This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Ramon Vera,


Filed October 14, 1997


Harten, Judge

Hennepin County District Court

File No. 96051223

David P. Chameli, Law Offices of David P. Chameli, P.A., 1570 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.



Ramon Vera appeals his conviction for second degree felony murder, arguing that the district court erred in refusing to suppress identification testimony that resulted from an impermissibly suggestive photo lineup. Vera also alleges that the evidence presented at trial was insufficient to sustain the jury's guilty verdict and that the district court improperly admitted a photograph of handguns found at his residence. We affirm.


Shortly before midnight on June 14, 1996, Frankie Browning was fatally shot in front of Vera's residence with a .44 caliber pistol. Police immediately canvassed the area and questioned a neighbor, who stated that just prior to the shooting he had seen two men outside arguing, one of whom was a short Indian or Hispanic man wearing dark shorts. The neighbor refused to cooperate further with police and did not testify at trial.

Police lacked significant leads until Purity Crutcher telephoned the police three days after the shooting, stating that she had information on the shooting but had been afraid to come forward. Crutcher and her boyfriend, Christopher Aron, had been across the street from Vera's residence at the White Castle restaurant drive-through just before the shooting and had noticed two men arguing. Crutcher described the assailant in her subsequent written statement as an older Indian man, about 5'6", weighing 197 to 205 pounds, with a long pony tail, beard and mustache, wearing a red shirt and black shorts. Crutcher had previously orally described the assailant to police more generally as Indian or Hispanic. Racine Moss, Vera's girlfriend, later confirmed that Vera had been wearing a red shirt that evening.

Both Crutcher and Aron stated that the assailant had a gun and the victim had no weapon. Although neither Crutcher nor Aron saw the actual shooting, both heard the two men arguing and saw them at close range under good lighting conditions--first as they drove by the men and later as they waited for a couple minutes in the drive-through. After hearing the shot, Crutcher also saw the assailant running from the area and the victim lying on the ground.

Police showed Crutcher a photo lineup of six middle-aged men with beards, which had been compiled based on the neighbor's description. Crutcher immediately identified Vera as the assailant. The next day, police found four handguns during a search of Vera's residence. None was a .44 caliber, but police also found an empty holster suitable for a .44 caliber handgun. Vera was then arrested and charged with second degree murder.

Vera moved to suppress Crutcher's identification, arguing that the lineup was unduly suggestive because it included mostly Caucasians and not enough Indian or Hispanic-looking individuals and because the beards of the other men in the lineup were not so long or full as Vera's. The district court denied the motion.

At trial, Crutcher and Aron both identified Vera as the man they saw arguing with Browning on the night of the shooting. Vera presented an alibi defense that he had been with various friends and family during relevant times that evening. Over Vera's objection, the district court admitted a photograph of the handguns discovered at Vera's residence. The jury convicted Vera of second-degree felony murder.


1. Admission of photo lineup identification. In deciding whether an identification of an accused should be suppressed, we must determine whether "the identification procedures used were so unnecessarily suggestive as to create a very substantial likelihood of irreparable misidentification." State v. Montjoy, 366 N.W.2d 103, 106-07 (Minn. 1985). Even if the identification procedures were unnecessarily suggestive, the identification will still be admitted if the totality of the circumstances indicates that the evidence is reliable. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). Because this is a constitutional matter involving due process, we review the district court's determination de novo. State v. Biron, 266 Minn. 272, 281, 123 N.W.2d 392, 398 (1963).

Vera primarily argues that the photo lineup was impermissibly suggestive because he was the only Hispanic in the lineup. The relevant inquiry is whether the photos that the police chose for the lineup were reasonable given the descriptions the police received and the resources available to them, and whether the other photos bore a reasonable similarity to that of Vera.

Because both the neighbor and Crutcher had described the assailant as possibly Indian or Hispanic (they were obviously uncertain of his racial heritage), police were obliged to include a variety of photos of men who could be perceived as Hispanic or Indian when seen at night, regardless of their actual heritage. As noted by the district court, the selected photos portrayed facial shots of middle-aged bearded men and did not display Vera's short, stocky stature, and his long ponytail, which could have made him readily distinguishable. We agree with the district court that at least three of the five other persons photographed bear a reasonable likeness to Vera and could be perceived as being Indian or Hispanic. Accordingly, we conclude that the photo lineup was not impermissibly suggestive and the district court properly refused to suppress Crutcher's identification.[1]

Furthermore, even were the lineup unnecessarily suggestive, the totality of the circumstances indicates that Crutcher's identification of Vera was reliable. Crutcher had ample opportunity to observe the two arguing men as she drove directly by them and parked just across the street to wait for her order. Although it was nighttime, the area was well-lit by the White Castle and various street lights. Crutcher watched the men closely, intrigued and alarmed by their argument and the weapon she saw in the assailant's hand. Only three days later, Crutcher described the assailant in detail to the police and immediately and unequivocally identified Vera from the photo lineup. Finally, Crutcher's description fit Vera precisely and was consistent with the descriptions given by Aron and the neighbor.

2. Sufficiency of evidence. Vera argues that the evidence at trial was insufficient for a jury to find him guilty beyond a reasonable doubt.

Where there is a challenge to the sufficiency of the evidence, our review on appeal 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. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

At trial, both Crutcher and Aron identified Vera as the man they saw arguing with Browning just before the shooting, and both testified that Vera had held a gun. It is well-settled that a guilty verdict may be based on the testimony of even a single witness. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976); State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969).

In addition, the shooting occurred in front of Vera's residence, and Vera had access to handguns. Although none of the four handguns found at Vera's residence was the murder weapon, police did find an empty holster suitable for a .44 caliber handgun.

Finally, the jury was free to disbelieve Vera's alibi defense and believe the identification testimony of the state's two witnesses. We conclude that the evidence was sufficient to support the jury's guilty verdict.

3. Admission of photograph. The district court has discretion to admit photographs at trial; we review only for abuse of discretion. State v. Daniels, 361 N.W.2d 819, 828 (Minn. 1985). As noted by the district court, the photograph of the handguns found at Vera's residence had some relevance to trial issues (i.e., Vera's access to and familiarity with handguns), and detailed testimony about the handguns had already been received into evidence without defense objection. The defense itself used evidence that none of the handguns found at Vera's residence was the murder weapon to support its position that Vera was not the murderer. Accordingly, the district court acted within its discretion in admitting the photograph. See State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950) (relevant photographs that accurately portray "anything which it is competent for a witness to describe in words" or are "helpful as an aid to a verbal description of objects" are admissible).


[ ]1 Vera also argues that the district court improperly relied on hearsay testimony in admitting the lineup identification. This argument is without merit. Minn. R. Evid. 104(a) specifically provides that a court is not bound by the rules of evidence in determining preliminary questions regarding the admissibility of evidence.