This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1491

 

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Tyrone Davis,

Appellant.

 

 

Filed August 31, 2004

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. K103734

 

 

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 Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

 

††††††††††† Considered and decided by Schumacher, Presiding Judge; Anderson, Judge; and Halbrooks, Judge.


U N P U B L I S H E D†† O P I N I O N

ROBERT H. SCHUMACHER, Judge

On appeal from a judgment of conviction for assault and ineligible possession of a firearm, appellant Steven Tyrone Davis argues the district court erred by denying his motion to suppress pretrial identification evidence and abused its discretion by denying his motion for a mistrial.† We affirm.

FACTS

In the early morning of October 21, 2002, R.C. was shot multiple times.† R.C. told police the perpetrators were two African American males, approximately six feet tall, who were wearing tan and yellow jackets.† Later that week, police received a tip from A.P. that Davis had admitted to shooting R.C..† In January 2003, N.P. informed police that Davis told her on that he might have shot R.C.† Based on this information, police showed R.C. a photographic line-up containing the pictures of Davis and five other men.† R.C. selected the photo of Davis and said that he was 85% sure that Davis was the shooter.† At R.C.'s request, police showed him a profile photograph of Davis.† When R.C. saw this photograph, he identified Davis as the shooter.†

The state charged Davis with first-degree assault, second-degree assault, and possession of a firearm by an ineligible person.† Davis moved to suppress R.C.'s identification of him as the shooter, arguing the identification was tainted by an impermissibly suggestive photographic line-up.† The district court denied the motion and a jury trial was held.† The charges against Davis were read during the district court's preliminary instructions to the jury.† While reading the charge of possession of a firearm by an ineligible person, the court stated that Davis has a prior conviction for "a crime of violence."† Davis moved for a mistrial, arguing that he had intended to stipulate that he was ineligible to possess a firearm and that the jury might be prejudiced by learning Davis has been convicted of a "crime of violence."† The district court denied the motion.†

During the trial, R.C. identified Davis as the person who shot him.† The jury found Davis guilty of the charged crimes and he was sentenced to 122 months imprisonment for first-degree assault and 60 months concurrent imprisonment for being a felon in possession of a firearm.

D E C I S I O N

1.†††††††† An appellate court reviews pretrial motions to suppress evidence by independently considering the facts to determine, as a matter of law, whether the district court erred in its decision.† 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).†

††††††††††† To determine whether a pretrial identification procedure violated appellant's due process rights, this court applies a two-part test.† State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).† The first inquiry focuses on whether the procedure was unnecessarily suggestive.† Id.† Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification. Id. (citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 970-71 (1968)).†


If the identification procedure was unnecessarily suggestive, the second inquiry focuses on whether the identification caused "a very substantial likelihood of irreparable misidentification."† State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (quotation omitted).† The 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.

This court employs five factors for reviewing the totality of the circumstances surrounding the witness's opportunity to view the defendant.† Ostrem, 535 N.W.2d at 921.† These factors include the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the witness's level of certainty at the photo display, and the time between the crime and the confrontation.† Id.

Davis argues the district court erred by failing to exclude the pretrial identification evidence because the photographic line-up was impermissibly suggestive.† The record contains conflicting evidence as to what occurred during the photographic line-up.† R.C. first testified that while he was looking at the line-up he pointed to Davis's picture and informed a police officer that he "could" be the shooter.† R.C. then testified that a police officer actually noticed he was focusing on Davis's picture and asked him why, and it was at that point he said Davis might be the shooter.

The officer who administered the line-up did not testify that he asked R.C. why he was focusing on Davis's photograph.† Rather, he testified that during the line-up R.C. said he was "85%" sure Davis was the shooter.† Both R.C. and the officer testified that R.C. was uncertain about the identification because he had seen the shooter's nose from a different angle during the incident.† In response to this uncertainty, the officer showed R.C. a photograph of Davis's profile.† From this profile, R.C. was able to identify Davis as the shooter.† The officer then informed R.C. that Davis had confessed to the shooting.†

Davis challenges what police may have said to R.C. during the line-up, that police only showed R.C. Davis's profile, and that police told R.C. Davis had confessed to the shooting.† Davis asserts R.C.'s in-court identification of him is tainted by the impermissibly suggestive line-up.

†The district court found that R.C. identified Davis as the shooter with "85 percent certain[ty]" during the photographic line-up "without any prompting or suggestion by the police."† Although there is conflicting evidence in the record regarding how R.C. identified Davis, we defer to the district court's credibility determination.††† See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (stating we defer to factfinder on determinations of credibility).† Because R.C. selected Davis from the line-up with a significant degree of certainty prior to viewing the photograph of Davis's profile, we conclude that showing R.C. the second photograph was not impermissibly suggestive.† See State v. Cobb, 279 N.W.2d 832, 833-34 (Minn. 1979) (concluding photographic lineup containing two photos of defendant was not impermissibly suggestive where witness identified defendant as perpetrator before viewing second photo).

In addition, the fact that police informed R.C. about Davis's confession after R.C. identified him as the shooter does not taint R.C.'s in-court identification of Davis.† See United States v. Mefford, 658 F.2d 588, 591 (8th Cir. 1981) (concluding that district court did not err by admitting pretrial and in-court identifications of defendant into evidence when police informed witnesses suspect had been apprehended prior to pretrial identification).†

Even if we were to assume that some aspect of the photographic line-up was unnecessarily suggestive, the record supports the conclusion that Davis's due process rights were not violated.† The record shows that R.C. had ample opportunity to view the perpetrators at the time of the crime.† Prior to the shooting, R.C. walked past two men while en route to use a pay phone and said, "what's up" as he passed them.† R.C. "[kept] an eye on them" while he used the payphone for "a minute or two."† After R.C. left the phone booth, the same two men then "stepped out of the bushes" less than a foot from R.C. and said, "This is a stick up."† Although it was dark out, a streetlight provided enough light for R.C. to get a good look at the perpetrators for a few seconds before he ran away.†

The record also shows that R.C. displayed a sufficient degree of attention during the incident, which enabled him to provide an accurate description of the perpetrators to police.† He was able to tell police the perpetrators were African American, that their jackets were tan and yellow, and that they were approximately six feet tall.† R.C. testified that he was also able to observe that one perpetrator was wearing a hat and wore his hair in braids while the other had short hair.† The record shows that Davis is African American, that he is 5'11'' tall, and that he was wearing a white-colored jacket the night of the incident.†† The record also shows that the other perpetrator was wearing a cream-colored jacket and a hat on the night of the shooting, and that he regularly wears his hair in braids.†

Finally, the record shows that R.C. was confident that Davis was one of the perpetrators.† R.C. identified Davis as the shooter during the photographic line-up.† And when R.C. saw the photograph of Davis's profile, he declared, "That's him."† There is no evidence in the record that R.C. had ever questioned whether his identification was correct.† Although approximately three months elapsed between the shooting and the identification, the fact that R.C. had an opportunity to observe the perpetrators prior to the crime makes his identification more reliable.† See State v. Yang, 627 N.W.2d 666, 672-73 (Minn. App. 2001) (stating witness who observes offender before offense is under reduced stress and gains additional measure of reliability), review denied (Minn. July 24, 2001).† In addition, at least two witnesses testified at trial that Davis had confessed to them that in October of 2002 he thought he shot somebody and he fired a gun, but he was not sure if he shot anybody.†† See State v. Dillard, 355 N.W.2d 167, 174 (Minn. App. 1984) (holding second photo line-up seven months after crime was substantial lapse but did not render identification unconstitutional where several witnesses identified defendant and witnesses were available for cross-examination), review denied (Minn. Oct. 30, 1984).

Davis urges this court to adopt "a per se rule excluding unreliable pretrial identification evidence."† The test for determining admissibility of in-court testimony based on allegedly tainted identification procedures 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 court will not adopt a "per se" test for the admission of identification evidence when the supreme court, under similar circumstances, has held that the reliability of identification procedures is tested under the totality of circumstances.† See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating this court's function is limited to identifying and correcting errors).  

Under the totality of the circumstances, even if the line-up had been suggestive, it did not give rise to a substantial likelihood of irreparable misidentification.† Thus, the district court did not err by denying Davis's motion to suppress the identification evidence.

2.†††††††† This court reviews a district court's denial of a motion seeking a mistrial for an abuse of discretion.† State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).† Davis argues the district court abused its discretion by denying his motion for a mistrial because the court informed the jury he has a prior conviction for a "crime of violence" before he was able to stipulate that he was ineligible to possess a firearm, which he believes prejudiced the jury against him.†

The record shows that there were at least two hearings prior to the trial in this case.† Davis never informed the court during these hearings that he intended to stipulate he was ineligible to possess a firearm.† Similarly, on the day of trial, Davis never informed the court prior to the preliminary jury instructions that he was willing to make such a stipulation.† Thus, it is unclear how the district court abused its discretion by denying Davis's motion for a mistrial.†

Even assuming the district court abused its discretion by denying the motion, any such error would be harmless.† The record shows that the district court gave a curative instruction to the jury regarding the charges against Davis.† The court informed the jury that it had made a "mistake" while "reading the preliminary instructions and that mistake related to the reading of the counts from the charging instrument."† The court informed the jury it would "substitute the reading of the counts today as a part of the preliminary instructions.† And these counts are the counts that the Defendant is charged with."† The court then reread the charges.† Regarding the charge of felon in possession, the court stated Davis "did wrongfully and unlawfully possess a firearm while ineligible to possess one."

Because the jury was informed the court made a mistake in reading the charges, and because the jury was informed to substitute the reread charges, which omitted the crime-of-violence language, for the charges as originally read, it is unlikely that the jury was prejudiced against Davis.† See State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (stating appellate courts assume that jury followed district court's instructions).

Davis also raises a claim of ineffective assistance of counsel, arguinge his attorney failed to stipulate he was ineligible to possess a firearm before the court read the preliminary instructions.† To prevail on a claim for ineffective assistance of counsel Davis "must affirmatively prove that his counselís representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different."† Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations omitted).

This court may dispose of a claim for ineffective assistance of counsel when the appellant fails to prove that there was a reasonable probability that the outcome would have been different.† See id. at 563; see also Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069-70 (1984).† We conclude that Davis was not prejudiced by the crime-of-violence language contained in the original preliminary instructions and has failed to show how the outcome at his trial would have been different if his counsel had stipulated prior to trial that Davis was ineligible to possess a firearm.†

Affirmed.