This opinion will be unpublished and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
Haibe Mohamud Egal,
Filed November 7, 2006
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 04046759
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Jane E. Rydholm,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
A jury convicted Haibe Egal of first-degree aggravated robbery and first-degree assault. In this appeal, Egal challenges his conviction on four grounds. First, Egal claims that due process required the identification evidence to be suppressed. Second, he argues that the jury instruction on the loss of a tooth misstated the law. Third, he claims he was entitled to jury instructions on the lesser-included offenses of simple robbery and third-degree assault. Fourth, Egal argues that the victim’s testimony was too inconsistent and uncorroborated to support the conviction. We affirm in part, reverse in part, and remand.
F A C T S
Yusuf reported to
Yusuf agreed that the two men could come with him to his apartment, where he had more beer. Olad drove his vehicle, a red truck with two doors. Yusuf sat in the front passenger seat, and Hassan sat behind him. When they parked outside the apartment, Yusuf had second thoughts. He explained that it was late, he was tired, and he did not have much beer.
According to Yusuf, Hassan suddenly gestured to Olad and grabbed Yusuf’s neck. Olad punched Yusuf four to five times in the face. Yusuf touched his mouth and realized he was missing teeth. Olad searched Yusuf and took Yusuf’s cell phone, his shoes, six dollars from his pocket, and his wallet, which contained twenty dollars. Yusuf got out of the truck, and Olad and Hassan drove away. Yusuf was bleeding and holding two teeth in his hand.
Yusuf waved down a passing police officer and reported the incident. Yusuf identified Hussein Hassan and Absher Olad as the assailants. He said Olad was driving a red Ford Explorer. In addition, Yusuf stated that he suspected a third man, Ali Hassan, of planning the attack.
reporting the incident, Yusuf went to the
A sergeant of the Minneapolis Police Department interviewed Yusuf on April 1, 2004. The sergeant was unable to find a picture or any other record of “Absher Olad.” Later in April, Yusuf reported that he had seen Olad’s vehicle and provided a license-plate number (“MBM 502”). The license was registered to a Honda Civic. The sergeant notified Yusuf that the license plate did not match the red Ford Explorer he had described. Then, on June 1, Yusuf reported that he had seen Olad’s vehicle again and provided a license-plate number (“MBB 502”) that was one letter different.
This license plate matched a red Mazda Navajo owned by the appellant, Haibe Mohamud Egal. The sergeant learned that a Mazda Navajo is just a rebadged Ford Explorer. Nine days later, on June 10, Yusuf called again and told the sergeant that Absher Olad’s real name was Haibe Egal.
On that same day, the sergeant met with Yusuf to verify the assailant’s identity. The sergeant had previously attempted to compile a six-photo lineup with Egal’s picture. Although a computer provided 800 photos of people with similar features, the sergeant could not find enough pictures of men of Somali descent. Instead of using a lineup, he showed Yusuf a single photo of Egal. Yusuf identified the man in the photo as his attacker, Absher Olad. Yusuf was certain about the identification.
defense made a pretrial motion to suppress the identification evidence. But the district court admitted testimony
about the pretrial identification and allowed an in-court identification of
Egal. During the trial, Haibe Egal
acknowledged that he uses the name “Absher Olad.” But Egal denied going to the
the close of testimony, the state requested an instruction that the “loss of a
tooth is a permanent loss of function of a bodily member for purposes of the [a]ssault
[s]tatute.” The district court relied on
this court’s decision in State v.
Bridgeforth, 357 N.W.2d 393 (
Egal requested that the jury receive instructions on the lesser-included offenses of simple robbery and third-degree assault. The state opposed the request. It argued in part that, under Bridgeforth, the record provided no basis to acquit Egal of the greater charge while convicting of the lesser charge. The district court refused to give the instructions, saying that it had “determined that there is not a basis upon which to submit those lesser included offenses.”
jury convicted Egal of first-degree aggravated robbery and first-degree
assault. Following the convictions, the
Minnesota Supreme Court, in State v.
D E C I S I O N
evidence must be excluded if the procedure used was “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Simmons v.
an identification procedure is unnecessarily suggestive depends in part on
whether it unfairly singles out the defendant for identification. Ostrem,
535 N.W.2d at 921. Single-photo
identification procedures have been widely condemned.
The identification evidence in this case may have been more suggestive than necessary. The computer provided about 800 photos of people with similar features. The sergeant could have included non-Somalis in a photo array or he could have found other photos of Somalis. But even if we conclude that the procedure was unnecessarily suggestive, Egal has not met the standard for exclusion of the identification evidence because the procedure was nonetheless reliable under the totality of the circumstances.
In determining whether the identification evidence was reliable under the totality of the circumstances, Minnesota courts consider five factors: (1) the witness’s opportunity to view the person when the crime occurred, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty the witness demonstrated when identifying the person, and (5) the time elapsed between the crime and the identification. Ostrem, 535 N.W.2d at 921.
In this case, each factor supports the conclusion that the identification evidence was reliable under the totality of the circumstances. Yusuf had known Egal for about a year and a half. He had spent time at the bar with him on the night of the assault and there is no indication that Yusuf was not paying attention. Although Yusuf’s initial description of the vehicle was not entirely accurate, it was quite close. Yusuf described the Mazda Navajo as a Ford Explorer, but a Navajo is a rebadged Ford Explorer. The first license-plate number he gave had only one wrong letter. More importantly, Yusuf described his assailant as “Absher Olad” and Egal admitted using that name. When the sergeant showed Yusuf a picture of Egal, Yusuf was sure that it was a picture of the man who attacked him. Although Yusuf made the identification seventy-eight days after the attack, this was not too long when considered in light of the seriousness of the attack and Yusuf’s familiarity with his assailant. We therefore conclude that the identification evidence was reliable under the totality of the circumstances and was properly admitted.
review jury instructions “in their entirety to determine whether they fairly
and adequately explain the law of the case.”
State v. Peterson, 673 N.W.2d
482, 486 (
Minnesota Supreme Court’s 2005 decision in
the state and Egal submit that, under
review the denial of a lesser-included-offense instruction under an abuse-of-discretion
standard. State v. Dahlin, 695 N.W.2d 588, 597 (
requested lesser-included-offense instructions for third-degree assault and
simple robbery. Simple robbery is indisputably
a lesser-included offense of first-degree aggravated robbery.
Because we are reversing the
first-degree assault conviction, we do not reach the issue of whether a
third-degree assault charge was warranted.
Nonetheless, we note that if Egal is retried on this charge, a
lesser-included-offense instruction may be warranted, consistent with the
considering a claim of insufficient evidence, our review is “limited to a
painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient to permit
the jurors to reach the verdict which they did.” State
v. Fields, 679 N.W.2d 341, 348 (
argues that State v. Langteau, 268
N.W.2d 76 (
Even if Yusuf’s reports of the incident were inconsistent over time, Langteau does not require reversal. Although Yusuf initially identified his assailant as “Absher Olad,” that name was the defendant’s alias. Similarly, Yusuf provided a different license-plate number after he obtained more accurate information. The other inconsistencies in Yusuf’s statements stemmed from the police officer’s understanding that Yusuf said he had been attacked by all three men on the sidewalk and they took sixty dollars from his pocket. Yusuf denied telling the officer that he was attacked on the sidewalk. In subsequent interviews, and at trial, Yusuf said he was attacked in the truck by only two men. At trial, Yusuf said the men took six dollars from his pocket. English is not Yusuf’s first language and he has difficulty with some English words. Viewing the evidence in the light most favorable to the conviction, we conclude that the jury could have attributed any inconsistencies to language difficulties or to shock from the assault. The evidence is otherwise sufficient to support the jury’s verdicts and the first-degree aggravated-robbery conviction is affirmed.
Affirmed in part, reversed in part, and remanded.