This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Andre K. Corbett,




Filed June 29, 2004


Toussaint, Chief Judge


Hennepin County District Court

File No. 01059923



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


J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


Roy George Spurbeck, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge, and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


 On appeal from a conviction for first-degree aggravated robbery, appellant argues that (1) the evidence in the record was insufficient to support the jury’s finding of guilt; and (2) because eyewitness identification was a critical issue, the trial court abused its discretion in denying appellant’s request for a jury instruction on the difficulties of cross-racial identification.  Because the jury verdict is supported by evidence in the record, and because the jury instructions given by the trial court accurately reflect the law in this jurisdiction, we affirm.




Sufficiency of evidence

Appellant Andre Corbett challenges the sufficiency of the evidence leading to his first-degree aggravated robbery conviction, asserting that the uncorroborated eyewitness testimony of Jennifer Brandvold, an employee of the shoe store Corbett was convicted of robbing, cannot be considered reliable because Brandvold’s face-to-face exposure to the perpetrator was limited; nearly two months passed between the crime and the photographic lineup; and simultaneous display of all six photographs in the photographic lineup increased the risk of misidentification.  Appellant’s argument is unsupported by the record.  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 therefore assume 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

We are convinced that the record here, when viewed in the light most favorable to the conviction, supports the jury’s verdict.  Brandvold testified that the perpetrator was six inches away from her at the time the robbery was committed, and with every step backward she took, the perpetrator took a step forward.  She therefore was face-to-face with the robber the entire time the crime was taking place.  Further, despite nearly two months between the crime and the photographic lineup, Brandvold’s identification of Corbett took only a “couple seconds,” and she had no doubt about the identification.  She identified Corbett in court as well, and was equally convinced that he was the man that committed the robbery. 

And though Corbett asserts that the two-month gap between the offense and the identification “calls into doubt” Brandvold’s testimony, this court has affirmed cases where much longer “gaps” have occurred.  E.g., State v. Mesich, 396 N.W.2d 46, 51 (Minn. App. 1986) (27 months), review denied (Minn. Jan. 2, 1987).  The jury was instructed to take this “gap” into account, and made its credibility determination accordingly. 

Finally, with respect to the argument that simultaneous display of all photographs leads to increased misidentification, Corbett cites only to a scholarly article, and fails to cite any caselaw from any jurisdiction that has adopted this theory.  Indeed, simultaneous photographic lineups are often used in Minnesota.  See, e.g., State v. Lindsey, 632 N.W.2d 652, 665 (Minn. 2001) (“Nothing in the lineup or the procedures used suggests Lindsey was singled out for identification.”); State v. Robinson, 604 N.W.2d 355, 359-60 (Minn. 2000).  Because Corbett fails to offer any precedent supporting his assertion that a simultaneous display of the photographic lineup unfairly prejudiced him, we decline to address this issue further.


Jury instructions on cross-racial identification

Corbett also argues that the trial court’s denial of his request for a jury instruction on cross-racial identification denied him his right to a fair trial.  He argues that without such instruction, the jury “had no knowledge of the potential impact cross-racial identification could have had on the accuracy of [Brandvold]’s identification.”  A brief look at the trial transcript, however, reveals that the jury was indeed informed of this potential impact – albeit by defense counsel – and that the court accurately instructed the jury on the applicable law.

The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  If the jury charge as a whole “correctly states the law in language that can be understood by the jury there is no reversible error.”  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citation omitted).

The trial court here gave the general instruction on the evaluation of witness testimony.  It also gave the following cautionary instruction on identification testimony, adopted nearly verbatim from CRIMJIG 3.19, that charges jurors to

consider such factors as the opportunity of the witness to see the person at the time of the alleged offense; the length of time the person was in the witness’ view; the circumstances of that view, including light conditions and the distance involved; the stress the witness was under at the time; and the lapse of time between the alleged offense and the identification. 


See 10 Minnesota Practice, CRIMJIG 3.19 (1999).  This instruction accurately states the law in Minnesota, and it was not an abuse of discretion for the trial court to issue it.

Corbett urges us to consider the New Jersey Supreme Court’s holding in State v. Cromedy, 727 A.2d 457 (N.J. 1999), where a trial court’s failure to instruct the jury on the problems of cross-racial identification was deemed reversible error.  Id. at 467.  In Cromedy, like here, the appellant was convicted with uncorroborated witness testimony from a victim of another race.  Id. at 459.  After analyzing caselaw and empirical studies regarding cross-racial identification, the New Jersey Supreme Court determined that problems with respect to cross-racial identification were so prevalent as to warrant such instruction in all appropriate cases.  Id. at 467.

But even with such a mandate, the Cromedy court acknowledged that “[c]ourts typically have refused the instruction where the eyewitness or victim had an adequate opportunity to observe the defendant . . . and/or there was no evidence that race affected the identification.”  Id. at 464.  It further noted cases from numerous jurisdictions declining such instruction, which found “that cross-racial identification simply is not an appropriate topic for jury instruction.”  Id. at 465.  Those courts, Cromedy noted, “have determined that the cross-racial instruction requires expert guidance, and that cross-examination and summation are adequate safeguards to highlight unreliable identifications.”  Id.

We are convinced for two reasons that the requested jury instructions would be inappropriate here.  First, Brandvold had an adequate opportunity to observe the perpetrator in a well-lit area for a substantial length of time, and quickly identified Corbett as that perpetrator.  Thus, unlike the victim in Cromedy, there was no question as to Brandvold’s ability to recognize and identify the defendant.  See id. at 459 (victim unable to identify her assailant after being shown “many slides and photographs, including a photograph of defendant”). 

Second, our precedent establishes that Minnesota is among those jurisdictions declining to embrace Cromedy’s rationale.  In State v. Miles, the Minnesota Supreme Court affirmed the district court’s refusal to admit expert testimony on the difficulty of cross-racial identification.  585 N.W.2d 368, 371-72 (Minn. 1998).  The court noted that a defendant’s right to a fair trial is best protected from the danger of unreliable eyewitness identification by a variety of other safeguards of our trial system:



Prosecutors do not have to prosecute if they think the evidence is unreliable . . . Effective cross-examination and persuasive argument by defense counsel are additional safeguards.  Proper instruction of the jury on the factors in evaluating eyewitness identification testimony and on the state’s burden of proving identification beyond a reasonable doubt are other safeguards.  The requirement of jury unanimity is also a safeguard.  Finally, this court has the power to grant relief if it is convinced that the evidence of a convicted defendant’s guilt was legally insufficient.


Id. (quoting State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980)) (footnote omitted).

Here, the record reflects that proper safeguards were in place.  The trial court instructed the jury on evaluating eyewitness identification testimony and the state’s burden of proof.  The eyewitnesses were cross-examined about the reliability of their testimony.  In closing argument, defense counsel argued extensively about the unreliability of the identification.  Defense counsel was allowed to argue about the difficulty people of one race have in identifying people of another race and even used the phrase “cross-racial identification.”  After closing arguments, the trial court instructed the jury on the presumption of innocence, the state’s burden of proof, and eyewitness identification testimony, and gave the cautionary instruction on identification testimony.  It is therefore clear that the trial court did not abuse its discretion; it applied each of the proper safeguards noted in Miles, and any concerns raised about cross-racial identification were addressed throughout the course of the trial. 

            Because the record contains evidence sufficient for a juror to reasonably conclude that Corbett was guilty beyond a reasonable doubt, and because the jury instructions provided adequate safeguards to ensure that the jury properly weigh the credibility of the witness testimony, we will not disturb the jury’s verdict.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.