This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)


State of Minnesota,


Devin Mark Stoll,

Filed July 13, 1999
Lansing, Judge

Nicollet County District Court
File No. T8981928

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Christopher P. Rosengren, Assistant St. Peter City Attorney, Brandt Law Office, P. O. Box 57, St. Peter, MN 56082 (for respondent)

T. Oliver Skillings, Halverson Law Office, P. O. Box 3544, Mankato, MN 56002-3544 (for appellant)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N


A jury convicted Devin Stoll of fifth-degree assault. Stoll contends, for the first time on appeal, that a photo lineup was impermissibly suggestive and that his attorney's failure to object to the lineup constituted ineffective assistance of counsel. The record demonstrates that the attorney's decision was tactical, rather than ineffective; and a tactical choice cannot be recast as plain error. We affirm.


Nathan Biehn was assaulted outside his mobile home by a man who apparently believed Biehn had been driving a motorcycle that the man was pursuing in his car. Biehn first saw the motorcycle, later determined to be driven by Joseph Burkey, pass by his home. Several seconds later he saw a car pass, apparently in pursuit of the motorcycle. A few moments later the car reappeared in front of his home. A man Biehn later identified as Devin Stoll got out of the driver's side of the car and approached Biehn. Stoll asked Biehn if he had seen a motorcycle pass by, and Biehn replied that he had. Stoll then hit Biehn four times in the face, causing a bloody nose and a chipped tooth.

Biehn phoned the police, who arrived and took his statement. Approximately one week later, Biehn gave a taped statement in which he described his attacker as tall and thin with black hair; wearing a white baseball cap backwards, a white T-shirt, and blue jeans. Later, Biehn returned to the police station to view a photo lineup. From six pictures, Biehn identified a photograph of Stoll. Following a trial, a jury convicted Stoll of fifth-degree assault. On appeal Stoll argues that (1) the photo lineup was impermissibly suggestive, and (2) he was denied effective assistance of counsel by his attorney's failure to object to the lineup.



The scope of our appellate review is limited to issues argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); see also State v. Heinkel, 322 N.W.2d 322, 325-26 (Minn. 1982) (defendant not allowed to challenge validity of waiver of right to counsel during photo lineup when raised for first time on appeal). Stoll did not object in the district court to the admission of testimony about the photo lineup in which Biehn identified Stoll as his attacker. He has therefore waived his right to appeal this issue, unless one of the narrow exceptions to the general rule applies.

The narrow exceptions to nonreviewability are centered on the interest of justice and plain error. Constitutional issues, in rare circumstances, may be raised for the first time on appeal if required in the interest of justice and if constitutional arguments were implied in the lower court. See Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982). We may also extend review if the failure to object resulted in "plain error" affecting fundamental rights. Minn. R. Crim. P. 31.02. Review has not ordinarily been extended to the propriety of photo lineups unchallenged in the district court. See Heinkel, 322 N.W.2d at 325-26; Simberg v. State, 288 Minn. 175, 180-81, 179 N.W.2d 141, 145 (1970). In Simberg, the court observed that the decision not to challenge the photo lineup was a tactical decision made in the hope that the witnesses' identifications could be weakened by cross-examination. 288 Minn. at 180-81, 179 N.W.2d at 145.

The same rationale applies to Stoll's failure to object. Stoll's theory of defense was misidentification. A significant piece of his misidentification argument was drawn from cross-examination of Biehn and the officer who conducted the photo lineup. Stoll's attorney attempted to impeach Biehn's identification of Stoll not only in the photo lineup, but also Biehn's in-court identification by emphasizing a variance in hair color both between Biehn's initial description and the lineup photo and between the photo and Stoll's appearance at trial. Stoll's attorney focused on this testimony in his argument to the jury. The lineup evidence was integral to the defense.

Even if we extended review to the lineup procedure, Stoll's argument still fails. To prevail on a motion to suppress a photo-lineup identification, the defendant must show that 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) (citation omitted). And when identification procedures are unnecessarily suggestive, the identification may 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).

The photograph of Stoll, though not larger in size than the other five photographs, showed a larger view of Stoll's face than the faces in the other photographs. Stoll also alleges that the photo is old and portrays his hair as consistent with Biehn's initial description but inconsistent with Stoll's current hair color. Singling out a defendant by having only one "close-up" may be improper. Cf. Heinkel, 322 N.W.2d at 325 (lineup defective when defendant's photo was physically larger than other photos). But the indications of reliability in the identification are strong. Biehn had ample opportunity to observe his attacker and provided a detailed description of his appearance. Biehn identified Stoll's photograph immediately and without hesitation and later identified Stoll at trial. Witness Joseph Burkey, who was the motorcycle driver, offered corroborative testimony about Stoll's appearance and his position as driver of the car before the attack. The totality of the circumstances indicates the lineup was not so suggestive as to cause a substantial likelihood of misidentification.


A defense counsel's assistance is ineffective if it "f[alls] below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quoting Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987)); see Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984) (establishing test).

Counsel must have the discretion and flexibility to devise a trial strategy that best serves the client. See State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986); see also State v. Gobely, 366 N.W.2d 600, 603 (Minn. 1985) (stating that a disagreement over trial strategy does not constitute ineffective assistance of counsel); State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (same); Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 616 (1972) (stating that trial tactics are not to be confused with competence). The record demonstrates that valid tactical reasons could support Stoll's attorney's decision not to object to the photo lineup. See Simberg, 288 Minn. at 180-81, 179 N.W.2d at 145. Stoll's representation did not fall below an objective standard of reasonableness.

We further note that excluding the lineup identification testimony would likely not have changed the outcome of this case. Biehn, Officer Mork, and witness Burkey provided independent descriptions that accurately described Stoll; each of them positively identified Stoll in the courtroom during the trial. Regardless of the admissibility of the photo lineup, a subsequent in-court identification is permissible if the in-court identification has "an adequate independent origin so as to negate or reduce the likelihood of misidentification." Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988) (quoting Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 380-81 (1972)). The in-court identifications were supported by Biehn's and Burkey's detailed descriptions of Stoll's appearance on the night of the assault and were independent of the lineup identification.