This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Maxim Guy Chance,
Filed July 19, 2005
Hennepin County District Court
File No. 03091607
Mike Hatch, Attorney General, 1800
Jay M. Heffern, Minneapolis City Attorney, Judd Gushwa, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN 55402 (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, Judge.
Appellant challenges his conviction of gross-misdemeanor fifth-degree assault, arguing that the show-up procedure was impermissibly suggestive and caused a substantial likelihood of misidentification by the witness. We agree that the show-up procedure was unnecessarily suggestive; but because, considering the totality of the circumstances, the identification procedure did not cause a substantial likelihood of irreparable misidentification, we affirm.
On December 26, 2003, at about 2:00
p.m., Karl Petersen went to a bus stop on the corner of
After he was kicked, Petersen turned around and saw the two men standing shoulder to shoulder. According to Petersen, appellant then said that he would kick Petersen again. Petersen then told the men to leave him alone, but “felt that th[e] whole thing was going to escalate again, so [he] went inside [a nearby] bank and called the police.” While on the phone with the police dispatcher, he saw the men get on “the [e]astbound 21 bus.”
After boarding the bus, the officers approached two men who fit the description they had been given. While standing next to the men, the officers “asked the dispatcher to give [them] the description of the suspects once again.” That description matched the men. The officers then escorted the men, who appeared to be “quite drunk,” off the bus and back to the squad car. Because the men were intoxicated, “[v]ery belligerent,” and refused to cooperate with a pat search, the officers handcuffed them before placing them in the back of the squad car. The officers then drove the men back to the spot of the assault for a “show-up,” arriving 15 to 20 minutes after Petersen was kicked in the back.
Upon arrival, Officer Shogren remained with the suspects, while Officer Clifford went to locate Petersen. According to Officer Shogren, Officer Clifford opened the rear door of the squad car and Petersen looked inside and identified the suspects as his assailants. Officer Clifford testified that Petersen did not hesitate in identifying the men. Rather, “it was immediate. [Petersen] immediately knew that these two were the ones [who] were involved with assaulting him at the bus stop.” According to Officer Clifford, Petersen then identified appellant as “the one [who] actually kicked him.”
At the Rasmussen hearing, Peterson indicated that the officers never told him that appellant was the person who had kicked him. But at trial, Petersen testified that when the officers brought the suspects back for the show-up, they implied that the suspects were the men who had assaulted him.
Q: Now, were you told that the people [who] were being brought back for you to look at were people that had just been pulled off the bus?
A: No, they never said that.
Q: Officers never said that?
Q: What did they say?
A: They said that they found the people. You know, I assumed it was on the bus, all right? They brought them back in the squad handcuffed.
Q: So they told you they found the people who did it—
Q: —and they brought them back so you could look at them?
A: That’s right. So I could I.D. them or not.
Q: But in your mind, you figured that they had the people that did it because that’s what they told you, right?
Petersen then stated that he identified the men in the back of the squad car as his assailants. After Petersen identified the men, Officer Shogren asked him if he wanted to make a citizen’s arrest. Petersen agreed, arresting appellant for assault and the other man for disorderly conduct.
Appellant was subsequently charged with gross-misdemeanor fifth-degree assault in violation of Minn. Stat. § 609.224, subds. 1(2), 2(b) (2002). Appellant moved the district court to suppress Petersen’s identification of appellant, arguing that the show-up procedure was impermissibly suggestive. The district court concluded that the procedure was not impermissibly suggestive and denied appellant’s motion. After a jury trial, appellant was found guilty and sentenced to 365 days in jail with 155 days stayed. This appeal follows.
challenges the district court’s denial of his motion to suppress Petersen’s
identification, arguing that the show-up procedure used by the police was so
impermissibly suggestive that it created a very substantial likelihood of
misidentification. We review pretrial
motions to suppress evidence by independently reviewing the facts to determine
whether the district court erred as a matter of law in its decision. State
v. Harris, 590 N.W.2d 90, 98 (
We use a two-part
test to determine whether the evidence is admissible.
Second, if we
conclude that the identification procedure was unnecessarily suggestive, we
must then determine whether the circumstances caused “a very substantial
likelihood of irreparable misidentification.”
We first consider whether the show-up procedure was unnecessarily suggestive. After handcuffing appellant and his companion, the police officers placed the men in the back of the squad car and returned to the site of the assault for a show-up. Petersen testified that before he made the identification, the officers told him that “they found the people” who assaulted him. Moreover, he confirmed that he “figured that [the police] had the people that did it because that’s what they told [him].”
In State v. Anderson, 657 N.W.2d 846 (
We now turn to
the question of whether, considering the totality of the circumstances, the
identification procedure caused “a very substantial likelihood of irreparable
1. The opportunity of the witness 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 description of the criminal;
4. The level of certainty demonstrated by the witness . . .;
5. The time between the crime and the confrontation.
535 N.W.2d at 921; see also Manson v. Brathwaite, 432
Here, Petersen had substantial opportunity to observe appellant and his companion. The interaction occurred in the early afternoon and, according to Petersen, lasted for “about five minutes.” Petersen indicated that no other people were in the area at the time. Petersen also paid attention to appellant. In his brief, appellant admits that “Peters[e]n’s attention was drawn to the men [who assaulted him] because they chose to harass him.” Moreover, Petersen testified that he “kept watching them” in the interim between the time he first saw the men and the time he was kicked in the back.
Petersen accurately described the men, noting their race, the clothing they were wearing, and the fact that his assailant wore glasses. He also told the dispatcher that the men had boarded the eastbound 21 bus. When the officers stopped the bus, they approached appellant and his companion because they fit Petersen’s description. The officers then confirmed the description of the suspects with the dispatcher.
The time between the assault and the confrontation was only 15 or 20 minutes. From the confrontation on, Petersen has consistently expressed certainty that appellant was the man who kicked him. As the district court noted when it denied appellant’s suppression motion, Peterson was “very emphatic that [appellant was] the same [person] that [Peterson] saw at the scene before he was assaulted, [was] emphatic that it was [appellant] that assaulted him, and [was] equally emphatic that [appellant] was the defendant returned to the scene by the police officer.”
All five factors support Petersen’s identification of appellant. The totality of the circumstances establishes an adequate independent origin for the identification despite the unnecessarily suggestive procedures employed by the officers; thus, the identification may be considered to be reliable. Ostrem, 535 N.W.2d at 921; Anderson, 657 N.W.2d at 851-52. On this record, the district court did not err by denying appellant’s suppression motion.
appellant urges this court to discount Petersen’s certainty in identifying
appellant as his assailant, arguing that “[t]here is no statistical relation
between accuracy of an identification and the witness’s degree of
certainty.” In support of this
contention, appellant cites several social psychological studies and notes that
courts in other jurisdictions have expressed concern regarding the relationship
between certainty and accuracy. See, e.g., Commonwealth v. Santoli, 680
N.E.2d 1116, 1121 (
use of the five factors enunciated in Ostrem—including
the witness’s level of certainty—is well established. See,
e.g., In re Welfare of M.E.M., 674 N.W.2d 208, 215 (
 Both officers testified that the two men were the only two black males on the bus.
 As Officer Clifford explained, when conducting the “show-up,” the officers took the two suspects back to the site of the assault so that Petersen could tell the officers “whether or not [the men] were actually the people [who] did assault him.”