This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-95-1831

State of Minnesota

Respondent,

vs.

Walter Mack Ford,

Appellant.

Filed May 28, 1996

Affirmed

Davies, Judge

Dakota County District Court

File No. K395278

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

James C. Backstrom, Dakota County Attorney, Stuart E. Shapiro, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 W. Highway 55, Hastings, MN 55033 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, Suite 600, 2829 University Ave., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant Walter Mack Ford challenges his convictions for aggravated robbery and second-degree assault on the ground that the show-up identification procedure was impermissibly suggestive. We affirm.

FACTS

The victims in this case had arranged to purchase marijuana from appellant's brother. Upon arriving at the apartment building where the transaction was to take place, appellant, his brother, and another man led the victims to a well-lit basement storage room. There, the three men robbed the victims at gunpoint. The robbery took about four minutes. The victims identified appellant in a show-up conducted less than one and one-half hours after the crime. During the show-up, appellant was wearing handcuffs, but the handcuffs were not visible to the victims.

Appellant's motion to suppress the identification evidence was denied and he was convicted of aiding and abetting aggravated robbery in the first degree in violation of Minn. Stat. '' 609.245, subd. 1, and 609.05 (1994), and aiding and abetting assault in the second degree in violation of Minn. Stat. '' 609.222, subd. 1, and 609.05 (1994).

D E C I S I O N

Our supreme court has repeatedly upheld the use of one-person show-up identification procedures. See, e.g., State v. Gutberlet, 346 N.W.2d 639, 642 (Minn. 1984) (upholding on-the-scene, one-person show-up minutes after robbery); State v. Mallory, 337 N.W.2d 391, 393-94 (Minn. 1983) (upholding show-up conducted minutes after armed robbery, even where victims had intentionally not looked at perpetrators' faces).

A one-person show-up identification procedure is proper unless, under the totality of the circumstances, the procedure is so suggestive as to create a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972)), review denied (Minn. Apr. 13, 1992) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). Put another way, even though a show-up is to some degree suggestive, the procedure will survive challenge if there is no substantial likelihood of irreparable misidentification. In order to evaluate the likelihood of irreparable misidentification, the court must consider five factors:

[T]he 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.

Id. at 199, 93 S. Ct. at 382. See also McDuffie v. State, 482 N.W.2d 234, 236-37 (Minn. App. 1992) (upholding one-person show-up based on analysis of five factors from Biggers).

Application of the five factors in this case satisfies us that there was no substantial likelihood of misidentification. Both victims had several minutes to view the robbers in good lighting, both before and during the robbery. One victim testified that he saw appellant's face several times and made a special effort to remember it. Appellant matched the general description both victims had initially given to police. Both victims were certain of their identifications; indeed, one victim clearly distinguished between the robbers, expressing more certainty about the identification of appellant than of another individual who was displayed to the victims, but then not charged. Finally, the show-up was conducted less than one and one-half hours after the crime, leaving little opportunity for the victims to have forgotten their assailants.

Appellant argues that the fact he was handcuffed during the identification procedure makes it impermissibly suggestive. We disagree. The handcuffs were not visible to the victims during the identification and no other circumstances suggest that the identification was tainted by use of the handcuffs.

Appellant implies that the victims' identifications were not accurate because, although they both identified a third individual as a perpetrator, police concluded that there was not enough evidence to refer that individual for prosecution. The failure to prosecute, though, does not mean that the victims were wrong in their identification of that person.

Finally, appellant cites social science authority for the proposition that the stress of being robbed makes it difficult to retain an accurate identification memory. We believe that, despite this assertion and whatever the merit that authority might have as applied in another circumstance, analysis of the Biggers factors indicates the identification procedure in this case did not create a substantial likelihood of irreparable misidentification.

Affirmed.