This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,



Edgar John Hardwick,


Filed August 23, 2005


Minge, Judge


Ramsey County District Court

File No. K2-03-1388



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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


MINGE, Judge


Appellant claims that his conviction of first-degree aggravated robbery should be reversed because (1) the circumstances of the victim’s pretrial identification were unnecessarily suggestive; (2) the victim was unavailable to testify at the omnibus hearing; (3) the victim lacked an independent basis for her in-court identification; and (4) evidence of prior convictions was improperly admitted.  Because the purposes of the pre-trial show-up were to identify the robber’s coat and hair and to confirm another witness’s account and because appellant did not take timely steps to request the victim’s presence at the omnibus hearing, we reject those bases for this appeal.  We further conclude that the district court did not abuse its discretion in permitting the victim to identify appellant as the robber during rebuttal testimony, or in admitting appellant’s prior convictions for impeachment purposes.  The conviction is affirmed.




The first issue is whether the district court erred in denying appellant’s motion to suppress pre-trial identification of appellant’s coat and hair.  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 (Minn. 1999).  “When there is 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).

Whether identification evidence should be admitted depends on the reliability of the identification.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  To determine whether a pretrial-identification procedure violated appellant’s due process rights, this court applies a two-part test.  Id.; State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  “The first inquiry focuses on whether the procedure was unnecessarily suggestive.”  Ostrem, 535 N.W.2d at 921.  The second issue is whether “even if suggestive, [the evidence] may be admissible if the totality of the circumstances establishes that the evidence was reliable.”  Id. “Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification.”  Id.  The Minnesota Supreme Court has held that a “one-person show-up is not unnecessarily suggestive per se.”  Taylor, 594 N.W.2d at 161-62.  In Taylor, the supreme court held that the defendant was not unfairly singled out for identification because the victim identified the defendant by name and had seen him in her neighborhood.  Id. at 162.  The court did not reach the second part of the test because it found that the show-up was not unduly suggestive.  Id. at 160-62. 

Here, two robbers grabbed a woman’s purse as she was entering a vehicle late at night.  Her husband chased one of the robbers from the parking lot, down the alley, and seized hold of the assailant’s jacket to prevent him from escaping into a building.  In the struggle between the victim’s husband and the assailant, the assailant’s jacket was ripped.  When the police arrived, they ordered everyone to stop fighting and separated the men.  The victim’s husband explained to the police what had occurred and identified appellant as one of the robbers.  The police spoke with the victim, who confirmed her husband’s story. 

The police then conducted a show-up identification, in which the victim sat in the back of the officer’s squad car.  The car faced the suspect; its headlights and a spotlight illuminated the suspect.  According to the officer, the victim said that she recognized the suspect’s hair, but that the robber was wearing a jacket.  An officer had appellant put on his jacket, at which point the victim said “[t]hat looks like one of them.  I recognize the hair and the jacket.”

Although the police brought the victim to appellant and appellant was in handcuffs, appellant was not singled out based on a general description.  As in Talyor,“[t]his is not a case where the police singled [the defendant] out from the general population based on a description given to them by a victim, and then proceeded to present him to the victim, in handcuffs, for identification in a one-person show-up.”  594 N.W.2d at 162.  Appellant argues that this case is similar to State v. Anderson, 657 N.W.2d 846 (Minn. App. 2002).  In Anderson, police singled the suspect out of the general public based on a general description.  Id. at 849.  That case is inapposite because the appellant in the case before us was not singled out by the police, but by the victim’s husband.  The victim’s identification of appellant’s jacket and hair merely confirmed her husband’s story.  Therefore, this show-up was not unduly suggestive, and we do not need to reach the second part of the test.

Appellant also argues that the state should adopt a per se rule of excluding suggestive eyewitness identification.  We decline; the supreme court has examined the issue of pretrial identification repeatedly and has held that the reliability of identification procedures is tested under the totality of the circumstances.  See, e.g., Taylor, 594 N.W.2d at 161; Ostrem, 535 N.W.2d at 921.


The second issue is whether the district court erred in denying appellant’s motion to suppress because the state offered only the testimony of the police officer at the so-called Rasmussen hearing.  State ex rel. Rasmussen v. Tahash discusses the state’s obligations in response to a defendant’s request for a pretrial hearing to determine whether there is probable cause.  272 Minn. 539, 554, 141 N.W.2d 3, 13-14 (1965).  Rasmussen does not indicate that the testimony of a police officer is an inadequate basis for finding probable cause.  Id.  Nothing in Rasmussen suggests that the state is required to bring in the victim or witness to testify at a Rasmussen hearing.

Moreover, the Minnesota Supreme Court in State v. Koonsman, 281 N.W.2d 487, 489 (Minn. 1979), rejected the defendant’s claim that he was denied the right of confrontation because the state did not call the victims to testify at the omnibus hearing on the issue of the admissibility of identification testimony.  The Koonsman court stated

We have rejected similar arguments before and we do so again. The objectives of the confrontation clause and the compulsory-process clause are to assist the defendant in securing the presence of witnesses and to enable the defendant to examine witnesses whose statements are used against him at trial.  Stated differently, confrontation and compulsory process “work in tandem toward a common goal of assisting the defendant in producing and examining witnesses at trial.”  In any event, even if it could be said that the prosecutor breached some duty to call the victims, defendant should not be able to claim that the interests served by confrontation and compulsory process were not served in this case because he had the right to call the victims at the hearing.


Id.  (citations and quotations omitted). 

Here, appellant did not attempt to notify the victim of the omnibus hearing until the day before the hearing; he was unable to subpoena her; he did not ask the state to produce the victim; and he did not ask the court to delay the hearing so that the victim could testify.  The victim appeared and testified at trial and appellant extensively cross-examined her.  Appellant could have moved to exclude the pretrial-identification testimony until after he had an opportunity to question the victim outside the presence of the jury, but he did not make such a motion or make any objections at trial.  The state routinely relies on police testimony in Rasmussen hearings, and we would not put an undue burden on the state by requiring victim testimony.  


The third issue is whether the district court erred in allowing the victim to identify appellant as the robber during rebuttal testimony at trial.  Appellant argues that the victim’s in-court identification was improper because there was no independent basis for the identification.  The state concedes that the victim’s in-court identification lacked an independent basis, but argues that it was proper rebuttal evidence.  We review the district court’s ruling on what constitutes rebuttal evidence under an abuse-of-discretion standard.  State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003). 

Rebuttal evidence explains, contradicts, or refutes evidence elicited by the defense.  State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993).  According to the supreme court in Gutierrez,“[p]roper rebuttal evidence may include evidence that might not otherwise be admissible.”  667 N.W.2d at 435.  The concept of “opening the door” is defined as circumstances under which the introduction by one party of certain material, either in the form of evidence, argument, or as a question or remark, creates a right for the other party to respond with material that would otherwise be inadmissible.  8 Henry McCarr & Jack Norby, Minnesota Practice § 32.54 (3d ed. 2001) cited in Gutierrez, 667 N.W.2d at 435.

Here, the victim testified during direct and cross-examination that she did not see appellant’s face during the robbery.  But the victim was able to identify appellant’s jacket.  Appellant’s attorney asked the victim several times whether she ever saw appellant’s face.  Following this line of questioning, the victim testified during rebuttal that she saw appellant’s face during the show-up.  The district court implicitly ruled that the victim’s testimony was proper rebuttal evidence when it overruled appellant’s objection that the testimony was beyond the scope of cross-examination.  Because appellant opened the door and created the opportunity for the state to elicit testimony regarding when the victim was able to see appellant’s face, the district court did not abuse its discretion by admitting this testimony.

            Even if the district court abused its discretion in admitting evidence of the victim’s in-court identification, the error was harmless.  When applying the harmless-error test, “appellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).  The court on appeal looks to the record as a whole to determine whether the jury’s verdict was surely unattributable to the error.  See id. at 913.

            Here, the record indicates that the victim’s husband testified that he clearly saw appellant participate in robbing his wife and that he never lost sight of him.  The husband then made an in-court identification.  Also, the victim’s husband testified that he ripped appellant’s jacket as appellant was attempting to enter a house, and the victim positively identified the jacket.  Both the victim and her husband were extensively cross-examined regarding their recollections of the incident.  Another witness, who was unable to identify the suspects, corroborated the victim’s and her husband’s testimony.  Appellant confirmed that the ripped jacket was his, that he was in the area, and that he spoke to the victim’s husband in the alley regarding the robbery.  Based on the whole record, the jury’s verdict was unaffected by the admission of the victim’s in-court identification and therefore, any error was harmless.[1]



The fourth issue is whether the district court abused its discretion in admitting evidence of appellant’s prior convictions for impeachment purposes.  A district court’s ruling on the impeachment of a witness by prior conviction is reviewed under an abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Evidence of a prior conviction may be admitted to impeach the defendant’s testimony if the offense is less than ten years old, punishable by imprisonment for more than one year, and the district court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a)(1), (b).  To determine whether the probative value of the evidence outweighs its prejudicial effect, the district court should consider the following factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.


State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).  In reviewing the district court’s ruling, we will consider each factor.

A.        Impeachment Value of Prior Crime

The Minnesota Supreme Court has stated that “impeachment by prior crime aids the jury by allowing it to see the ‘whole person’ and thus to judge better the truth of his testimony.”  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted).  Appellant contends that his prior convictions are not probative because they did not involve violent crimes.  But according to the rules of evidence, there is not a requirement that the crime be violent for it to be used for impeachment purposes.  See Minn. R. Evid. 609(a).  While only crimes of dishonesty are automatically admitted for impeachment purposes, other crimes may also be admitted.  Id.  The state moved to impeach appellant with three prior convictions of theft and burglary.  Although the crimes of burglary and theft do not directly involve dishonesty, they appear to be probative of appellant’s credibility and would have assisted the jury in assessing his credibility.  See State v. Ross, 491 N.W.2d 658, 659-60 (Minn. 1992) (finding that burglary conviction, though not a crime of dishonesty, may be admissible under 609(a)(1)).  Also, when there are several previous convictions, “there is no concern about undue prejudice resulting from an isolated incident.”  See State v. Hofmann, 549 N.W.2d 372, 375-76 (Minn. App. 1996), (finding that district court properly admitted evidence of six of defendant’s convictions of burglary and other property crimes), review denied (Minn. Aug. 6, 1996).  Thus, the impeachment-value factor favors admitting the evidence. 

B.        Date of Conviction and Subsequent History

Under Minn. R. Evid. 609(b), “[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witnesses from the confinement imposed for that conviction, whichever is the later date.”  Appellant concedes that all three convictions occurred within ten years of the instant prosecution, and therefore none are “stale” under the rule.  See Gassler, 505 N.W.2d 67 (Minn. 1993) (stating that all convictions occurring within ten years of prosecution are not stale).  Appellant argues that the convictions occurred in the early 1990s and therefore are of limited probative value.  However, under the rule, the date of the convictions is measured from the release of confinement, and appellant was not released from confinement until 1997 and 1998.  See Minn. R. Evid. 609(b).  Even though there is no showing of appellant’s conduct between his release date and the time of the crime, this factor favors admission of the prior convictions.

C.        Similarity of Past and Charged Crimes

The third factor compares the similarity of the prior conviction with the currently charged crime.  The Minnesota Supreme Court has found that “the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach.”  Jones, 271 N.W.2d at 538.  But the supreme court has also upheld the admission of past convictions of rape in a trial for criminal sexual assault in State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985), and a conviction for attempted second-degree murder in a murder trial.  Gassler, 505 N.W.2d at 66-67.  Here, appellant was charged with aggravated robbery, which is similar to his prior burglary and theft convictions.  Therefore, this factor does not favor admission of the prior convictions.

D.        Importance of Appellant’s Testimony and Centrality of Credibility

            The fourth and fifth factors are the importance of appellant’s testimony and his credibility.  If a defendant’s credibility is the central issue of a case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.”  See Ihnot, 575 N.W.2d at 587 (quotation omitted).  Appellant argues that the district court should have excluded his convictions because his testimony was of utmost importance, but also argues that his credibility was not a central issue in the case. 

Appellant was the only one whose testimony directly contradicted the victim’s and her husband’s, and he was the sole defense witness offering an explanation of how and why the victim’s husband was chasing him.  According to appellant, he left a bar and began walking home through an alley around 11:30 p.m., at which point the victim’s husband approached and asked appellant if he saw which way an African-American man had run past.  Appellant testified that he said that he did not know and that he and the victim’s husband walked down the alley together talking.  Appellant testified that once he entered his house, the victim’s husband and two other Asian men grabbed him, pulled him out of the house, and began to hit him on the head with a chair.  Appellant denied robbing the victim and testified that he should not and will not run because of his heart condition.  Thus, the jury was forced to decide whether it believed the victim’s husband or appellant.  Because appellant’s testimony was important and credibility was a central issue in the case, this factor favors admission. 

On balance, the factors favor allowing the evidence of prior convictions, and we conclude that the district court did not abuse its discretion by admitting appellant’s three prior convictions for impeachment purposes.[2]


[1]Appellant also claims that the jury’s question regarding the time at which the victim’s husband ripped appellant’s jacket indicates that the jury was unsure of the identification.  But this question appears to relate to the location of the struggle, conflicting testimony regarding an initial struggle, and the time when appellant attempted to enter the building. 

[2] Appellant argues in his brief that he was improperly impeached with a 1999 drug conviction.  But as respondent notes, the state did not move to admit the drug conviction, the district court did not rule that it would admit the conviction, and appellant voluntarily introduced evidence of that conviction during direct testimony.