This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the

Welfare of W.C.B.


Filed March 15, 2005

Klaphake, Judge


Hennepin County District Court

File Nos. J5-04-52664 & 181392


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant W.C.B.)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant W.C.B. was adjudicated delinquent on one count of first-degree burglary and one count of gross misdemeanor interference with an emergency call.  Minn. Stat. §§ 609.582, subd. 1(a), .78, subd. 2 (2002).  Appellant challenges the adjudication of delinquency, alleging that the district court erred by failing to hold an omnibus hearing, by failing to obtain a waiver of his right to testify, and by admitting evidence of eyewitness identification.  Appellant further argues that evidence of identity was not sufficient beyond a reasonable doubt.

            Because (1) the district court’s failure to hold an omnibus hearing, while error, was harmless; (2) appellant, by remaining silent, is presumed to have waived his right to testify; and (3) in the totality of the circumstances, the eyewitness identification was reliable and sufficient to identify appellant, we affirm.


1.         Omnibus Hearing

            Minn. R. Juv. Delinq. P. 12.01 states that the court “shall hold an omnibus hearing . . . to determine issues raised pursuant to Rule 10 or 11 upon its own motion or upon the motion of the child’s counsel or the prosecuting attorney.”  Rule 12.01 further states that “[a]ny issue not determined prior to trial shall be determined as part of the trial.”  Id.  Minn. R. Juv. Delinq. P. 10.02 requires the prosecuting attorney to disclose whether identification procedures have been used; this disclosure is required to be made within five days after entry of a not guilty plea or within five days after demand by the child’s counsel.  Minn. R. Juv. Delinq. P. 11.02 requires that the court “determine whether there are any constitutional or evidentiary issues” at the pretrial hearing; if such issues are raised, the court “shall” schedule an omnibus hearing.  The child’s counsel may also make a written demand for an omnibus hearing if no pretrial conference is held.  Id.

            Based on the slight record before us, none of these procedures was followed.  Neither the attorneys nor the district court raised the issue of an omnibus hearing, despite the clear presence of identification procedures.  Further, Minn. Stat. § 260B.163, subd. 10 (2002), states that the child must expressly waive any right reserved under Minn. Stat. ch. 260B, including rights governed by the juvenile delinquency rules, which make it error to fail to address the issue of an omnibus hearing.

            Because appellant failed to object to or raise this issue at trial, there is a presumption of waiver.  State v. Gustafson, 610 N.W.2d 314, 318 (Minn. 2000).  But the reviewing court has discretion to examine this issue if there is plain error affecting substantial rights.  Id. A defendant may obtain relief from plain errors affecting substantial rights, if the error had the effect of depriving the defendant of a fair trial.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002). 

            In In re Welfare of M.E.M., 674 N.W.2d 208, 214 (Minn. App. 2004), which also involved a challenge to identification evidence, the defendant challenged the district court’s failure to obtain a waiver of an omnibus hearing.   M.E.M. was an EJJ proceeding; in an EJJ proceeding, Minn. R. Crim. P. 26 governs the jury trial proceedings, but other procedures are found at Minn. R. Juv. Delinq. P. 19.  Id.  We noted that it is better practice in an EJJ bench trial to record the child’s waiver of the omnibus hearing, but after reviewing the facts, we concluded that the identification evidence was properly admitted and that no reversal was warranted despite the failure to obtain a waiver of the omnibus hearing on the record.  Id.

            Here, because we conclude that the identification evidence was properly admitted, the failure to hold the omnibus hearing, although erroneous, was harmless.

            2.         Waiver of Right to Testify

            The right of a defendant to testify is a fundamental constitutional right that must be knowingly and intelligently waived.  M.E.M., 674 N.W.2d at 214.  It is a right personal to the defendant and cannot be waived by defense counsel.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).  “When the trial court record is silent as to waiver, this court must presume that the decision not to testify was made by defendant voluntarily and intelligently.”  Id. (quotation omitted); see also M.E.M., 674 N.W.2d at 214.  The record here is silent as to any waiver or objection to waiver by appellant, who was represented by experienced counsel.

            While we must presume that the decision not to testify was made voluntarily and intelligently, we once again caution the district courts that the better practice is to insure that waiver of fundamental rights, particularly where a juvenile is involved, is made on the record.

            3.         Identification Procedures

            Pretrial eyewitness identification procedures are reviewed to determine (1) whether the procedure was unnecessarily suggestive, and (2) whether, if the procedure was unnecessarily suggestive, the totality of the circumstances nevertheless establishes that the evidence is reliable.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  A procedure is suggestive if it unfairly singles out the defendant for identification.  Id.  In evaluating whether the evidence is reliable despite a suggestive procedure, five factors are considered:  (1) the opportunity of the witness to view the defendant; (2) the degree of attention the witness paid to the criminal; (3) the accuracy of the witness’ prior description of the defendant; (4) the degree of certainty of the witness in making the identification; and (5) the amount of time that has elapsed between the crime and the identification.   Id. 

            A show-up is not an unnecessarily suggestive procedure per se.   State v. Taylor, 594 N.W.2d 158, 161-62 (Minn. 1999).  In Taylor, the supreme court noted that while “a one-person show-up is by its very nature suggestive,” there was less potential for harm when the accused was not singled out from the general population, but when the identification was more confirmatory in nature.  Id. at 162.  The victim in Taylor identified her assailant by name and as a man whom she had seen around her neighborhood; the show-up merely confirmed that the defendant was that person.  Id.  The supreme court concluded that there was very little likelihood that the show-up had influenced the identification.  Id.    

            The record here establishes that  (1) the child witness had an opportunity to view appellant; (2) she paid attention to appellant because she spoke to him and he spoke to her; (3) although she apparently gave no detailed physical descriptions of the boys she surprised in her home, other than saying that one was thin and the other fat, that corresponds to the relative builds of appellant and his brother; besides, she apparently recognized appellant and his brother as people familiar, if not well-known to her, in the neighborhood; (4) she was positive about her identification; and (5) she identified appellant a very short time after her encounter with him.

            The district court specifically found that the 10-year-old child was a credible witness.  On these facts, the identification evidence was not overly suggestive, but was reliable.  Therefore, the district court’s admission of this evidence thus was not error.

            4.         Sufficiency of the Identification Evidence

            When reviewing whether each element of a delinquency petition has been proved beyond a reasonable doubt, the appellate court is “limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).

            Appellant suggests that a 12-year-old child witness was an accomplice, whose uncorroborated testimony should not have been received by the district court.  Our review of the record fails to identify any credible evidence that this child witness was an accomplice of appellant and his brother. This argument appears to be based on an off-hand comment that the prosecutor made during his closing argument.  Based on the facts and record, we conclude that the district court could reasonably make an adjudication of delinquency.