This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-98-445

State of Minnesota,
Appellant,

vs.

Derrick Taylor,
Respondent.

Filed September 22, 1998
Affirmed in part, reversed in part, and remanded
Amundson, Judge

Hennepin County District Court
File No. 97101559

Hubert H. Humphrey III, Attorney General, 102 State Capital, St. Paul, MN 55155; and

Michael O. Freeman, Hennepin County Attorney, Donna Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414; and

William E. McGee, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for respondent)

Considered and decided by Amundson, Presiding Judge, Willis, Judge, and Holtan, Judge*.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

The state appeals the district court's pretrial decision barring evidence from a one-person show-up identification and dismissal of the state's complaint against appellant. The state argues that the show-up was not an identification, but a confirmation, and therefore the district court's analysis was improper. The state alternatively argues that even if the show-up was impermissibly suggestive, there was adequate independent evidence to support the state's complaint. We affirm the suppression of evidence related to the show-up, reverse the dismissal of the complaint, and remand for trial.

FACTS

On or about November 6, 1997, victim M.B., a then-13-year-old girl, was in the laundry room of her apartment building when a man allegedly approached her from behind, told her to be quiet, unbuttoned her pants, pulled her to her knees, and inserted his fingers into her vagina. After the five-minute assault was over, the man told her not to tell anyone. M.B. immediately turned around, saw the man's face, and ran out of the room.

The next day, M.B.'s friend, J.P., saw that M.B. was upset and asked her what was wrong. Eventually, M.B. confided to her about the incident, saying that "Denise Ewing's brother," also known as "Bigelow," had come up behind her and raped her in the laundry room. J.P. told M.B.'s sister and guardian, Kimberly Finnie, about M.B.'s confidences. Finnie confirmed with M.B. that Bigelow had assaulted her.

The next day, Finnie began looking for Bigelow in the neighborhood. When she located him, she called the police, reported the incident, and told them that Bigelow was in a car outside of an address. When police arrived, there was no one in the car, but police went to the door of the address. Respondent Derrick Taylor and a woman answered the door, and when police asked for "Bigelow," Taylor responded, "That's me." Finnie identified Taylor as the man she knew as Bigelow.

The police then brought Taylor outside Finnie and M.B.'s apartment. Finnie went upstairs where M.B. was and M.B. looked out the window to approximately 30 feet away where Taylor stood. She identified him as the man who assaulted her. Taylor was arrested for third-degree criminal sexual conduct.

After an initial Rasmussen hearing, in which the court preliminarily determined that the show-up had been impermissibly suggestive and therefore granted Taylor's motion to suppress, the court allowed the state's request that the hearing be reopened to allow more evidence. After the second Rasmussen hearing, the court came to the same conclusion, suppressing evidence stemming from the show-up, finding that there was insufficient independent evidence to sustain the state's case, and dismissing the complaint. This appeal followed.

D E C I S I O N

I. Suppression of Evidence

In a pretrial appeal, this court will reverse the district court's determination only if the state demonstrates clearly and unequivocally (1) that the district court erred and (2) that the error will have a critical impact on the outcome of the trial. State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987).

[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

"[R]eliability is the linchpin in determining the admissibility of the identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977). The factors used to determine whether a show-up was impermissibly suggestive were established in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972). The Supreme Court stated that the totality of the circumstances should be considered to determine the reliability of such identifications, specifically listing the following factors: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the defendant; (4) the level of certainty shown by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382. "Against these factors the court must weigh the corrupting effect of the suggestive identification." State v. Blegen, 387 N.W.2d 459, 463 (Minn. App. 1986), review denied (Minn. July 31, 1986) (citing Manson, 432 U.S. at 114, 97 S.Ct. at 2253).

Here, the district court reviewed these factors and determined that the show-up identification was too suggestive to be reliable. We consider each Biggers factor in light of the facts of the case:

(1) opportunity of the witness to view the defendant at the time of the crime

Because the alleged sexual assault was committed from behind, M.B. admits that she did not have an opportunity to see the assailant until she turned around as she ran out of the room. There is doubt whether her fleeting look was sufficient to identify him.

(2) the witness's degree of attention

Here, it is unclear how attentive M.B. was. She claims she was able to see the assailant long enough to identify him. However, even a state's witness, Officer Duane Fredrickson, who investigated the incident, stated that M.B. was highly traumatized from the incident, had very low self-esteem, and had poor communication skills.

(3) the accuracy of the witness's prior description of the defendant

M.B. did not actually offer a physical description of the assailant prior to the show-up (a photographic identification was made after the show-up). She identified him by the name by which she knew him, "Bigelow," and by saying that he was "Denise Ewing's brother." There is very little evidence regarding how M.B. knew Bigelow or how well-acquainted they were.1 Taylor did respond to the name "Bigelow." There has been no evidence presented regarding his relationship to Denise Ewing.

Because the suspect had been identified by the name Bigelow and because he responded to that name when the police asked for him, the state contends that this was not a show-up identification at all, but was a "confirmation." This semantic point would have more validity if the police had stopped their meeting with Taylor at that point, having confirmed his identification as Bigelow. However, the police then went on to bring Taylor to be physically identified by M.B., in a manner characteristic of a show-up. There is no evidence to indicate that the procedure was anything other than a show-up identification.

(4) the level of certainty shown by the witness at the confrontation

M.B. always communicated her certainty that Taylor was the man who assaulted her.

(5) the length of time between the crime and the confrontation

The show-up was conducted within a few days after the assault, which does not indicate undue delay. See Manson, 432 U.S. at 115-16, 97 S. Ct. at 2253-54 (identification that occurs sooner than "weeks or months" after the crime does not raise suspicions of undue delay).

Another factor that was addressed by the district court is Finnie's possible influence in the identification. The district court was concerned that it was Finnie who had reported the crime and that Finnie was present with M.B. when M.B. identified Taylor from their apartment building. As the district court explained, "I have no evidence before me of the sister's relationship with Bigelow or what she said to the victim upstairs at the time of the identification." The concern for undue influence is reasonable given the evidence at the hearings.

It is odd police procedure, given that the police had never spoken with M.B., let alone gotten a physical description from her or written a police report, to conduct a show-up. While show-ups can be used if they do not create a likelihood of misidentification, they are suggestive. State v. Hazley, 428 N.W.2d 406, 410 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988). Generally, show-ups are given greater weight the closer in time they occur to the incident. See, e.g., State v. Roehl, 409 N.W.2d 44, (Minn. App. 1987) (police conducted show-up 20 minutes after witness of break-in gave a name and physical description of suspect); State v. Nunn, 399 N.W.2d 193, (Minn. App. 1987) (show-up was conducted within one hour of robbery); State v. Lloyd, 310 N.W.2d 463, (Minn. 1981) (victim identified defendant in show-up moments after defendant's arrest for robbery).

The state has not demonstrated by clear and convincing evidence that the district court erred by finding the show-up identification impermissibly suggestive; we therefore affirm the suppression of evidence related to the show-up.

II. Dismissal of the Complaint

A dismissal for lack of probable cause is appealable if it is based on a legal determination. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991). It is reviewed, like other legal determinations, de novo. See e.g., State v. Diedrich, 410 N.W.2d 20, 22-23 (Minn. App. 1987).

We conclude that the district court improperly determined there was insufficient evidence to support the state's case. It is now within the state's discretion to decide whether there is adequate evidence for trial.

Affirmed in part, reversed in part, and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

1. It appears, based on Officer Fredrickson's testimony, that M.B. knew Bigelow from the neighborhood and that she had seen him between 10 and 20 times. However, the suggestiveness of Fredrickson's questions was called into question by the defense.