This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Darnell Theodore Richardson,
Hennepin County District Court
File No. 03052707
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; Crippen, and Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On this appeal from his conviction of third-degree assault, appellant argues that (1) the officers’ identification testimony was insufficient to prove that he committed the crime and (2) the prosecutor committed prejudicial misconduct in closing argument by asserting that the undercover officer identified appellant in court as one of the assailants. Because we conclude that the identification testimony was sufficient and that there was no prosecutorial misconduct, we affirm.
D E C I S I O N
Appellant Darnell Richardson argues that the eyewitness-identification evidence presented to the jury was insufficient as a matter of law to support his conviction. He contends that the state failed to prove beyond a reasonable doubt that he was the person who committed the offense.
warrant a conviction, the state must prove “beyond a reasonable doubt all of
the essential elements of the crime with which the defendant is charged . . . .” State v. Ewing, 250
is a question of fact for the jury to determine. State v. Otten, 292
will look at several factors to determine whether there was a substantial
probability of misidentification: (1)
the witnesses’ view of the criminal at the time of the crime; (2) the
witnesses’ degree of attention; (3) the accuracy of the witnesses’ descriptions;
(4) the level of certainty of the witnesses when the identification was made;
and (5) the time between the crime and the identification. State v. Ostrem, 535 N.W.2d 916, 921 (
Officer John Biederman was the only eyewitness to the assault who took the
stand. He testified that he was directly
across the street and two floors above
as appellant argues that the evidence was insufficient because Biederman did
not identify appellant in court, “[c]ourtroom identification is not necessary
when the evidence is sufficient to permit the inference that the defendant on
trial is the person who committed the acts charged.”
Appellant argues that the prosecutor in closing argument “argued to the jury as if Biederman had made an in-court identification.” The prosecutor stated: “And Officer Biederman told you that when he was working that night, July 29, he looked out his window, it was not very crowded, and he saw this defendant and another individual assault [the victim].” Appellant argues that this unobjected-to statement constitutes a misrepresentation of the facts—misconduct so prejudicial that it deprived him of a fair trial.
an appellate court reviews an unobjected-to error, there must be “(1) error;
(2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740
We observe no error in the prosecutor’s comments. First, the alleged prejudicial statement did not contain the misrepresentation that appellant asserts: that Biederman made an in-court identification of appellant. Second, the prosecutor clearly acknowledged that the state bore the burden to identify appellant as an attacker. After the unobjected-to statement, the prosecutor went on to outline the evidence and stated:
And that’s where we get back to Officer Lazarchac’s testimony. We don’t want to get the wrong guy. They are out there. They haven’t seen what happens. They are relying on Officer Biederman, and he gives them a description and you heard Officer Lazarchac tell you about that description. The clothing, the shirt with the ’03 on the back. And he told you, as clearly as he could, that when he got down there to that area, there was nobody else that even remotely fit that description. . . . And in this case, Officer Lazarchac told you that he confirmed with Officer Biederman that he had the right guy.
This is an accurate statement of the
evidence. Third, the alleged
misstatement of the facts was a single isolated sentence in the closing argument. Fourth, defense counsel in closing clearly
highlighted for the jury the lack of in-court identification by Biederman.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.