This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Michael Edward Sparkman, a/k/a Ibn Michael El,


Filed January 20, 2004


Minge, Judge


Dakota County District Court

File No. K1022423


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges his conviction of aiding and abetting first-degree aggravated robbery, claiming that the setting in which the victims identified him as one of the robbers was unnecessarily suggestive and that the identification was wrongly admitted into evidence and denied him a fair trial.  Although the identification procedure was suggestive, because the identification of appellant was reliable, and the evidence of guilt was strong, the admission of the identification was not reversible error.



            This appeal presents the issue of whether a pretrial identification was flawed, and if so, whether its admission into evidence was reversible error.  When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred by not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  “When there is an error of constitutional dimension in a criminal trial, a new trial is required unless the state can show beyond a reasonable doubt that the error was harmless.”  State v. Scott, 501 N.W.2d 608, 619 (Minn. 1993).   

            Eyewitness identification is a source of great concern in the criminal justice system.  See, e.g., Manson v. Brathwaite, 432 U.S. 98, 111-12, 97 S. Ct. 2243, 2251-52 (1977).  Identifications are sometimes erroneous and have resulted in the conviction of innocent persons.  See, e.g.,Winn S. Collins, Improving Eyewitness Evidence Collection Procedures in Wisconsin, 2003 Wis. L. Rev. 529, 530.  Courts have adopted various tests to determine the admissibility of identification procedures.  The test for determining admissibility is “whether, under the totality of the circumstances, the procedures created a substantial likelihood of irreparable misidentification.”  State v. Oksanen, 311 Minn. 553, 553, 249 N.W.2d 464, 465 (1977) (quotation omitted). 

This test follows the general principle in Brathwaite, 432 U.S. at 113-14, 97 S. Ct. at 2252-53, for handling claims that a pretrial identification procedure violated an individual’s due process rights.  The district court must determine whether the identification procedure was unduly suggestive.  State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996).  “Included in that inquiry is whether the defendant was unfairly singled out for identification.”  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (alteration in original) (quotation omitted).  Although not recommended, a one-person show-up is not per se impermissibly suggestive.  Id. at 161-62.  In the end, the court must consider “whether, in light of the totality of the circumstances, the identification evidence is reliable.”  Jones, 556 N.W.2d at 912.

Minnesota has allowed into evidence identifications which are the product of suggestive procedures if the circumstances demonstrate that the witness’s identification is reliable.  See Taylor, 594 N.W.2d at 161-62.  When determining the reliability of identification evidence, courts consider the following factors: (1) the witness’s opportunity 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 descriptions of the criminal; (4) the witness’s level of certainty at the time the identification is made; and (5) the time between the crime and the confrontation.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (listing the same factors listed in Brathwaite, 432 U.S. at 114, 97 S. Ct. at 2253). 

            Here, the officer who responded to the victims’ call testified that he told the victims that three suspects matching the descriptions given were being held.  The two victims were brought to the scene in the same squad car when the normal routine was to bring them separately.  The three suspects stood in a line near a car that matched the description of the robbers’ vehicle.  While the suspects were not handcuffed when they were shown to the victims, three police cars were parked near the men, suggesting their guilt.  Finally, there was no emergency requiring the show-up to be done that night instead of waiting until the next morning and no reason why a photo array was not used.

            The foregoing facts indicate, and the district court found, that the identification in this case was suggestive.  However, as the district court recognized, such an unnecessarily suggestive identification does not require reversal if, under the five-factor test, the totality of the circumstances demonstrates reliability. 

(1)  Opportunity to View Suspects.  The record shows that the victims had several opportunities to view the suspects at close proximity.  The victims had a brief conversation with the suspects before the robbery.  After the two victims got into their car, the suspects came up to the victims’ open car window.  While the incident did take place at night in a poorly lit parking lot, the lighting was sufficient for the victims to obtain a partial license plate number, and appellant stuck his face into the car, inches away from one victim’s face.

            (2)  Degree of Attention.  Although this incident was brief and the victims were fearful, they displayed a sufficient degree of attention.  This is shown by the victims’ detailed descriptions of the suspects’ heights, hairstyles, and clothing.  Although a witness’s stress level is one factor to be considered when determining the reliability of an identification, “a witness who observes the offender before the offense . . . [is] under reduced stress and . . . gain[s] an additional measure of reliability.”  State v. Yang, 627 N.W.2d 666, 672-73 (Minn. App. 2001), review denied (Minn. July 24, 2001).   

            (3)  Accuracy.  The victims’ descriptions of the perpetrators focused on changeable features, such as hairstyles and shirt colors.   But, the victims were fairly accurate in their descriptions.  The victims were also able to identify the relative age of the suspects and distinguish which of the men was taller or shorter.

            (4)  Confidence.  The victims were confident that the suspects were the perpetrators.  We recognize that confidence does not necessarily equate to reliability.  See 3 Wigmore, Evidence in Trials at Common Law § 726 at 72 (rev. ed. 1970).  However, in this case, both victims without questioning or prompting and while they were driving up to the scene where the show-up occurred, told the officers that they had the right people.  The victims were able to identify the two robbers from three suspects and distinguish between the man who held the gun in the robbery and the man who stood near the car.  The officer further testified that the victims showed no hesitancy in their identification.

(5)  Promptness.  Prompt identification favors admission.  In this case, the 911 call came into the dispatch just after midnight, and the responding officer testified that the show-up occurred at 12:30 a.m.  No significant period of time passed to impair the victims’ memories.  These considerations support the reliability of the identification and its admission even though the identification was suggestive.  

There was additional evidence of appellant’s guilt to support his conviction.  The second robber, Latony Mills, testified at his plea hearing that appellant was the other robber.  Even though this accomplice changed his story at appellant’s trial, the jury listened to the testimony of all the witnesses, including appellant’s, and was free to accept or reject Mills’ testimony contradicting his earlier assertion that appellant was the other robber.  See State v. Dillard, 355 N.W.2d 167, 172 (Minn. App. 1984) (“Weighing the credibility of witnesses is exclusively the function of the jury.”), review denied (Minn. Oct. 30, 1984).   Further, when first meeting the police officers, both victims testified that the second robber was taller.  Mario Sparkman, the man appellant argues committed the crime, is only 5’6”.  Appellant is at least six inches taller.  Appellant admitted being at the scene and wearing a shirt the same color as the victims’ description.  Therefore, there was ample evidence, in addition to the identification, to support the jury’s finding that appellant was guilty of the robbery.  

Appellant urges this court to per se exclude suggestive eyewitness identifications or apply a more stringent test.  In reaching our result under the totality-of-the-circumstances test, we recognize that this test has been widely criticized.  Critics argue that because mistaken identifications are a significant cause of erroneous convictions, due process requires the fairest possible identification procedures.  See Wright v. United States, 404 F.2d 1256, 1262 (D.C. Cir. 1968) (Bazelon, Chief J., dissenting). 

Some states have adopted a per se rule in excluding pretrial identifications that are not reliable. See Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); People v. Edmonson, 554 N.E.2d 1254, 1255 (N.Y. 1990) (affirming established rule that suggestive pretrial identifications are to be excluded).  Alaska follows the Brathwaite approach but considers whether there were exigent circumstances necessitating the use of a suggestive show-up, such as whether the defendant was apprehended in direct flight from the crime, whether the witness’s identification was made at or near the scene of the incident, and whether the witness’s life was in peril requiring immediate identification.  Ex parte Frazier, 729 So.2d 253, 257 (Ala. 1998).  And finally, Kansas and Utah have adopted a modified Brathwaite analysis by using slightly different factors to evaluate the reliability of the identification.  State v. Hunt, 69 P.3d 571, 576 (Kan. 2003); State v. Ramirez, 817 P.2d 774, 781 (Utah 1991).

If we were considering the issue here without Minnesota precedent, we might adopt the per se rule.  It would reduce the risk of convicting innocent defendants due to mistaken identifications.  But, the caselaw in this state follows the totality-of-the-circumstances rule, and the facts of this case do not support a departure from the longstanding use of this test.  Nonetheless, we emphasize the risks involved in the use of flawed identification procedures.  To overcome such flawed identification, the facts and circumstances in the case must be stronger than would normally be required.  By thus raising the bar, successful prosecution of a case may be more difficult.