This opinion will be unpublished and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
In the Matter of the
Welfare of: C.D.S., Child.
Filed January 9, 2007
Stearns County District Court
File No. J9-05-51153
John M. Stuart,
State Public Defender, Jodie L. Carlson, Assistant State Public Defender,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert Raupp, Benton County Attorney, Benton County Courthouse, 615 Highway 23, P.O. Box 189, Foley, MN 56329; and
Janelle P. Kendall, Stearns County Attorney, Sarah E. Hilleren, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent State of Minnesota)
Considered and decided by Ross, Presiding Judge, Klaphake, Judge, and Worke, Judge.
Following a jury trial, appellant C.D.S. was found guilty of attempted robbery and was adjudicated as a delinquent with extended juvenile jurisdiction (EJJ) status. On appeal, he argues that his attorney was ineffective. Because his attorney failed to challenge the show-up identification procedure as impermissibly suggestive and failed to request a jury instruction on corroborating accomplice testimony, we conclude that his performance was deficient. We further conclude that given these multiple, serious errors, appellant was prejudiced and is entitled to a new trial. We therefore reverse and remand.
assistance of counsel claims involve mixed questions of law and fact, which
this court reviews de novo. Opsahl v. State, 677 N.W.2d 414, 420 (
Appellant first challenges his attorney’s failure to request suppression of the show-up identification procedure as impermissibly suggestive. Other than the out-of-court identification by the vehicle’s passenger during the show-up procedure, the only other evidence identifying appellant as the perpetrator was the testimony of his companions that he was the one who stood by the driver’s side window of the vehicle and spoke to the driver.
determining whether pretrial eyewitness identification testimony is reliable,
courts use a two-part test. State v. Ostrem, 535 N.W.2d 916, 921 (
Here, when the officers arrived at the scene, one spoke to the driver and passenger of the vehicle, while the others stationed themselves outside the McDonald’s, because the four black male suspects were still inside. One suspect was detained as he walked outside; the officers handcuffed him and placed him in the back of a squad car. The other three suspects were detained inside, handcuffed, and placed in separate squad cars.
One officer testified that he told the driver and passenger, “We have four people, would you mind taking a look at them?,” and the individuals “match[ed] the description” given. The officers then had each individual step out of the squad car while a light was shone on them. Appellant was the first person shown. The driver could not identify anyone because he was focused on the gun. The passenger identified appellant as the perpetrator because he was wearing a blue shirt.
acknowledges that handcuffing appellant and his companions and positioning them
next to squad cars was suggestive.
Even if a
show-up is impermissibly suggestive, the identification may be admissible if it
is reliable because it is derived from an adequate independent source. See
Ostrem, 535 N.W.2d at 921. In order
to evaluate whether an identification is reliable in spite of a suggestive
procedure, courts look to the totality of the circumstances, including (1) the
opportunity of the witness to view the criminal at the time of the crime; (2)
the witness’ degree of attention; (3) the accuracy of the witness’ prior
description of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the time between the crime and the
Here, the only one of these five factors that weighs in favor of admitting this evidence is the short length of time—15 minutes—between the incident and the show-up. The other factors weigh heavily against admission: the passenger admitted that he could not see well, had only a limited opportunity to view the perpetrator, did not see a gun and saw only the butt of a black item but did not know what it was, could not give a description of the perpetrator, and appears to have failed to mention the blue shirt until after he identified appellant, who was the first person presented to him in the show-up. Finally, the passenger’s lack of certainty weighs against admission: he merely testified that he “thinks” he was able to identify the perpetrator, that he was “fairly confident” in his identification because of the shirt color, and that he was as confident in his identification as he could have been. We therefore conclude that the show-up identification procedure was impermissibly suggestive on its face, that defense counsel’s failure to challenge it was deficient, and that the show-up identification would have been suppressed but for the attorney’s error.
next argues that defense counsel was ineffective because counsel failed to
request an instruction on the need for corroboration of the testimony of his
three companions, who could have been charged as accomplices. “A defendant may not be convicted based
solely on the uncorroborated testimony of an accomplice.” State
asserts defense counsel’s failure to request an instruction was not deficient
because appellant’s three companions were not accomplices to the attempted
aggravated robbery. An accomplice is
someone who could have been charged with and convicted of the offense with
which the accused is charged.
ample evidence in this record from which a jury could have found that
appellant’s companions were accomplices because they aided and abetted in the
crime. In particular, the evidence shows
that (1) the confrontation was initiated after one of appellant’s companions
told the other three that the two white men in a vehicle had yelled racial
epithets at them; (2) appellant and his four companions all had BB guns, either
in their pockets or in their backpacks;
(3) all four approached the vehicle; (4) while appellant spoke to
the driver, his three companions stood on the driver’s side, towards the back,
within sight of the driver and the passenger; (5) the driver testified that
after appellant threatened him and asked him for money, one of the other black
males either stepped in front of appellant or pulled him back, telling him that
they did not need a confrontation; (6) all four of the black males left the
vehicle together and walked back into the McDonald’s; and (7) appellant and one
of his companions went into the bathroom, where the companion abandoned his
backpack and where a BB gun matching the description of the one pointed at the
driver was found in the garbage can.
While appellant’s three companions all denied observing any robbery and
there is no direct evidence that any of them knew that appellant was going to
attempt to rob the driver of the vehicle, there is clearly evidence from which
the jury could find that appellant’s three companions were accomplices.
appellant has established that his attorney’s representation was deficient and
fell below an objective standard of reasonableness, he still must show “that
there is a reasonable probability that, but for counsel’s unprofessional
error[s],” the result would have been different. Gates
v. State, 398 N.W.2d 558, 561 (
Reversed and remanded.
 It is unclear whether the passenger identified the perpetrator as a black male in a blue shirt prior to the show-up. The passenger’s testimony is unclear, and one of the officers first testified that the passenger did not mention appellant’s blue shirt until after he identified appellant in the show-up, but he later suggested that the passenger mentioned the blue shirt prior to the show-up.