This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Lloyd Matthew McKenzie,


Filed December 29, 1998


Lansing, Judge

Hennepin County District Court

File No. 97042160

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Lloyd Matthew McKenzie, Inmate No. 189959, MCF-Faribault, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)

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



In an appeal from a robbery conviction, Lloyd McKenzie challenges the scope of the investigatory stop leading to his identification, the reliability of the show-up identification, and the propriety of the district court's juror communication and jury instructions. We find no constitutional violation or reversible error in the evidentiary rulings or the trial procedures, and we affirm.


A jury convicted Lloyd McKenzie of robbing Timothy Ammerman. Ammerman was assaulted and robbed as he walked home from a convenience store at approximately 10 p.m. According to Ammerman's trial testimony, he described his assailant to police as slightly taller and heavier than his own height of five feet eight inches and weight of 165 pounds. He further described his attacker as an African-American male with bushy hair, wearing a navy, yellow, and white "University of Michigan" shirt with elbow-length sleeves and matching long basketball shorts.

About four hours after the assault and robbery, the police saw a person, later identified as McKenzie, standing on a street corner in the area. McKenzie is African-American, approximately five feet eight inches tall, and weighs 176 pounds. He had fuzzy or nappy hair and wore work pants and a blue Michigan sweatshirt underneath a black jacket. He could not provide any identification for the police, but he said his name was "Victor Thompson," and he gave them an address two blocks away.

Officers were unable to confirm this identification through their computerized information service listing drivers' licenses and state identification cards. Police pat-searched him, removed his jacket, handcuffed him, placed him in the back seat of the squad car, and drove him to a police substation. At the substation police telephoned Ammerman, who arrived 10 to 15 minutes later. Police used a flashlight to illuminate McKenzie's face where he was seated in the squad car, and Ammerman identified McKenzie as his assailant.

McKenzie was charged with aggravated first degree robbery. The district court denied McKenzie's motion to suppress evidence obtained from the initial stop and the show-up identification. In their verdict the jury found McKenzie not guilty of aggravated first-degree robbery but guilty of simple robbery. We address, in turn, McKenzie's challenges to (1) the scope of the stop, (2) the reliability of Ammerman's identification, and (3) the impropriety of the district court's communication and instructions to the jury.



On undisputed facts, the validity of a stop is a legal determination. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). A brief investigatory stop requires reasonable suspicion of criminal activity, a lesser standard than probable cause that is required for an arrest. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). McKenzie maintains that the police exceeded the scope of an investigatory stop and made an impermissible arrest by detaining him for 20-25 minutes and transporting him to the substation. Neither the detention nor transportation necessarily equates to an arrest. See State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (stating no set time limitation on investigatory stops); State v. Moffatt, 450 N.W.2d 116, 120 (Minn. 1990) (placing suspect in squad car does not automatically convert valid stop into arrest).

Whether the facts demonstrate an arrest or an investigatory stop is not significant because the police acted on facts that were sufficient to establish probable cause. Those facts included: (1) McKenzie was standing alone on a corner at 1:50 a.m., approximately a block and a half from where Ammerman was robbed; (2) he had no apparent or declared purpose for being at that corner; (3) his general appearance matched the description Ammerman gave police; (4) he was wearing a blue and gold shirt with a University of Michigan logo--the same shirt Ammerman had described to the police; and (5) he gave the police a name and an address that they were unable to verify and could produce no identification. On these facts, police had probable cause to suspect that McKenzie was the person who had assaulted and robbed Ammerman.


To determine whether an identification procedure is so unduly suggestive that it violates due process requires an initial inquiry into whether the procedures were suggestive and, if suggestive, whether the identification is reliable in light of the totality of the circumstances. State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996). The district court concluded that although the show-up involved elements that would support a determination that it was suggestive, the evidence supporting the reliability factors precluded the likelihood of irreparable misidentification. See id. (listing reliability factors of witness's opportunity to observe, degree of attention, accuracy of initial description, certainty of identification, and time between crime and confrontation); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972) (stating same). We agree.

Ammerman testified that he could see the face of his assailant as he fought hand-to-hand with him for two to three minutes during the struggle. Ammerman's description of his attacker generally matched McKenzie's physical description: he was wearing a shirt with a Michigan logo, he was African-American, and he had "fuzzy" or "nappy" hair. And Ammerman made the identification of McKenzie within four hours of the incident. See Seeyle v. State, 429 N.W.2d 669, 673 (Minn. App. 1988) (concluding identification 12 days after crime "reasonably prompt").

McKenzie concedes that Ammerman stated he was certain in his identification, but argues this factor should be discounted because it does not prove accuracy and because Ammerman had consumed alcohol before the incident. We disagree. The four to five beers had been consumed over a time frame that ended two and one-half hours before the incident, and, on the facts in this record, we are unwilling to dispense with the element of certainty as an indication of reliability. See Biggers, 409 U.S. at 199, 93 S. Ct. at 382 (listing level of certainty as reliability factor). Ammerman testified that he was certain that McKenzie was his attacker when he saw him at the show-up, and he again identified McKenzie at trial, stating that he was "[v]ery sure" that McKenzie was his assailant. Under the totality of the circumstances, the identification was reliable.


At the end of the first day's jury deliberations, a judge other than the trial judge discharged the jury for the night. During the judge's routine comments, a juror indicated that they were deadlocked. The judge, without counsel present, responded:

There are substantial resources expended in these trials and, of course, we hope for a verdict. Again, I don't mean to intrude on your authority to decide what deliberation is appropriate, but I do think it's appropriate to have a good night's sleep and come back to it in the morning * * *.

We disagree that the judge's comments are coercive or introduce improper financial considerations. The resources expended could reasonably refer to human rather than financial resources, and in either event, a fair reading does not demonstrate any coercive misstatement that deprived McKenzie of an impartial jury. See State v. McGath, 370 N.W.2d 882, 886 (Minn. 1985) (holding communication between judge and jury outside defendant and counsel's presence is not reversible error unless defendant demonstrates communication deprived him of impartial jury).

McKenzie also claims reversible error in two other jury instructions, given in counsel's presence. First, while reading the initial jury instructions, the trial judge stated, "In the case of the defendant, however -- well, we can disregard that, because the defendant didn't testify. Sorry about that." Second, during deliberations, in response to a juror's report that the jury was evenly divided, the trial judge stated in part, "As you know from the instructions which were provided to you in writing, you do have to come up with a unanimous verdict." McKenzie asserts that this is an inaccurate characterization of the law because the jury was not required to reach a verdict.

The district court did not abuse its discretion or commit reversible error in its instructions to the jury. See State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (district court has broad discretion in selecting jury instructions). The misstatement on whether McKenzie testified was immediately corrected, and the jury was aware that McKenzie did not testify. The reference to a unanimous verdict is accurate and not misleading in the context of the full jury instruction. 10 Minnesota Practice, CRIMJIG 3.04 (1998). The district court gave the entire CRIMJIG 3.04 instruction when it formally instructed the jury. See State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962) (reviewing court considers jury instructions as a whole).