This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Lucanus John Plaisance,
Filed April 24, 2007
Pipestone County District Court
File No. K9-05-188
Lori Swanson, Attorney General, James B. Early, Assistant Attorney
James O’Neill, Pipestone County Attorney,
Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction of first-degree burglary, appellant argues that the district court abused its discretion by admitting photo-lineup identifications that were the product of an unnecessarily suggestive procedure because the police officer failed to tell the victims that the suspect may or may not be in the lineup. We affirm.
D E C I S I O N
Appellant Lucanus John Plaisance argues
that the district court abused its discretion when it admitted photo-lineup
identifications. In general,
“[e]videntiary rulings rest within the sound discretion of the [district] court
and will not be reversed absent a clear abuse of discretion.” State
v. Amos, 658 N.W.2d 201, 203 (
“Admission of identification evidence
derived from suggestive identification procedures violates due process.” State
v. Roan, 532 N.W.2d 563, 572 (
Appellant argues that the photo lineup was unnecessarily suggestive because the deputy did not tell the victims that the suspect may not be in the lineup. Appellant contends that by not telling the victims that the suspect may not be in the lineup, the deputy suggested to the victims that the suspect was in the lineup.
relies on State v. Young, 710 N.W.2d
Here, J.C. awoke to the sound of someone rustling around in his kitchen; he got out of bed and saw a man rummaging through his belongings. J.C. was only a few feet away from the man and could see his face. J.C. asked the man who he was and what he was doing in his house. The man apologized for being in the wrong house and explained that he thought he was in his friend’s house. J.C. told the man that his friend did not live there and to stay while he called 911. The man ran out the front door while J.C. called 911.
The same morning, about seven blocks away from J.C.’s house, S.P. heard someone come in her back door, into her bedroom, and search through the clothing lying on her bed. The person left through the back door, and S.P. looked out the window and saw a man standing approximately 40 feet from her back door. The next day, a deputy showed J.C. a photo lineup and asked him if the person he saw in his home was in one of the photos. J.C. identified appellant as the person he saw in his home. The police showed S.P. the same photo lineup, and she also identified appellant as the man she saw.
During trial, appellant’s attorney asked J.C. if the deputy told him whether the suspect was in the photo lineup. J.C. responded: “Nope . . . he did not say that the person was for surely in the lineup. . . . He didn’t say one of the people is that person or anything like that.” Appellant’s attorney asked if the deputy said “that the person might not be in th[e] photos.” J.C. stated, “He didn’t say that either.” Appellant’s attorney asked, “Did you assume at that point that the person must be in the photos?” J.C. replied, “No.” Appellant’s attorney asked S.P. if the deputy told her “that the person was not in the lineup or could the person might not even be in the line-up?” S.P. replied that the officer did not say that.
Appellant’s case is similar to Young in that appellant does not argue that he was singled out in any way. And the key factor in considering whether an identification procedure was unnecessarily suggestive is whether the defendant was unfairly singled out. Ostrem, 535 N.W.2d at 921. Additionally, the witnesses testified that the deputy did not indicate to them whom to choose from the lineup. J.C. testified that the deputy did not tell him that the suspect was in the lineup and that he did not assume that the person was in the lineup. S.P. testified that the deputy only told her that he was going to show her a photo lineup. But appellant suggests that the police must tell the witness that the suspect may or may not be in the lineup. Although the court in Young stated that this statement factored into their analysis, it did not say that the officer must make this statement. 710 N.W.2d at 282. Therefore, the procedure that the police used here was not unnecessarily suggestive because appellant was not singled out for identification.
Reliable Under the Totality of the Circumstances
Appellant argues that the identifications were not reliable considering the totality of the circumstances. In determining whether the identification evidence was reliable under the totality of the circumstances, this court considers 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.
Here, J.C. testified that he got a good look at the man, did not have anything obstructing his view, and that there was sufficient light for him to see. J.C. paid significant attention because he carried on a brief conversation with the man. Appellant suggests that J.C.’s description of him was not accurate because J.C. testified that appellant was shorter than J.C. (6’4”) at approximately 6’2” and appellant is actually only 5’9” or 5’10” tall. But J.C. did not say that appellant was 6’2”—he stated only that the man was shorter than he and guessed two inches shorter, which could have been accurate given that J.C. had just gotten out of bed and appellant was most likely wearing shoes. Appellant also contends that J.C.’s description was inaccurate because J.C. testified that the man did not have any noticeable facial hair and appellant claims to have had facial hair. But the deputy testified that when he interviewed appellant days after the burglaries, he did not recall if appellant had a moustache, but stated that he definitely did not have a beard. The only evidence that appellant had facial hair was appellant’s testimony. Further, J.C. testified that he was absolutely certain of his in-court identification of appellant. Finally, the police showed J.C. the photo lineup the day after the burglary, thus, the lapse in time was minimal. Therefore, J.C.’s identification was reliable under the totality of the circumstances. It is not necessary to do an analysis of S.P’s identification because the jury found appellant not guilty of the burglary of her home. Because the photo lineup was not unnecessarily suggestive and because J.C.’s identification of appellant was reliable under the totality of the circumstances, appellant is not entitled to a new trial.