This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Wiley Lee Crawford,
Ramsey County District Court
File No. KX-03-456
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Blvd. W., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Benjamin Jon Butler, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Willis, 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 conviction of simple robbery, appellant argues that the police lacked probable cause to arrest him, that the one-person show-up conducted after his arrest was impermissibly suggestive, that this jurisdiction should apply stricter scrutiny to show-up identifications, and that the evidence on record was insufficient to support his conviction. Because (1) we find no misconduct on the part of the police under the circumstances; (2) we decline to reverse years of established precedent regarding show-up identifications; and (3) the record supports the jury’s verdict, we affirm.
On December 24, 2002, at approximately 5 a.m., Leslie Eddington was seated in her vehicle, writing Christmas cards as she waited for her shift to begin at a nearby coffee shop. She did not notice a man approaching the driver’s side of the vehicle, who suddenly opened her car door, leaned into the car, and pressed his hand into her face. The man instructed Eddington not to look at him, grabbed a Target shopping bag containing Christmas gifts from her lap, and demanded to know where her purse was. He fled after Eddington surrendered the black daypack she used as a purse.
Though Eddington was unable to give a full description of the perpetrator to police, she described him as a black male of unknown age and medium build, wearing a light-colored knit hat, a dark hooded sweatshirt, and a black jacket. This partial description was radioed to other officers, as was a description of the stolen items and the vehicle aiding the perpetrator’s escape.
Officer James LaBarre was patrolling about a mile and a half from the scene of the crime when he noticed a black male in a dark hooded sweatshirt in the passenger side of a vehicle that matched the description in the police dispatch. Because there were few vehicles on the road that holiday morning, Officer LaBarre suspected that the passenger might be the perpetrator, followed the vehicle, and stopped it after it had pulled into a nearby apartment complex parking lot.
When Officer LaBarre approached the vehicle, he noticed a white plastic Target bag between the passenger’s legs and what appeared to be Eddington’s daypack on the floor. Recognizing these items from the description given in the police dispatch, LaBarre ordered the passenger out of the vehicle and placed him under arrest. A post-arrest search of the passenger found Eddington’s credit cards and identification in his pockets. The passenger was later identified as appellant Wiley Lee Crawford.
Officer LaBarre then radioed Officer Henry
Price, the officer who responded to Eddington’s initial call, and requested
that Eddington come to the parking lot for an
identification show-up. Eddington complied, and Officer Price drove Eddington to the parking lot in his squad car.
When Eddington arrived, Officer LaBarre escorted Crawford, who was in handcuffs, to the front of the squad car and Officer Price turned on his spotlight. LaBarre was holding Crawford tightly on his upper arm, and made Crawford rotate 360 degrees. Eddington said that Crawford looked like the man who had robbed her, positively recognizing his clothes and skin color, but could not identify him with absolute certainty. Crawford was then taken into custody and charged with simple robbery, a felony under Minn. Stat. § 609.24 (2002).
Before trial, Crawford moved to suppress (1) all evidence flowing from his arrest, arguing that the police lacked probable cause to arrest him and that therefore all evidence was “fruit of the poisonous tree”; and (2) all testimony relating to the show-up, asserting that it was impermissibly suggestive. The trial court denied Crawford’s motion, and the evidence was subsequently admitted at trial. A jury found Crawford guilty, and he now appeals.
Crawford first argues that the trial court erred in admitting evidence from what he alleges was an unconstitutional seizure, asserting that the police lacked probable cause to arrest him under the circumstances, and failed to “investigate in even the most minimal way.” In light of the circumstances, we cannot agree.
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 in refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). The underlying factual findings are subject to a clearly erroneous standard of review. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Crawford concedes that the police had a reasonable basis justifying the initial stop of the vehicle, given the timing and location of the stop in relation to the timing and location of the robbery, the similarity of Crawford’s dress and appearance to the police description, and the limited number of vehicles on the road that holiday morning. And he acknowledges that once Officer LaBarre had stopped the vehicle, LaBarre saw in plain view a Target shopping bag between Crawford’s legs and a black daypack on the floor of the vehicle, items matching the description of the items reported stolen. He contends, however, that such “innocuous” items as a daypack and a Target shopping bag cannot justify an arrest without further investigation.
“Probable cause” means that a police officer may arrest a person without a warrant if the officer has “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978) (quoting State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 122-23 (1965)). While probable cause requires something more than mere suspicion of criminal activity, it requires less than the evidence necessary for conviction. State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000). To determine if probable cause exists to make a warrantless arrest, a court must look to the “information that police took into consideration when making the arrest, not what they uncovered thereafter.” State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998). The existence of probable cause is examined under the “totality of the circumstances” test. State v. McCloskey, 453 N.W.2d 700, 702-03 (Minn. 1990).
Here, considering the “totality of the circumstances,” the arrest is clearly justified. Contrary to Crawford’s assertions, the Target shopping bag and the handbag were not “innocuous” when they matched the description of the stolen property, were recovered at 5 a.m. on a holiday morning from a vehicle that matched the description of the vehicle in which the suspect fled, and were found between the legs of a man matching the description of the suspect. These facts, coupled with the facts supporting Officer LaBarre’s initial stop of the vehicle, provided probable cause.
Crawford next contends that all evidence relating to the show-up identification should have been suppressed, arguing that the identification procedure was unnecessarily suggestive.
Whether identification evidence should be admitted depends on the reliability of the identification. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). An appellate court employs a two-part test to determine whether pretrial identification evidence is admissible. Id. First, the court determines whether the identification procedure was “unnecessarily suggestive.” Id. (quotation and citation omitted). “Included in that inquiry is whether the defendant was unfairly singled out for identification.” Id. (emphasis in original) (quotation and citation omitted). Second, if the court determines that the identification procedure was unnecessarily suggestive, the court must then determine whether circumstances surrounding the identification caused “a very substantial likelihood of irreparable misidentification.” Id. (quotations omitted). The court’s ultimate concern is whether the techniques employed by the police influenced the witness’s identification. Id. Thus, a witness’s identification is considered reliable if the totality of the circumstances demonstrates that the identification has an adequate independent origin despite any suggestive procedure. Id.
In State v. Anderson, 657 N.W.2d 846 (Minn. App. 2002), this court reversed the conviction of a man who was singled out by police based on an eyewitness’s description, brought back to the scene in a squad car, presented in handcuffs, flanked by a uniformed police officer, and described to the eyewitness prior to identification as “a person in custody who matched the witness’s description.” Id. at 851. We concluded that evidence stemming from the show-up identification was inadmissible under the totality of the circumstances because (1) the show-up was impermissibly suggestive; (2) the witness had an obscured view of the crime while it was in progress; and (3) the witness was unable at trial to identify the suspect after positively identifying him in the show-up, indicating that the positive identification did not have an adequate independent origin. Id. at 851-52.
Similarly here, Crawford was singled out due to the eyewitness’s description, was flanked by a uniformed police officer, and was presented in handcuffs and in a police spotlight. Unlike Anderson, however, the record contains no comments made by police to Eddington about Crawford matching her initial description, and Crawford was not led back to the scene of the crime. More importantly, Eddington remained consistent in her testimony, stating that she positively recognized the defendant’s skin color, hand features, and clothing, but that she could not be entirely certain that he was the perpetrator because she never saw the perpetrator’s face when the robbery occurred. Because the court’s “ultimate concern” is the police’s undue influence over a witness’s identification, Eddington’s consistent testimony both before and after the show-up indicates that the procedure here was not unnecessarily suggestive.
Further, even if a show-up is unnecessarily suggestive, it may still be deemed reliable by a court after a consideration of (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 same factors set out in United States v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977)). Here, though Eddington was unable to view the perpetrator’s face, she was able to ascertain his race, gender, stature, hand size, and clothing at the time of the crime. She also was alert at the time of the crime and had a high degree of attention. She consistently and accurately described the perpetrator, again using race, gender, stature, hand size, and clothing. Further, the time between the crime and the confrontation was minimal. These factors, considered together, weigh toward admissibility.
Crawford asserts in the alternative that this court should establish a new, stricter standard for determining whether to admit unnecessarily suggestive show-up identifications at trial. As an intermediate appellate court, the function of this court is “primarily decisional and error correcting.” St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). “Only when there are no statutory or judicial precedents to follow will the Court of Appeals make new law.” Id. Here, Crawford acknowledges that the “totality of the circumstances” test is firmly rooted in this jurisdiction. See, e.g., State v. Lambert, 278 N.W.2d 57 (Minn. 1979). As such, we decline to adopt a new position that contradicts decades of established precedent.
Crawford next argues that the evidence was insufficient to prove beyond a reasonable doubt that he was the perpetrator of the crime. 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 a light most favorable to the conviction, is sufficient to permit 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 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).
Here, Crawford was arrested shortly after and a short distance away from the robbery. His clothing, race, and gender matched the description of the perpetrator, and he was in a vehicle matching the description provided by dispatch. These facts, coupled with Officer LaBarre finding Eddington’s belongings in Crawford’s possession, are clearly sufficient to justify the jury’s verdict when “viewed in the light most favorable to conviction.” Webb, 440 N.W.2d at 430. Therefore, the jury’s verdict will not be disturbed.
Crawford raises three additional issues in a supplemental pro se brief. First, he asserts that Officer LaBarre planted evidence in the police record to “pad” the case against him. But the record here does not contain any of the documents Crawford now asserts were placed in the police report, and no such evidence was used at trial. We therefore cannot find any merit in Crawford’s claim.
Second, Crawford contends that the prosecutor misled the jury by stating or inferring that Crawford fled the scene in his own vehicle. There is no evidence, however, that Crawford was prejudiced in any way by the two occasions in which the prosecution made such statements. On the first occasion, the prosecutor immediately corrected herself and noted that Crawford was, in fact, a passenger in the vehicle. The second instance, though not corrected, was merely cataloguing the evidence found at the time of Crawford’s arrest. We will overturn a conviction only when misconduct, “considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted). Here, the prosecutor’s misstatements are not so serious that they have constitutional ramifications. As such, this argument also fails.
Third, Crawford asserts that the prosecution struck the only potential minority juror based solely on race. The defendant in a criminal case, when alleging a racial basis for the prosecution’s striking of a potential juror, must show “that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the venire members of the defendant’s race” for racially discriminatory reasons. State v. Bowers, 482 N.W.2d 774, 776 (Minn. 1992). Here, the record is replete with evidence that the juror was struck for reasons other than race: the juror was convinced that the prosecutor in this case actually prosecuted the juror previously, and that the judge presiding over this case presided over that case too. He claimed that he was mistakenly identified and arrested in the past. He also claimed that the police had “roughed him up” on several occasions because he had been “mouthing off” to them. Considering the accusations in the present case, the court’s finding that Crawford failed to establish that the prosecution’s strike was racially motivated will not be disturbed.
 The record indicates that the original description of the vehicle, given by an employee of a nearby bakery, was “big and brown.” This description was later changed to, and radioed to other officers as, small and dark. The record is silent as to why this change was made.