This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of: P. Q. C.
Filed June 5, 2007
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 27-JV-06-2746
Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant P.Q.C.)
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent State of Minnesota)
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant challenges his delinquency adjudication for attempted simple robbery and the district court’s subsequent decision to place him on supervised probation, arguing that (1) he did not waive his right to an omnibus hearing, (2) he did not waive his right to testify in his own defense, (3) the district court erred by admitting lineup identifications, (4) the evidence was insufficient to support his conviction, (5) the disposition was not supported by sufficient findings, and (6) the district court violated Minn. R. Juv. Delinq. P. 15.04 by failing to order appellant’s residential placement during the dispositional hearing. Because we conclude that (a) appellant waived his right to an omnibus hearing, (b) appellant waived his right to testify in his own defense, (c) the district court did not err by admitting the lineup identifications, (d) the evidence was sufficient to support the district court’s determination that appellant was guilty of attempted simple robbery, and (e) the district court did not violate rule 15.04, we affirm in part. But because we conclude that the district court’s order for out-of-home, residential treatment was not supported by sufficient findings, we reverse in part and remand.
On November 13, 2005, Sheila Englund was walking home from work when, near the intersection of 28th Street East and 10th Avenue South in Minneapolis, appellant P.Q.C. ran up behind her, “spun around in front of” her, and said, “Give me your purse, b‑tch.” Appellant attempted to pull the purse away from Englund by grabbing the purse strap, but Englund did not let go. When Englund pulled the purse strap back away from appellant, he shoved Englund to the ground, “walked across the street,” and entered a building through the back entrance door. Englund “curled” her arms around the purse and “screamed.” Englund eventually called the police and gave them a report of the incident before going to the emergency room to get her knee and elbow examined for possible injuries. Englund stated that her assailant was a “black” man who was wearing “a dark coat” with “the hood . . . down.”
On November 23, 2005, Englund gave a statement to Sergeant Sandberg of the Minneapolis Police Department, describing the assailant as a black male, about five feet six inches tall, and weighing at least 200 pounds. Later, Sergeant Sandberg asked Englund to look at a sequential lineup of photographs of six juvenile black men in an attempt to identify her assailant. Englund identified appellant as the individual who tried to take her purse. Englund testified that her assailant’s eyes stood out because they “had a lot of white to the eye.”
Bullhead, a witness who lived near the intersection of
A couple of days later, Bullhead spoke with Sergeant Sandberg about the incident. Eventually, Sergeant Sandberg showed Bullhead the same sequential lineup that Englund had previously viewed, and Bullhead identified appellant as the man she saw running away from Englund during the incident and also as the person she saw “face-to-face” as she was walking down the apartment stairs to help Englund.
Perry Coats, appellant’s father, testified that on the day of the incident, appellant was wearing a tan hoodie and blue jeans, but that appellant returned to the apartment and retrieved additional clothing roughly 30 minutes before Officer McCarthy of the Minneapolis Police Department came to the apartment to speak with appellant’s father. Officer McCarthy similarly testified that Perry told him on the afternoon of the incident that appellant was wearing “a tan hoodie when he came back to the house.” Although Officer McCarthy referred to appellant as “suspect number two” in his initial report written on November 13, 2005, he drafted a supplemental report on February 6, 2006, stating that he had mistakenly identified appellant as suspect two rather than suspect one. Officer McCarthy testified that he drafted the supplemental report after his sergeant suggested to him that he might have confused suspect two with suspect one.
Appellant was subsequently charged with attempted simple robbery. After trial, the district court orally ruled that the state had proven the petition, and appellant was, therefore, adjudicated delinquent and placed on supervised probation. On March 30, 2006, the district court ordered Bar None to complete a 35-day psychological evaluation of appellant in order to determine treatment and placement options. The evaluation report from Bar None “recommended a residential treatment facility to address [appellant’s] multiple needs.” The district court held a disposition hearing on May 16, 2006, and while appellant’s probation officer recommended out-of-home placement at the Hennepin County Home School Juvenile Male Offender Program, appellant’s attorney recommended release to the community with individual outpatient therapy and chemical-dependency treatment. After finding “that community safety would not be served if [appellant] is released to the community without residential treatment,” the district court ordered appellant “be placed at the Hennepin County Home Juvenile Male offender program for treatment.”
This appeal follows.
first contends that he was not fully and effectively informed of his right to
an omnibus hearing and therefore his waiver was not voluntary or intelligent.
The notice required by this rule shall be provided by the prosecutor within five (5) days of a not guilty plea by the child. If child’s counsel makes a demand for disclosure pursuant to this rule, the disclosures shall be provided within five (5) days of the demand. Evidence which becomes known to the prosecutor after the deadlines for disclosure provided here, shall immediately be disclosed to child’s counsel.
At the pretrial conference, the court shall determine whether there are any constitutional or evidentiary issues and, if so, schedule an omnibus hearing pursuant to Rule 12. If there is no pretrial conference, constitutional or evidentiary issues shall be raised by written motion of the child’s counsel or prosecuting attorney, and the court shall schedule an omnibus hearing. The written motion must specifically set forth the issues raised.
In addition, Minn. Stat. §
260B.163, subd. 10(a) (2006), states that “[w]aiver of any right which a child
has under this chapter must be an express waiver voluntarily and intelligently
made by the child after the child has been fully and effectively informed of
the right being waived.” Determining
whether the rules of criminal procedure have been properly interpreted is a
question of law subject to de novo review.
State v. Nerz, 587 N.W.2d 23,
In In re Welfare of M.E.M., 674 N.W.2d 208,
214 (Minn. App. 2004), a case that also involved a challenge to identification
evidence, this court considered the issue of whether a defendant properly
waived his right to an omnibus hearing, despite the fact that the waiver was
not on the record. This court stated
that while “it is the better practice in an EJJ bench trial to have the waiver
of an omnibus hearing specifically on the record . . . the lack of a specific
waiver of an omnibus hearing on the record” did not mandate reversal.
appellant entered a plea of not guilty on February 24, 2006. The pretrial conference was held on March 7,
2006, and the state notified appellant on March 14, 2006, that identification
procedures had been used. Despite the
clear presence of identification procedures, neither of the attorneys raised
the issue of an omnibus hearing. Therefore,
although the district court should have held an omnibus hearing, because
appellant failed to object or raise the issue of the hearing, there is a
presumption of waiver. State v. Gustafson, 610 N.W.2d 314, 318
next argues that he did not waive his right to testify in his own defense. The right of a defendant to testify on his or
her own behalf is a fundamental constitutional right and must be knowingly,
intelligently, and voluntarily waived. M.E.M., 674 N.W.2d at 214. In addition, the right is personal to the
defendant and cannot be waived by defense counsel. State
v. Walen, 563 N.W.2d 742, 751 (
M.E.M., this court also considered
whether a defendant waived his right to testify in his own defense, and if so,
whether the waiver was proper.
Here, appellant did not raise his right to testify on the record. Accordingly, we presume that the decision not to testify was made voluntarily and intelligently and that appellant therefore properly waived his right to testify.
argues that the district court erred by admitting the lineup identifications
because the photographic sequential lineups were unconstitutionally suggestive
and therefore violated his due-process right to a fair trial. But appellant did not object to the
admissibility of the identifications at trial.
On appeal, this court generally considers only those issues presented to
and considered by the district court. Thiele v. Stitch, 425 N.W.2d 580, 582 (
eyewitness identification procedures are reviewed by this court to determine:
(1) whether the procedure producing the identification was unnecessarily
suggestive, and (2) whether, if the procedure was unnecessarily suggestive, the
totality of the circumstances nevertheless establishes that the evidence is
reliable. State v. Ostrem, 535 N.W.2d 916, 921 (
Here, Sergeant Sandberg asked both Englund and Bullhead to look at a sequential photographic lineup and to identify Englund’s assailant. All six of the photos appear to be of overweight, juvenile black men. But appellant’s lineup photograph was lighter in tone than the other five photos and may have unfairly singled out appellant for identification. We therefore conclude that the photographic lineup was unnecessarily suggestive, and alternatively examine the identifications under the totality of the circumstances to determine whether they were reliable.
The first and second factors this court considers under the totality analysis are the opportunities of the witnesses to view the criminal at the time of the crime and the degree of attention that the witnesses paid to the criminal.
Here, the record indicates that when Englund left work on the afternoon of November 13, 2005, and began her walk home, she passed appellant in the street. Englund testified that she remembered appellant’s face because he “had a lot of white to the eye.” In addition, Bullhead testified that when she first saw appellant, he was “right next” to Englund and that she recognized him because she had seen him in front of the apartment building earlier in the day. Furthermore, when Bullhead was going down the stairs to aid Englund, she came “face-to-face” with appellant and stated that she recognized him as a person who lived in the building.
B. Accuracy of Witnesses’ Prior Description of Criminal
The next factor this court should examine is the accuracy of the witnesses’ prior description of the criminal. Here, Englund described appellant as a “black male” who was “five-feet-six-inches” tall and who weighed “at least 200 pounds.” Bullhead described appellant as a “black male” who weighed “about 300” pounds and was wearing a “black jacket.” Although Englund and Bullhead’s prior descriptions of appellant’s height and weight may be slightly off the mark, the amounts estimated by them were similar to those estimated by the officers and close to appellant’s actual height and weight.
C. Level of Certainty of Witnesses in Making Identification
This court should also consider the level of certainty of the witnesses in making the identification. The record indicates that Englund positively identified appellant when shown the photographic lineup due to her recognition of his eyes. Bullhead also positively identified appellant, indicating that he was a person who lived in her building and the person whom she saw next to Englund immediately after the incident and on the stairs as she was going to aid Englund. In addition, both Englund and Bullhead made positive in-court identifications of appellant.
D. Amount of Time Elapsed Between Crime and Identification
court should consider the amount of time that elapsed between the crime and the
identification. Appellant argues that neither
Englund nor Bullhead viewed the photographic lineups until three and one-half
weeks after the date of the incident.
But the record does not support appellant’s contention. In fact, Englund testified that she
identified appellant in the photographic lineup within two weeks after the
incident. Further, Bullhead testified
that she identified appellant either “a couple of days” after the incident or at
“another time.” But even if the
identifications took place three and one-half weeks after the date of the
incident, the amount of time does not necessarily invalidate the
identifications. See, e.g., State v. Dillard, 355 N.W.2d 167, 174 (
Despite the likelihood that the identification procedure used here was unnecessarily suggestive, we conclude that a consideration of the totality of the circumstances nevertheless establishes that the identifications were reliable.
next argues that the evidence is insufficient to support the district court’s
determination that he is guilty beyond a reasonable doubt of attempted simple
robbery. In considering a claim of
insufficient evidence, this court’s 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 allow the fact-finder to reach
the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (
Here, appellant was adjudicated delinquent for committing attempted simple robbery under Minn. Stat. §§ 609.17, subd. 1, .24 (2004). Section 609.24 provides:
Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
Furthermore, section 609.17, subdivision 1, states that “[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime, and may be punished as provided in subdivision 4.”
Here, Englund and Bullhead both testified that the assailant was a larger black male who was wearing a black coat. Both witnesses also confirmed that after the assailant pushed Englund to the ground, he entered a building across the street. This testimony is consistent with Englund and Bullhead’s statements to the police immediately after the incident. In addition, both witnesses made independent, positive identifications of appellant based on the photographic lineup. Further, both witnesses positively identified appellant in court.
Appellant argues that there are inconsistencies in the testimony, such as Bullhead’s statement that the man she met on the staircase was wearing a hat. But we have stated that “[e]ven with minor contradictory testimony, appellate courts defer to the fact-finder’s determinations regarding the weight and credibility of individual witnesses.” C.J.W.J., 699 N.W.2d at 335. Therefore, viewing the evidence in the light most favorable to the conviction and assuming that the district court believed the state’s witnesses and disbelieved any evidence to the contrary, we conclude that the evidence is sufficient to support the district court’s determination that appellant is guilty of attempted simple robbery.
also argues that the district court abused its discretion by failing to make
sufficient findings to support the disposition.
The district court has “broad discretion to order dispositions
authorized by statute in delinquency cases.”
In re Welfare of M.A.C., 455
N.W.2d 494, 498 (
goal of delinquency dispositions is to rehabilitate the offender” and a
district court’s “disposition must be necessary
to achieve that goal.” M.A.C., 455 N.W.2d at 498 (quotation
omitted). To measure what is necessary,
a district court must consider both the severity of the child’s delinquency and
the severity of the proposed disposition.
“A delinquency disposition must also serve the child’s best interests.” L.K.W., 372 N.W.2d at 399; see also Minn. R. Juv. Delinq. P. 15.05, subd. 2(B)(2). When considering a residential placement, the best-interests standard requires the district court to find that the evidence indicates, first, that the “aims of the law cannot be realized without removal of the child from her home,” and second, that “the placement being considered is suitable for the needs of the child.” L.K.W., 372 N.W.2d at 399-400.
addition, the district court’s dispositional order must make written findings
of fact to support the disposition ordered and must also address the following
issues: (1) why public safety is served by the disposition ordered, Minn.
R. Juv. Delinq. P. 15.05, subd. 2(A)(1); (2) why the disposition ordered serves
the child’s best interests, Minn. Stat. § 260B.198, subd. 1(m)(1) (2006);
Here, the district court adjudicated appellant delinquent for attempted simple robbery, placed appellant on supervised probation, and ordered Bar None to complete a 35-day psychological evaluation of appellant in order to help determine the most appropriate placement for him. Bar None subsequently issued a 14-page evaluation report, recommending that appellant “be placed in an inpatient dual diagnosis treatment program to learn to develop skills to abstain from his drug use and begin to develop the skills necessary for his future as an independent young adult.” In addition, the Bar None evaluation recommended that appellant (1) receive individual therapy, (2) receive inpatient chemical-dependency treatment, (3) and continue seeing a psychiatrist.
Following the disposition hearing held on May 16, 2006, the district court ordered that appellant “be placed at the Hennepin County Home School Juvenile Male offender program for treatment.” The district court made the following findings of fact:
1. [Appellant] was found guilty of one count of Attempted Simple Robbery.
2. [Appellant] was adjudicated delinquent and placed on probation. He was ordered to complete a 35-day psychological evaluation at Bar None to determine treatment/placement options for him.
3. The Court received the Evaluation/Discharge report from Bar None which recommended a residential treatment facility to address the child’s multiple needs. His needs include chemical dependency treatment, psychiatric consultation with medications, educational needs, development of socially acceptable behavior, and individual therapy.
4. The Probation Officer . . . recommended placement at the Hennepin County Home School Juvenile Male Offender Program.
5. [Appellant’s] attorney asked for release to the community with individual therapy and chemical dependency treatment on an out-patient basis.
6. The court finds that community safety would not be served if [appellant] is released to the community without residential treatment. Residential treatment was recommended by Bar None through its evaluation process and by the Probation Officer assigned to this case. Given the behavior described in the petition and found to be true by this Court after trial, [appellant] needs residential treatment in order to be returned to law abiding behavior.
A. Public Safety
In determining an out-of-home disposition for a child, the district
court must first consider the effect the disposition will have on public
community safety would not be served if [appellant] is released to the community without residential treatment. Residential treatment was recommended by Bar None through its evaluation process and by the Probation Officer assigned to this case. Given the behavior described in the petition and found to be true by this Court after trial, [appellant] needs residential treatment in order to be returned to law abiding behavior.
Furthermore, although not discussed by the district court, the record references two prior disorderly conduct adjudications involving appellant. While minimal, these findings, which are supported by the evidence, are sufficient to support the district court’s determination that public safety would be served by the disposition.
B. Best Interests of the Child
mandates that the best interests of the child are normally served by parental
C. Alternative Dispositions
The district court
must also make written findings identifying what alternative dispositions were
considered and why such alternatives are not appropriate.
Each [district] court disposition rests in part on a finding that [an out-of-home] placement will serve better than a “regular daytime community service program” in impressing upon the children the seriousness of their conduct, giving the child insight into the causes and nature of [his] behavior, and identifying needs for further intervention.
J.S.S., 610 N.W.2d at 367 (second and third alterations in original) (quoting In re Welfare of C.A.W., 579 N.W.2d 494, 498 (Minn. App. 1998)). Here, appellant’s counsel asked that appellant be released to the community but be required to attend outpatient individual therapy and chemical-dependency treatment. While noting this request in its findings of fact, the district court did not expressly respond to appellant’s counsel’s request for release into the community and outpatient treatment. Rather, the district court simply noted that, given appellant’s behavior, it believed that appellant needs residential treatment. This is not a sufficient finding regarding alternative dispositions.
D. Present Custody
“[o]n its face this aspect of the mandates for findings adds little to the
rule that the [district] court address dispositional alternatives . . . the
rule is a reminder of the preference for placing children in their own homes,
and it calls for attention to the families of the children.” C.A.W.,
579 N.W.2d at 499. Here, there is little
evidence in the dispositional record on appellant’s family. Furthermore, the district court made no
findings either at the dispositional hearing or in its written order reflecting
a consideration of appellant’s familial relationships. “Correctional placements cannot occur without
evidence and findings reflecting consideration of the child’s familial
E. Suitability of Placement
Finally, “[a] dispositional order that places a child out of his home must contain written findings stating the reasons the placement facility will be suitable to the needs of the child.” J.S.S., 610 N.W.2d at 368; see also Minn. R. Juv. Delinq. P. 15.05, subd. 2(A)(3)(b) (stating that “suitability” takes “into account the program of the placement facility and assessment of the child’s actual needs”). Here, the district court found that a residential treatment facility was necessary to meet appellant’s multiple needs, including chemical-dependency treatment, psychiatric consultation with medications, educational needs, development of socially acceptable behavior, and individual therapy. Thus, the district court did briefly address the needs of appellant that were expected to be met by the placement program. But the record does not include any information on the Hennepin County Home School Juvenile Male Offender Program, and the district court did not make any findings regarding why the program was particularly suitable to appellant’s rehabilitation needs.
We conclude that the district court’s findings are insufficient to satisfy the requirements under both section 260B.198, subd. 1(m), and rule 15.05, subd. 2(A), with regard to (1) why appellant’s best interests will be served by a residential placement; (2) consideration of alternatives to correctional placements; (3) why appellant’s current custodial arrangement is unacceptable; and (4) why the particular placement at the Hennepin County Home School Juvenile Male Offender Program is appropriate and beneficial. Because the record does not indicate the ordered duration of appellant’s out-of-home residential treatment, we reverse the district court’s order and remand for more detailed findings of fact comporting with the statutory and rule requirements. See In re Welfare of N.T.K., 619 N.W.2d 209, 211-12 (Minn. App. 2000) (reversing and remanding to district court for limited purpose of developing findings that satisfy statutory and rule requirements when appellant was still in residential treatment); M.A.C., 455 N.W.2d at 499 (stating that “[a]lthough the [district] court’s findings were insufficient to support the new disposition, we do not remand for further findings but simply reverse as appellant has completed his [residential placement]” and “[f]urther dispositional findings would serve no purpose at this point in the proceeding”).
Finally, appellant argues in a post-argument submission to this court that the district court failed to comply with Minn. R. Juv. Delinq. P. 15.04 by entering appellant’s disposition in a written order.
Disposition hearings shall be separate from the hearing at which the charges are proved and may be held immediately following that hearing. Disposition hearings shall be conducted in a manner designed to facilitate opportunity for all participants to be heard. The child and the child’s counsel, if any, shall appear at all disposition hearings. The child’s parents and their counsel, if any, may also participate in the hearing. The child has the right of allocution at the disposition hearing, prior to any disposition being imposed.
Here, appellant’s trial was held on March 23, 2006, and the disposition hearing was subsequently held on May 16, 2006. Present at the disposition hearing were appellant, appellant’s attorney, appellant’s father and mother, the probation officer, and the state’s attorney. During the hearing, both the state and appellant’s attorney had the opportunity to address appellant’s disposition with the district court, with the state recommending out-of-home placement at the Hennepin County Home School Juvenile Male Offender Program and appellant requesting release to the community with individual outpatient therapy and chemical-dependency treatment.
In addition, both appellant and his mother spoke during the hearing, albeit briefly. Appellant’s mother answered a question posed by the district court regarding appellant’s current doctor, and appellant informed the district court of awards he had received while at Bar None. At the end of the hearing, the district court told the parties that it was not prepared to issue a determination because it had not yet had an opportunity to read the report issued by Bar None. When asked whether the court would like the parties to return later in the day, the district court responded:
Well, I don’t want to—it’s unfortunate because I don’t want the parents to have to keep going back and forth, I know this is not something that’s high on their list of things they would like to do. . . . I think what I’ll do is issue an order.
I won’t require another court appearance, but I do feel like I need to read the report in its entirety.
The district court subsequently issued an order dated May 18, 2006, placing appellant in the Hennepin County Home School Juvenile Male Offender Program.
Appellant contends that the disposition was entered by the district court “without a hearing and in the absence of” appellant and his parents. But a disposition hearing was in fact held by the district court on May 16. Further, rule 15.04, subd. 1, makes participation by a child’s parents permissive, not mandatory. In addition, although rule 15.04, subd. 1, states that a child “shall appear at all disposition hearings,” it does not require that the district court announce its placement determination at the disposition hearing. Finally, the record shows that appellant had the opportunity to address the district court at the May 16 hearing, and thus he was not deprived of his right of allocution. Accordingly, we reject appellant’s argument that the district court violated Minn. R. Juv. Delinq. P. 15.04, subd. 1, by ordering appellant’s out-of-home placement in a written order issued subsequent to the disposition hearing.
Affirmed in part, reversed in part, and remanded.
 A sequential lineup is a process by which the person attempting to make an identification looks at the lineup of photographs one photo at a time, as opposed to the more traditional “six-pack,” where the identifying individual views all of the photographs at the same time.
 Appellant cites a litany of treatises, law review articles, and commission reports in support of his argument. These sources, however, are merely persuasive authority and are not binding on this court.
Sergeant Sandberg believed that appellant is roughly “five-nine, five ten” in height and weighs “300 pounds, plus,” and Officer McCarthy thought appellant is “[m]aybe five-nine, five-eight” in height and weighs “maybe 200, 250 pounds.” It appears from the record that appellant is approximately six feet tall and 378 pounds.