This opinion will be unpublished and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


State of Minnesota,


Kirk William Schaefer,

Filed September 14, 1999
Randall, Judge

St. Louis County District Court
File No. K8-98-300297

Mike Hatch, Attorney General, Timothy C. Rank, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN, 55103; and

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN, 55802 (for respondent)

John M. Stuart, Minnesota State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant argues that the district court committed reversible error when it admitted his prior conviction for impeachment purposes, and also when it refused to give a specific jury instruction regarding the reliability of eyewitness testimony. In his supplemental pro se brief, appellant argues that the photograph used in the photographic lineup led to misidentification, the district court erred when it limited the scope of cross-examination of a witness, and there was a lack of corroborating evidence to support the limited observation of the eyewitness. We affirm.


On March 12, 1998, two men robbed Geary's Grocery, a convenience store in Hibbing. The first man, wearing a ski mask rolled above his forehead, approached the counter and purchased a lottery ticket from the cashier, Teresa Lindquist. After he purchased the ticket, he stood at the counter for several moments, while Lindquist commented on the redness of his face due to the cold weather. As the first man walked away, a second man, who was wearing a ski mask and a bandana that covered his face, pointed a knife at Lindquist and instructed her to take the cash out of the till. Lindquist gave the second man the money and both men then left the store, the first man stopping and returning for a $50 bill that had dropped to the floor.

After the robbery, Lindquist immediately called 911. Lindquist gave the police a detailed description of the events and the man whom she later identified as appellant Kirk William Schaefer, stating that he was about 5'11", with brown hair, between 20 and 30 years-old, and appeared not to have shaved for a few days.

On March 17, 1998, Schaefer's roommate, Shawn Keesling, was arrested for a different robbery in Virginia, Minnesota. During questioning, Keesling told police that on the night of March 12, 1998, Schaefer told him that he and another man had committed a robbery in Hibbing. He further told police that on the same evening, Schaefer, Schaefer's girlfriend, Keesling, and Keesling's wife traveled to Blackbear Casino near Cloquet, where Schaefer provided the group with money to gamble and rent a room.

Following the robbery, Hibbing police officers met with Lindquist and showed her two six-person photographic lineups to see if she could identify either of the men who robbed the store; she was unable to identify anyone. Schaefer was not included in either of the lineups. Twelve days after the robbery, Lindquist viewed a third six-person photographic lineup (with Schaefer in it) and immediately identified Schaefer as the man who bought the lottery ticket.

Schaefer was charged with aggravated robbery in the first degree. In his defense, he argued that (1) Keesling told police that Schaefer robbed the store in order to shift the blame away from himself and (2) Lindquist misidentified him because the photograph used in the lineup was a year old and depicted him with long hair, matching a description Lindquist made following the robbery. In support of these arguments, Schaefer offered alibi evidence that he and his girlfriend, Krista White, were at Keesling's apartment at the time of the robbery, and testimony of a fellow jail inmate of Keesling's who claimed that Keesling confessed to robbing the store.

The state impeached the credibility of both defense witnesses. First, the state showed that White had previously told police that she and Schaefer went to a movie on the night of the robbery. The state then suggested that White changed her story without informing police when she discovered that Schaefer told a different story. Second, the state showed that the jail inmate initially said he heard Keesling's confession "one month before the crime occurred." Further, the state pointed out that of 30 photographs the police showed Lindquist, she identified only Schaefer, despite the fact that Keesling's photo was included.

Based on this evidence, a jury found Schaefer guilty as charged and he was sentenced to 48 months in prison.


Schaefer argues the district court erred in admitting his prior conviction for impeachment purposes. Under Minn. R. Evid 609(a), a prior conviction may be admitted to attack the credibility of a witness only if the crime (1) was punishable by imprisonment in excess of one year and the probative value outweighs the prejudice to the defendant, or (2) involved dishonesty or a false statement, regardless of the punishment. Admitting Schaefer's prior conviction of gross-misdemeanor burglary, the district court relied on Schmitz v. Stransky, 454 N.W.2d 455, 460 (Minn. App. 1990), review denied (Minn. June 25, 1990), to rule that burglary is a crime involving dishonesty or false statement. Both parties concede, however, that Schmitz was effectively overruled in State v. Ross, 491 N.W.2d 658, 660 (Minn. 1992), and the district court erred in admitting the prior conviction. The issue is whether the court's error constitutes reversible error, entitling Schaefer to a new trial.

Where a jury may have decided in favor of the defendant had the evidence been excluded, the error is prejudicial. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998); see also State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (standard for determining whether district court erred in admitting prior conviction is whether there is reasonable possibility that jury verdict might have been more favorable to defendant if evidence had not been admitted). An error in admitting evidence of a prior conviction has been deemed harmless where (1) the evidence of appellant's guilt is strong, (2) appellant's evidence is weak and lacks credibility, (3) the prosecutor did not rely on the prior conviction in closing argument, and (4) the court gave a cautionary instruction. Bolte, 530 N.W.2d at 198-99.

Schaefer argues that absent the evidence of his prior conviction, the jury may have found differently given the other evidence produced at trial. He argues that the case depended on whom the jury believed and that, in light of the unreliability of the state's key witness, Lindquist, due to her limited opportunity to view the man she claims to have been Schaefer, admitting his prior conviction tainted the jury's assessment of his credibility and determined the outcome of the trial.

While we understand Schaefer's argument that when credibility is an issue, improper Spreigl evidence is a heightened concern, the prior conviction here did not change the effect of Lindquist's testimony and its strong evidence of Schaefer's guilt. See id. at 198 (listing evidence linking defendant to crime as important factor in ruling admission of prior conviction harmless). Although Schaefer argues that Lindquist's opportunity to view the first man was limited, the record indicates otherwise. Lindquist did not merely catch a fleeting glimpse of the man, but sold him a lottery ticket and conversed with him, asking him, given the redness of his face, if it was cold outside, to which he responded that it was. In addition to this initial contact, after exiting the store, the man returned and retrieved a $50 bill that he noticed had fallen to the floor. Lindquist's recollection that the man was wearing a jean jacket that was wet from the rain and her immediate identification of Schaefer in one of several photographic lineups following the robbery show that she got a good look at the suspect. Photographs from the casino on the night of the robbery depicting Schaefer as not having shaved in a few days lend further support to Lindquist's identification testimony. Finally, Schaefer's confession to Keesling supports Lindquist's testimony and is additional evidence of Schaefer's guilt.

Second, Schaefer's evidence is weak and contradictory. See id. (citing defense's weak and incredible evidence as important factor in ruling admission of prior conviction harmless). Schaefer's alibi witness, Krista White, first claimed that she and Schaefer had attended a movie on the night of the robbery. At the trial, however, she changed her story, stating that both she and Schaefer were at Keesling's apartment at the time of the robbery. White did not contact the police in the five months that passed between her first alibi statement and her testimony at trial, but merely explained that she had a different memory at trial. This contradiction affected the credibility of her alibi testimony.

Third, the defense only briefly raised the prior conviction during the direct examination of Schaefer. The defense apparently raised the conviction in order to describe and contrast Schaefer's appearance in the photo taken in the prior arrest to his appearance at the time of the robbery, thereby attempting to discredit Lindquist's identification. The state never mentioned the prior conviction during its cross-examination of Schaefer. Moreover, the prosecutor did not heavily rely on Schaefer's prior conviction during his closing statement. See id. (listing prosecution's lack of reliance on prior conviction as significant in deciding admission of prior conviction harmless error). The prosecutor simply stated what the conviction was for and that Schaefer is one among many people involved in the proceedings with prior criminal convictions.

Finally, the district court gave a cautionary instruction regarding the defendant's prior conviction. See id. at 198-99 (citing district court's cautionary instruction as important factor in deciding admission of prior conviction harmless).

We are satisfied that the district court's error did not reasonably impact the jury's decision, and we conclude the district court's error does not mandate a new trial in the interests of justice. We note, however, that we continue to be amazed by the contradictory credibility prosecutors attach to their arguments when, on the one hand, they convince a trial judge to allow in Spreigl evidence, claiming that their case is weak on identity, and then when the Spreigl evidence is ruled improper, or there are other claimed errors at trial, the prosecution argues with a straight face that all errors are "harmless because we have such a strong case!"

Schaefer next argues that the district court erred when it refused to instruct the jury regarding the reliability of Lindquist's eyewitness identification pursuant to 10 Minnesota Practice, CRIMJIG 3.19 (1990). Determining whether to give a jury instruction is within the discretion of the district court, and its decision will be reversed only if the district court abused its discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). Denying Schaefer's request, the district court relied on State v. Bishop, 289 Minn. 188, 195, 183 N.W.2d 536, 540 (1971), ruling that such an instruction would single out the credibility of Lindquist, and thus would be improper.

Schaefer argues that the cross-examination of Lindquist and his alibi witness put the reliability of Lindquist's eyewitness identification testimony in issue, therefore the court was not required to follow Bishop and should have considered giving the 3.19 instruction. See id. (recognizing district court has discretion in determining whether to give jury instructions, but where reliability of eyewitness identification is in doubt, court should consider requests for additional instructions); but cf. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977) (holding requested instruction not necessary where substance of request is in court's charge).

The district court found that Lindquist's testimony did not lack reliability. Lindquist immediately identified Schaefer as one of the robbers from a photo lineup and did not deviate from that identification. The defense cross-examined Lindquist regarding her identification testimony, dedicated almost half of its closing argument to the deficiencies of her testimony, and the court gave a general instruction about the credibility of witness testimony. See Bishop, 289 Minn. at 196, 183 N.W.2d at 541 (holding where defense had opportunity to test credibility of witnesses, argued weight and credibility issues in summation, and court's general instruction referenced weight and credibility of witness testimony, no error in refusing to give additional instruction). Thus, we conclude that on these facts the district court did not abuse its discretion when it denied Schaefer's requested instruction. The requested instruction could have been given, and on these facts would have been a reasonable and proper instruction. We simply state that the instructions given gave Schaefer a chance to argue his theory of the case, and it was not error to give the additional instruction.

Schaefer raises three additional issues in his pro se brief. First, he challenges the validity of the photographic lineup from which Lindquist identified him. In determining whether a photographic display was improper, the reviewing court must establish whether the display used "'was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Id. at 194, 183 N.W.2d at 540 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). While prior to trial Lindquist had described the man she identified as Schaefer as having hair hanging out of his hat, at trial she clarified that she was not implying that his hair was long, merely that she could see it because his hat was rolled up. We are satisfied that Lindquist did not rely solely on the fact that Schaefer had long hair in the photo lineup in identifying him, and the lineup was not so suggestive as to lead to irreparable misidentification.

Schaefer also argues that the district court erred in prohibiting questions during cross-examination attempting to establish that Schaefer had a prior relationship with Lindquist's sister and that Lindquist and her sister set up the robbery, blaming Schaefer in order to pay off a debt. The scope of cross-examination is largely left to the discretion of the district court, and absent an abuse of discretion the district court's ruling must be upheld. State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998). The scope of cross-examination is limited to the subject matter of direct examination and to matters affecting the witness' credibility. Minn. R. Evid. 611(b). The facts surrounding this issue are analogous to those in Parker. There the court held that the district court did not err in prohibiting appellant from attempting to implicate a witness on cross-examination given the ability of appellant to call the witness himself and the broad discretion accorded to the district court. Parker, 585 N.W.2d at 406. Because Schaefer had the ability to call Lindquist as a defense witness if he wanted to implicate her in the robbery, and given the broad discretion accorded a district court, we are satisfied that the district court did not commit reversible error in limiting the scope of cross-examination.

Finally, Schaefer challenges the jury's decision in light of the lack of corroborating evidence. Absent corroboration, an eye witness identification made on fleeting or limited observation is unreliable and should not be the basis for conviction. State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979). Lindquist, however, did not merely have a fleeting glimpse of the man she identified as Schaefer. Rather she sold him a lottery ticket, and conversed with him at that time, and later when he returned to the store for the $50 bill. Further, Schaefer's confession to Keesling corroborates Lindquist's identification testimony and lends support to the jury's verdict.