This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Clifford NMN Upshaw, Jr.,



Filed December 21, 2004


Klaphake, Judge


Hennepin County District Court

File No. 03010852


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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Mary Dunnewold, Special Assistant Public Defender, Hamline University School of Law, 1536 Hewitt Avenue, St. Paul, MN  55104 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Clifford Upshaw, Jr., was convicted of first-degree burglary following a jury trial.  Appellant challenges his conviction, arguing that the district court erred by refusing to suppress eyewitness identification evidence that was based on a photo lineup that appellant describes as unnecessarily suggestive.  Appellant also argues that the prosecutor committed prejudicial misconduct in his opening statement and on cross-examination.

            Because the photo lineup was not unnecessarily suggestive and because the prosecutor’s statements and questioning, while misconduct, did not deprive appellant of his right to a fair trial, we affirm.


            1.         Identification Procedures

            This court independently reviews facts and determines as a matter of law whether the district court erred in its pretrial orders on motions to suppress evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The standard for evaluation of eyewitness identification involves a two-part test:  (1) whether the procedure used was unnecessarily suggestive; and (2) whether, if the procedure was unnecessarily suggestive, the totality of circumstances nevertheless establishes that the evidence is reliable.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).[1] 

            A procedure is suggestive if it unfairly singles out a defendant for identification.  Id.  Generally, photo lineups consisting of several pictures of people with a reasonable similarity in appearance to the defendant have been deemed to be not suggestive.  See State v. Yang, 627 N.W.2d 666, 673-74 (Minn. App. 2001) (concluding photo line-up not impermissibly suggestive, even though appellant was the only Hmong, where other photos were of Asian males and bore general physical resemblance to appellant), review denied (Minn. July 24, 2001); State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986) (concluding that photo line-up of six men of same race and similar description not impermissibly suggestive, where defendant’s facial scar not too conspicuous), review denied (Minn. Jan. 16, 1987); State v. Vance, 392 N.W.2d 679, 683 (Minn. App. 1986) (finding that photo line-up was not impermissibly suggestive although defendant was the only one with a mustache that extended past corners of his mouth), review denied (Minn. Oct. 29, 1986); State v. Blegen, 387 N.W.2d 459, 463 (Minn. App. 1986) (concluding that photo line-up was not impermissibly suggestive, although defendant was wearing jail clothing in photograph and all photos were of men with mustaches, even though victim stated that her attacker was clean-shaven), review denied (Minn. Jul. 31, 1986). 

            The description provided by the victim of the intruder in her apartment corresponded closely enough with appellant’s appearance to lead the investigating officer to focus on appellant as a possible suspect.  The photographic lineup that the victim inspected consisted of black-and-white pictures of appellant and five other men whose appearances generally coincided with both appellant’s physical appearance and the victim’s description of the intruder.  This lineup was not impermissibly suggestive.

            Even if we were to conclude that the photo lineup was suggestive, under the totality of the circumstances test, the identification evidence is reliable.  Ostrem, 535 N.W.2d at 921.  Five factors are considered in making this determination:  (1) the opportunity of the witness to view the criminal; (2) the degree of attention the witness paid to the criminal; (3) the accuracy of the witness’ prior description of the criminal; (4) the degree of certainty the witness demonstrates in identifying the photo; and (5) the time between the crime and the photo line-up.  Id. 

            Here, the victim spoke directly to appellant and escorted him out of her house, spending about two minutes on the procedure.  Her first description was fairly detailed, and she was confident that she would be able to identify the suspect.  The victim immediately selected appellant’s photo from the line-up and was certain that he was the individual she found in her house.  The identification occurred within a month after the incident; while this is not immediate, it is not an inordinately long time after the incident.  Based on this evidence, we conclude that the photo lineup was reliable and not unnecessarily suggestive, and that the district court did not err by refusing to suppress eyewitness identification testimony.

            2.         Prosecutorial Misconduct

            “The determination of whether there was [prosecutorial] misconduct and whether that misconduct was prejudicial generally lies within the sound discretion of the district court, which is in the best position to measure its effect.”  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).  The district court’s determination will be overturned only if the misconduct is so serious that the defendant’s right to a fair trial was denied.  Id.  In a close factual case, cumulative errors may have the effect of depriving an individual of a fair trial, thus warranting the grant of a new trial.  State v. Erickson, 610 N.W.2d 335, 340 (Minn. 2000). 

            Appellant contends that in the prosecutor’s opening statement, on three occasions he improperly alluded to appellant’s arrest on other charges.  Appellant’s attorney immediately moved for a mistrial, which the court denied, and later renewed his motion for a mistrial.  On both occasions, the district court stated that the prosecutor’s reference to an arrest appeared to be the arrest of appellant on the matter before the court, not an arrest of appellant on other charges.  The prosecutor’s remarks were carefully phrased to create that impression, although the arrest alluded to was indeed for other charges.  After reviewing the record, we conclude that the district court did not abuse its discretion by refusing to grant a mistrial based on the prosecutor’s remarks. 

            Appellant also asserts that the prosecutor committed misconduct by asking appellant on cross-examination if he was saying that the victim was lying in her testimony.  Such questions are viewed with concern, because they suggest to the jury that in order to acquit, they must determine that a witness lied during testimony.  State v. Pilot, 595 N.W.2d 511, 516-17 (Minn. 1999).  Further, these questions are viewed as “improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.”  Id. at 518.

            In order to grant a mistrial after a “were they lying” question, the district court must find that the misconduct so prejudiced the jury that the defendant was deprived of his right to a fair trial.  State v. Houston, 654 N.W.2d 727, 736 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003).  The question here was isolated, and the district court gave a curative instruction based on the rationale of Pilot, 595 N.W.2d at 518.  When considered in light of the whole trial, we conclude that appellant was not deprived of his right to a fair trial and we therefore affirm appellant’s conviction.


[1] Appellant urges us to adopt a new standard for evaluation of eyewitness identification that eliminates the totality of the circumstances test.  This court is primarily an error-correcting court; as such, we do not make new law and must follow established judicial precedent.  St. Aubin v. Burke, 434 N.W.2d 282, 283 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989).