible person, appellant Jesse Paul Novicky argues that (1) the photographic line-up was unnecessarily suggestive; (2) the district court violated his constitutional rights by using CRIMJIG 3.04 without also instructing the jury that it did not have to agree in order to reach a verdict because a hung jury or a deadlocked decision is a verdict in itself; and (3) the evidence was insufficient. We affirm.
Officers responded to a call about a shot fired in the area of Dayton and Fisk Streets in St. Paul. J.E.J., the alleged victim, flagged down the police and reported that he slowed his vehicle to talk to appellant at Dayton and Fisk Streets. J.E.J. testified that he got out of his car and walked over to appellant’s car. They spoke briefly, and then appellant pulled a handgun from a bag in his car and pushed it into J.E.J.’s stomach. Thinking that appellant was playing around and that the gun was a fake, J.E.J. moved the gun away from his stomach. Appellant hit J.E.J in the head with the gun, and it went off. J.E.J. testified that he immediately lay down on the ground, and appellant took approximately $200 from him and ran through yards toward Selby Avenue.
Anthony Bohaty was visiting a friend at 850 Dayton. He heard what he thought was a firecracker and looked out the kitchen window. He testified that he saw a tall, black male in his twenties bending down on the other side of a three-foot picket fence. The man then stood up and ran along the fence into the yard of the house next door. Bohaty testified that he saw a gun in the man’s hand, and he grabbed the cordless phone to call the police and ran out the door as he watched the man run along the fence.
The next day Bohaty was contacted by police who presented a photographic line-up of six individuals. Bohaty identified appellant from the photographs. Appellant was charged with aggravated robbery, assault, and possession of a firearm by an ineligible person. The district court denied appellant’s motion to suppress the witness’s identification from the photographic line-up. A jury found appellant guilty of possession of a firearm by an ineligible person in violation of Minn. Stat. §§ 624.713, subds. 1(b), 2, 609.11, subd. 5(b) (2000), and acquitted on all other charges.
1. Motion to suppress the photographic line-up
“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Appellant argues that the photographic line-up was unnecessarily suggestive and singled him out for identification because he was the only mixed-race person in a group of darker-skinned African Americans. Therefore, appellant contends, the district court erred by denying his motion to suppress.
In determining whether pretrial eyewitness identification evidence must be suppressed, a two-part test is applied. The first inquiry focuses on whether the procedure was unnecessarily suggestive. Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification. . . . However, under the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence was reliable. If the totality of the circumstances shows the witness’ identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure. The test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification.
State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citations omitted).
Not every person in a photographic display has to fit the witness’s description exactly. Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988). “It is sufficient if all the people in the display bear a reasonable physical similarity to the accused.” Id. at 672-73. Appellant argues that he is the only mixed-race person in a group of darker-skinned African Americans in the photographic line-up. But all of the individuals in the line-up bear a reasonable physical similarity to appellant. Although there is some variation in skin color among the six photographs in the line-up, this variation does not single out appellant for identification. See United States v. Briley, 726 F.2d 1301, 1306 (8th Cir. 1984) (determining that identification procedures were not unnecessarily suggestive where people in display had complexions fairly resembling appellant regardless of race but appellant was the only African American person with tight curly hair in display); Seelye, 429 N.W.2d at 673 (concluding photographic display was not unnecessarily suggestive where appellant was Indian and other persons in display, who bore physical resemblance to appellant, were Caucasian).
Appellant also argues that because his photo is the only one that fills the whole frame, it suggested to Bohaty that he was the person whom Bohaty had described as tall. Appellant’s photo is the only one in the line-up where the subject’s head touches the top of the frame. But all of the photos in the line-up show only the subject’s head and part or all of the subject’s neck, and these headshots do not suggest how tall the subjects are. We agree with the district court that the line-up was not unnecessarily suggestive.
Even if the identification evidence were suggestive, it would, nonetheless, be admissible under the second part of the test set forth in Ostrem. Under the second part of the test, the evidence is admissible if the totality of the circumstances shows that the witness’s identification has adequate independent origin. Ostrem, 535 N.W.2d at 921 The following five factors are evaluated in considering the totality of the circumstances:
1. The opportunity of the witness to view the criminal at the time of the crime.
2. The witness’s degree of attention.
3. The accuracy of the witness’s prior description of the criminal.
4. The level of certainty demonstrated by the witness at the photo display.
5. The time between the crime and the confrontation.
Id. (citing State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972))).
Bohaty viewed the criminal through a window during daylight hours from a distance of 25 yards or less. Bohaty testified that he had a clear line of sight from the window to the sidewalk where the criminal was bending down. Bohaty also testified that because firecrackers tend to annoy him when they are set off in the neighborhood, he immediately looked out the window and focused on the criminal, who appeared like he was going to light off another firecracker. If he lit another firecracker, Bohaty was going to go out and have some words with him. Bohaty testified that after seeing the gun, he tried to focus on as much detail as he could based on his involvement with neighborhood block club, crime-prevention activities.
Bohaty described the criminal as a tall, black male in his twenties, which is an accurate description of appellant, and when Bohaty identified appellant in the photographic line-up, he said that he was certain that appellant was the individual he had seen with the gun. Finally, Bohaty made his identification of appellant one day after witnessing the man with the gun. Considering the totality of the circumstances, Bohaty’s identification of appellant in the line-up has an adequate independent origin to be reliable.
2. CRIMJIG 3.04
“District courts are allowed considerable latitude in selecting the language in jury instructions.” State v. Vazquez, 644 N.W.2d 97, 99 (Minn. App. 2002). This court will not reverse a district court’s decision regarding a jury instruction unless the instruction constituted an abuse of discretion. Id. (citing Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).
In a supplemental pro se brief, appellant argues that the district court violated his constitutional rights by using CRIMJIG 3.04 without also instructing the jury that it did not have to agree in order to reach a verdict because a hung jury or a deadlocked decision is a verdict in itself. See 10 Minnesota Practice, CRIMJIG 3.04 (1999) (unanimous verdict-duty of jurors to discuss). Appellant contends that a hung jury is a legitimate end of a criminal trial, and under State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973), it was not correct for the district court to instruct the jury that in order to return a verdict, whether guilty or not guilty, each juror must agree with the verdict and that the verdict must be unanimous, without giving the entire instruction set forth in A.B.A. Standards for Criminal Justice 15-5.4 (3d ed. 1996) (formerly A.B.A. Standards Relating to Trial by Jury § 5.4).
Appellant contends that in Martin, “the court did not just approve 5.4 (A), they went on to protect and Constitutionally guarantee and to create a Minnesota State Protection of the Right to have a jury Properly Instructed on the (3rd) Third Verdict,” and that this “protection and guarantee was embodied in Rule (C) of 5.4.”
Appellant’s argument misconstrues Martin. Martin holds that “the procedures set forth in A.B.A. Standards Relating to Trial by Jury, § 5.4, are adopted for the trial courts in this state.” 297 Minn. at 372, 211 N.W.2d at 772 (emphasis added). Martin does not hold that all of standard 15-5.4 should be given as an instruction to the jury. Standard 15-5.4 states:
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself, but only after an impartial consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section (a). The court should not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
Paragraph (c) describes a procedure that may be followed if a jury is deadlocked; it is not a jury instruction. The district court did not abuse its discretion in instructing the jury.
3. Sufficiency of the evidence
Appellant next argues in his supplemental pro se brief that his sentence should be overturned because the evidence does not constitutionally satisfy a finding of guilt beyond a reasonable doubt that he was in possession of a firearm at any time.
In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The victim and Bohaty testified that they saw appellant with a gun. We must assume that the jury believed these witnesses. The testimony of two witnesses that they saw appellant with a gun is sufficient to support appellant’s conviction of possession of a firearm by an ineligible person.