This opinion will be unpublished and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
Philander Dermont Jenkins,
Filed August 16, 2005
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 03058428
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for appellant)
Jill M. Waite,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, Judge.
Appellant State of Minnesota challenges the district court’s pretrial orders, arguing that it erred by (1) dismissing a first-degree-burglary charge for lack of probable cause, (2) suppressing a handgun as irrelevant, and (3) ordering the preparation of a new lineup for the purpose of an in-court identification of respondent by the state’s witnesses. Because we find critical impact for each issue and conclude that the district court erred on all three of the challenged rulings, we reverse and remand. Respondent cross-appeals on three additional grounds. Because we conclude that two of his arguments are beyond the scope of this court’s review, we decline to address them; but we affirm the district court’s decision as to respondent’s argument concerning violation of his Sixth Amendment right to counsel.
By amended criminal complaint filed on September 13, 2004, the state charged respondent Philander Jenkins with one count of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(b) (2002); one count of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2002); two counts of second-degree assault in violation of Minn. Stat. § 609.222, subds. 1, 2 (2002); and one count of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b), 2 (2002). The state also asserted a sixth count against respondent for solicitation of a minor to commit a crime in violation of Minn. Stat. § 609.494, subd. 1 (2002).
On the evening of August 14,
2003, police officers arrived at the scene of a shooting in north
[Two] witnesses stated that while in the house, they heard a “crash” and saw two adult males, later identified as [respondent and his co-defendant,] break into the house and run into the living room and they had weapons. The witnesses stated that as the two [d]efendants were entering the living room, the victim immediately ran out of the room and out the back. The witnesses saw the [d]efendants chase after him. Then the witnesses heard a shot. The witnesses said they found the victim in the back bleeding and the [d]efendants and another male . . . get into a blue Mercedes with a broken windshield. The three fled in the vehicle. Descriptions of the vehicle and license plate number together with the person descriptions were aired.
A third witness told police that he observed respondent “retrieve a black handgun from the trunk of the car.” After unsuccessfully attempting to stop respondent from pursuing the would-be victim, this witness saw respondent “break into the house.” Soon after, the witness heard a gun shot. The complaint reports the victim’s recollection of the evening:
The victim stated that on August 14th, he was at home in his living room with [the three witnesses]. He stated that he heard someone breaking into his house. The victim stated that he didn’t stay to see who it was; he just started running to the back of the house.
The victim was shot in the chest, and the shooter then ran away.
Just before midnight, a police officer stopped the stolen blue Mercedes. Inside the vehicle were three individuals later identified as respondent, his co-defendant, and a juvenile who would later be charged with the attempted murder. Several other officers arrived on the scene. Sergeant Michael Young ordered that the vehicle be impounded but not searched. Young explained why he did not order the search of the vehicle that evening:
The vehicle was used in a previous crime. There was a high likelihood that evidence from that crime may be contained within the vehicle. Because we were aware of the previous crime and the likelihood there may be evidence in there, it was my decision at that scene to just wait for the warrant. By policy, we can search any vehicle that we impound.
He also testified that he believed there might have been evidence in the vehicle, such as a gun. Sgt. Young ordered Officer Adam Grobove to follow the vehicle to a forensic garage at the city’s impound lot. Grobove testified that the vehicle was then locked inside the garage and that the keys were delivered to the impound lot’s security office.
Later that morning, on Friday, August 15, 2003, Sergeant
Dennis Hamilton began an internal investigation by reviewing various reports
and interviewing the three suspects and the victim. The following Monday,
After inventorying the items
and placing the bullets and gun in a paper bag, Sgt. Hamilton immediately
transferred them to the property-inventory room at city hall. At the property-inventory room,
Q: Okay. And then Officer Hamilton left you some sheets in the back, and do you mean they had like a list on them or—
A: It just had something written, barely legible. . . . It look[ed] like bullet casings of—bullet casing or shells or something. It was kind of not too legible, but it looked like, you know, shells. And he did mention that he did find some bullet casings or shells from a gun in the vehicle.
. . . .
Q: —[I]n addition to the shells, was anything else listed?
A: No, not that I can think of.
. . . .
Q: . . . Would you remember if a gun had been listed on that sheet?
[State objected. Overruled by the court].
A: No, definitely there was no gun listed. There was only the two items of bullet[-]shell casings . . . .
Because the gun was loaded, Sgt. Hamilton testified that he placed it in a secured locker adjacent to the property-inventory room. The supervisor of the property-and-evidence unit of the Minneapolis Police Department testified that once a locker has been secured with a padlock, not even a police officer, only property-and-evidence-unit staff, have access to the lockers.
Throughout the omnibus hearing, respondent attempted to establish that the gun had been planted by the police, arguing that “the reason [the car] wasn’t searched was to give an opportunity for someone to put evidence into the vehicle if it proved later that that became necessary.” Respondent also contended that the police’s motive for planting the gun was because there had been allegations that respondent had kicked a fellow officer in the head until his jaw was broken. Respondent’s counsel also explained that, “there’s a great deal of question of who found the gun, where they found it, and why wasn’t it found earlier, why wasn’t it found the night of the search.” Among other motions, respondent moved to (1) dismiss the burglary charge for lack of probable cause, (2) suppress the handgun as evidence, and (3) alter certain procedures regarding in-court identification testimony.
First, at the conclusion of the omnibus hearing, respondent argued that the state “fail[ed] to allege anywhere on the face of the [c]omplaint that someone in lawful authority stated there was . . . no consent to enter as deemed by the person with lawful authority in the premises.” The state argued that respondent and his co-defendant did not have consent to enter the premises because they went “in with guns and [broke] in.” The state maintained that there was “sufficient information to draw the inference . . . that [respondent] had no consent” to enter the premises.
The district court dismissed the first-degree-burglary charge because the complaint “[did] not contain sufficient probable cause on the element from the owner that there was no consent . . . .” When the state offered to supplement the complaint with the recently acquired statement of M.N. (the premises’ tenant), the district court explained, “[t]he [c]omplaint doesn’t even mention . . . the person who owns the place . . . [and] I don’t believe she ever said these people couldn’t be in her house, and it appears that they had been in her house before.” The state replied that it had “been searching for [M.N.] for months” and had recently located her, which is why it was unable to include her in the amended complaint. The court responded that the state failed to call M.N. as a witness. But the state explained that it did not need to bring a witness because “[t]his wasn’t charted as a [probable-cause] hearing.” The court did not permit the state to amend the complaint and rejected a later request for admission of M.N.’s statement as “total hearsay” because it would convert the prosecutors in the case to “witnesses.” But the court did find probable cause on the remaining counts of the complaint.
Second, respondent moved to suppress the handgun found in the vehicle searched by Sgt. Hamilton at the impound lot. The district court asserted that Sgt. Hamilton did not follow proper procedure in conducting the search and that his testimony was inconsistent. The court stated that “the absolute failure in this case for the [police department] to follow their own policy, it’s not defendable.” The court continued:
[I]t’s very clear that Sergeant Hamilton has no memory of this. His description of the search of the vehicle, the trunk, his description of what he did at the property room in the lockers makes no sense with reality. His description of locks with keys, and the description of having to undo something to get to the spare tire, he has no documentation or anything. He went alone to do this search, even though it’s at the forensic garage when he could have ordered that they conduct the search, which is what the policy says.
. . . .
. . . [T]his gun [was] found in a car that does not belong to any of [the co-defendants]. It’s been supposedly stolen for a number of days and handled by a number of people. The gun is inside that wheel—the spare tire compartment, and this gun is not identified as any gun used by [respondent], alleged to have been used by [respondent] at the time of the incident.
The court also made a negative credibility finding, largely against Sgt. Hamilton, stating, “the testimony I’ve heard in regards to that gun makes no sense. And I’m not saying anyone’s lying. I’m saying people don’t remember what happened because they didn’t do it right, and they’ve tried to recreate something and it doesn’t work because it’s inconsistent with each other.” The court suppressed the handgun as “irrelevant” to the state’s case.
Finally, respondent challenged the state to show reliability of the eyewitness identifications and maintained that several of the state’s witnesses were never shown a lineup to identify respondent. The state explained that a lineup would not be necessary because “all of these people know each other.” The district court then directed the state to prepare a new photographic lineup.
Based on the district court’s rulings, and prompted by its decision not to permit the state to supplement the complaint with the tenant’s statement, the state appeals the court’s pretrial orders regarding (1) the dismissal of the burglary charge, (2) the suppression of the handgun, and (3) the in-court identification testimony procedure.
state argues that the district court erred when it determined that the
complaint lacked sufficient probable cause on the entry-without-consent element
of the burglary charge. A dismissal for
lack of probable cause is appealable if it is based on a legal
determination. State v. Ciurleo,
471 N.W.2d 119, 121 (
A person commits burglary in the first degree if he “enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice.” Minn. Stat. § 609.582, subd. 1 (2002) (emphasis added). The burglar may be sentenced or fined if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses, when entering or at any time while in the building . . . a dangerous weapon;
(c) the burglar assaults a person within the building . . . .
The district court dismissed the first-degree burglary charge because it found that the complaint lacked probable cause on the without-consent element of the burglary. The following discussion occurred at the omnibus hearing:
[Prosecutor]:Your Honor, we have been searching for [M.N., the tenant] for months.
[The Court]: I understand that. When this [c]omplaint was signed there wasn’t probable cause, and there has been no testimony in front of me to establish probable cause.
[Prosecutor]:But . . . this was a[n omnibus] hearing.
[The Court]: Right. And one of the issues is probable cause.
[Prosecutor]:Well, the only thing that we can do then, Your Honor, is to amend the probable cause section of the [c]omplaint as soon as we can.
[The Court]: But I already know the defense has a contradictory statement.
. . . .
[The Court]: It’s the state’s burden to establish probable cause.
. . . .
[The Court]: And you didn’t bring any witness to testify to it—
. . . .
[Prosecutor]:No, I don’t need to bring a witness. This wasn’t charted as a
[The Court]: Well, I’m dismissing Count I. And you can disagree with me, but that count is dismissed.
The court later denied the state’s request to supplement the record with the statement of the premises’ tenant.
Probable cause exists
when “evidence worthy of consideration . . . brings the charge . . . within
reasonable probability.” State v.
Steinbuch, 514 N.W.2d 793, 798 (
A. Presence of Entry-Without-Consent Element in Complaint
A complaint is “a
written signed statement of the essential facts constituting the offense
B. Denial of
Even if the complaint lacked any trace of an element necessary to sustain a charge of burglary, the district court should have permitted the state to amend its complaint. Under the criminal-procedure rules,
the facts establishing probable cause to believe that an offense has been committed and that the defendant committed it shall be set forth in writing in the complaint, and may be supplemented by supporting affidavits or by sworn testimony of witnesses taken before the issuing judge or judicial officer.
Minn. R. Crim. P. 2.01 (emphasis added). In addition, Minn. R. Crim. P. 3.04,
subd. 2, permits “a new complaint to be filed . . . provided the prosecuting
attorney promptly moves for such continuance on the ground: (a) that the initial
complaint does not properly name or describe . . . the offense charged.” While recognizing that a district court has
discretion to grant or deny the state’s request to amend a criminal complaint,
the supreme court has previously allowed “‘housekeeping’ amendment[s],” which
do not charge an additional or different offense. State
v. Smith, 313 N.W.2d 429, 430 (
Given that the state was
unable to locate the tenant of the premises until just before the district
court’s ruling, the district court abused its discretion by not permitting the
state to either (1) amend the complaint itself or (2) offer the tenant’s
testimony—in the form of an affidavit or through in-court testimony—that she
was the tenant of the premises and that she had not given respondent permission
to enter the premises. When the state
attempted to offer the tenant’s recently obtained statement, the district court
rejected the offer, classifying it as “total hearsay” because it was obtained
by the prosecutors and would make them “witnesses” in the case. But “[a] finding by the court of probable
cause shall be based upon the entire record including reliable hearsay in whole
or in part.” Minn. R. Crim. P. 11.03; see also Ortiz, 626 N.W.2d at 451 n.1
(when determining probable cause to support a charge, the district court may
consider evidence in a form that is not necessarily admissible at trial). Thus, the district court’s unwillingness to
“receive such evidence . . . offered in . . . opposition” to respondent’s
motion to dismiss the charge was in error and the burglary charge must be
permitted to go forward.
The state next argues that the district court erred by
suppressing a handgun allegedly involved in the case. When the state appeals a pretrial suppression
order, it “must ‘clearly and unequivocally’ show both that the [district]
court’s order will have a ‘critical impact’ on the state’s ability to prosecute
the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (
A. Critical Impact
“Critical impact has been
shown not only in those cases where the lack of the suppressed evidence
completely destroys the state’s case, but also in those cases where the lack of
the suppressed evidence significantly reduces the likelihood of a successful
prosecution.” State v. Kim, 398
N.W.2d 544, 551 (
analyzing critical impact, an appellate court “first examine[s] all the
admissible evidence available to the state in order to determine what impact
the absence of the suppressed evidence will have.” In re
Welfare of L.E.P., 594 N.W.2d 163, 168 (
Here, respondent is specifically charged with one count of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002). Several of the remaining counts in the complaint also require or imply the use of a “dangerous weapon” or “firearm” as an element of the charged offense. See Minn. Stat. § 609.582, subd. 1(b) (2002) (“the burglar possesses . . . a dangerous weapon”); Minn. Stat. § 609.221, subds. 1, 2 (2002) (“Whoever assaults another and inflicts great bodily harm . . . .”); Minn. Stat. § 609.222, subd. 1 (2002) (“Whoever assaults another with a dangerous weapon . . . .”). The state argues that in order to prove each of the charged offenses, it must establish that respondent possessed such a “dangerous weapon” or “firearm”—the very handgun suppressed by the district court in this case.
Because each of the charged offenses involves the use of a “dangerous weapon” or “firearm,” we determine that the district court’s decision to suppress the handgun at trial will have a “critical impact” on the state’s ability to succeed in its prosecution. See, e.g., State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (dismissal of weapons charge had critical impact); State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (critical impact shown by suppression of evidence essential to proof of four DWI counts), review denied (Minn. Aug. 27, 1986).
B. Clear and Unequivocal Error
Once critical impact has
been established, we must determine whether the district court “clearly and
unequivocally” erred in suppressing the evidence. Zanter, 535 N.W.2d at 630. A
district court’s decision on the admission of evidence is reviewed for an abuse
of discretion. State v. Williams, 586 N.W.2d 123, 126 (
Here, the district court suppressed the handgun because it was “irrelevant” and did not have “anything to do with these proceedings.” It explained:
[T]his gun [was] found in a car that does not belong to any of [the co-defendants]. It’s been supposedly stolen for a number of days and handled by a number of people. The gun is inside that wheel—the spare tire compartment, and this gun is not identified as any gun used by [respondent], alleged to have been used by [respondent] at the time of the incident.
The district court
essentially found Sgt. Hamilton’s testimony to be incredible and disparaged the
But the district court conflated any potential chain-of-custody issue
with respondent’s theory that the handgun was planted. The chain-of-custody rule requires the state
“to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at
trial.” State v. Johnson, 307
“Admissibility should not depend on the prosecution negativing all possibility of
tampering or substitution, but rather only that it is reasonably probable that
tampering or substitution did not occur.”
As a preliminary matter, we note that the testimony
offered at the omnibus hearing did not conclusively establish that the handgun
had been contaminated or altered after it was seized. And here, the handgun was not immediately
acquired when the stolen Mercedes was stopped by police and then transferred to
the impound lot for safekeeping.
Instead, Sgt. Hamilton did not execute the search warrant on the stolen
Mercedes until a few days after it had been taken to the impound lot. The district court appears to have made a
chain-of-custody ruling based on its belief that the handgun discovered in the
spare-tire compartment of the stolen Mercedes could have been anyone’s—and not
necessarily respondent’s—because (1) the gun was found in a stolen car that had
been handled by a number of people and (2) the gun had not been identified as
the gun allegedly used by respondent in the commission of the crimes. The district court explained that its
conclusion was based on a relevancy determination. But the omnibus transcript suggests that the
court made its ruling based on a flawed chain-of-custody analysis because it
analyzed chain of custody from before, not after, the evidence was first
seized. Johnson, 307
offered little beyond speculation that the handgun was planted in the stolen
Mercedes searched by
In Hager, the Minnesota Supreme Court cited favorably to an article discussing the authentication of real evidence. 325 N.W.2d at 44 (citing M. Graham, Evidence and Trial Advocacy Workshop: Relevance and Exclusion of Relevant Evidence—Real Evidence, 18 Crim. L. Bull. 241, 243-47 (1982) [hereinafter Real Evidence]. In the article, Professor Graham explains that an instrumentality’s connection with a crime may be proved either by circumstantial or direct evidence. Real Evidence, supra, at 247-48. Elaborating, Graham states:
[I]f an object is shown to be connected with a defendant, admissibility does not require a showing that such an object was actually used in the offense charged, so long as it is shown that the object is at least suitable for the commission of the crime, or otherwise related to the offense.
Obviously a gun is a useful instrument for a robber. Professor Wigmore points out: “As a general principle, then, the existence . . . of the physical . . . means to do an act is admissible as some evidence of the possibility or probability, of the person’s . . . doing it.”
The state’s final argument is that the district court erred when it directed the state to show its witnesses a court-approved photographic lineup and made this procedure a condition precedent to admission of any testimony identifying respondent. At the omnibus hearing, respondent challenged the in-court identification proposed to be offered by J.W., a material witness to the events of the night in question. Because a criminal conviction cannot be based upon the testimony of an accomplice and must be corroborated by other evidence, State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995), the state asserts that J.W. must be permitted to identify respondent in court in order to put forth a successful prosecution.
the state was ordered to prepare and submit a new, court-approved photographic
lineup, its original lineup was effectively suppressed. Again, when the state appeals a pretrial
suppression order, it “must ‘clearly and unequivocally’ show both that the
[district] court’s order will have a ‘critical impact’ on the state’s ability
to prosecute the defendant successfully and that the order constituted
error.” Scott, 584 N.W.2d at 416. “[T]he critical impact of the suppression
must be first determined before deciding whether the suppression order was made
A. Critical Impact
Critical impact can be established in “cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” Kim, 398 N.W.2d at 551. “Whether suppression of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state’s evidence against the accused.” Zanter, 535 N.W.2d at 630. Because the testimony of respondent’s co-defendant must be corroborated by J.W. and the state asserts that his identification “will directly inculpate [r]espondent,” we conclude that the district court’s order had a critical impact on the state’s ability to successfully prosecute respondent. The question thus remains whether the district court erred by ordering the new lineup procedure.
B. District Court Error
Reliability is the central
factor in evaluating the admissibility of identification testimony. State
 the opportunity of the witness to view the criminal at the time of the crime,  the witness’ degree of attention,  the accuracy of the witness’ prior description of the criminal,  the level of certainty demonstrated by the witness at the confrontation, and  the length of time between the crime and the confrontation.
Neil v. Biggers, 409
Appellate courts apply the following test to determine whether a pretrial identification procedure must be suppressed:
The first inquiry focuses on whether the procedure was unnecessarily suggestive. Included in that inquiry is whether the defendant was unfairly singled out for identification. Ultimately, the concern is whether the procedure used by the police influenced the witness identification of the defendant.
If the procedure is found to be unnecessarily suggestive, the court must then determine under the totality of the circumstances whether the identification created a very substantial likelihood of irreparable misidentification.
Even under respondent’s characterization of the lineup, it would not be unnecessarily suggestive because the witness, J.W., knew respondent and would testify that he observed respondent’s actions on the night in question. We therefore determine that his identification would be merely “confirmatory” and would not “create a substantial likelihood of misidentification.” Darveaux, 318 N.W.2d at 47-48. The procedure imposed by the district court was therefore in error.
filed a cross-appeal in this case immediately after the state’s notice of
appeal. Criminal defendants do not have
an independent pretrial right to appeal.
Kim, 398 N.W.2d at 549 n.
8. But if the state files a pretrial
appeal, as here, the defendant may respond with a cross-appeal. See Minn.
R. Crim. P. 28.04, subd. 3 (“Upon appeal by the prosecuting attorney, the
defendant may obtain review of any pretrial . . . order which will adversely
affect the defendant . . . .”). This
court has the authority to decline to review issues raised in a
cross-appeal. State v. Kim, 374 N.W.2d 814, 816 (Minn. App. 1985), aff’d 398 N.W.2d 544 (
decline to address respondent’s first two arguments as they are structured because
they conflate the role of this court with the decidedly distinct role of the
legislature and the supreme court. The
function of the court of appeals is “primarily decisional and error-correcting,
rather than legislative or doctrinal.” Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d
78, 83 (Minn. App. 1989), review denied (Minn.
Jan. 12, 1990). Moreover, it is
not the role of this court to extend existing law or create new law. State
v. Fitzpatrick, 690 N.W.2d 387, 392 (
for the third argument, respondent asserts that Sgt. Hamilton failed to obtain
a waiver from his counsel representing him on unrelated charges against him before
interviewing him in the present case.
The district court rejected this argument and ruled that respondent
never asked for an attorney before being interviewed and that his statements to
police did not violate his Sixth Amendment right to counsel. Both the
Affirmed in part, reversed in part, and remanded.
 Respondent argues that the forensic garage was not secure, citing the testimony of William James, a forensic scientist at the garage, who testified that the keys to the forensic lot could be easily obtained by a police officer.
 Gary Turner, the owner of the stolen
Mercedes, testified that he did not own a gun or bullets. Turner also explained that Officer Hamilton
told him that “he took bullet casings or shells,” but Turner did not remember
 On cross-examination,
 The district court did not issue a written order in this case. All of the court’s rulings were made orally, from the bench.
evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”