This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-98-1968

State of Minnesota,
Respondent,

vs.

Arden John Archer,
Appellant.

Filed December 28, 1999
Affirmed as modified
Schumacher, Judge

Becker County District Court
File No. K1971235

Mike Hatch, Attorney General, John B. Galus, Kelly O'Neill Moller, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Joseph A. Evans, Becker County Attorney, 910 Lincoln Avenue, Detroit Lakes, MN 56502 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

A jury convicted appellant Arden John Archer of two counts of first-degree aggravated robbery and three counts of first-degree burglary. Archer challenges the admissibility of a tape recording used for voice identification, and contends the 60-year aggregate sentence was an abuse of discretion. We affirm as modified.

FACTS

Three break-ins occurred in the Detroit Lakes area in the early morning hours of October 4, 1997. A front door of the Dead Shot Bay Bar was kicked in and beer and liquor were stolen. Around 5 a.m., two intruders broke into the residence of Opal Rogstad, struck her on the head with a heavy statue causing permanent nerve damage, and stole $50-60. Shortly thereafter, two intruders broke into the residence of Rose Bekkerus, repeatedly hit her and bound her hands and legs with telephone cord, hit her son in the face with a flashlight, and stole $75.

The following evening, the police responded to a disturbance call reporting screams coming from the apartment of Archer's girlfriend, Rikki Creamer. Officer Eggebraaten found Creamer with her head bleeding and blood on her shirt. Creamer told Eggebraaten that she had fallen in the shower and was not sure what had happened. While Eggebraaten was taking Creamer's statement, Archer knocked on her window. When Eggebraaten confronted Archer, Archer came toward the officer, swearing. Eggebraaten arrested Archer and placed him in the back of Officer Glandar's squad car.

When Glandar transported Archer to jail, he activated a tape recorder in his squad car, which he left on until Archer was released, approximately 15 minutes later. While in the squad car, Archer yelled and swore profusely. The next morning, Officer Tolbert played the tape for Rogstad and Bekkerus. Rogstad could not say for sure whether the voice was that of her assailant, but Bekkerus was very sure that the voice was that of her assailant.

The state later charged Archer with three counts of first-degree burglary and two counts of first-degree aggravated robbery in connection with the three break-ins. Archer filed a pretrial motion to suppress the tape recording. The court denied Archer's motion, concluding the tape was not illegally seized evidence because probable cause existed for Archer's arrest and Archer would not suffer any prejudice.

At trial, Bekkerus testified that Archer's voice, as she heard it on the tape recording and in the courtroom, was the same as the voice of her assailant. Over Archer's objection, a portion of the tape was played for the jury in which Archer asked why he was being arrested, addressing Glander in insulting terms using expletives.

After the one-month trial at which Archer represented himself, the jury found him guilty on all counts. The trial court sentenced Archer as a dangerous and career offender, imposing the statutory maximum of 20 years for each conviction, the 3 burglary sentences to be served consecutively.

D E C I S I O N

1. Archer argues that the trial court erred in denying his pretrial motion to suppress the tape recording because there was no probable cause for arrest, the show-up was impermissibly suggestive, and the tape was so prejudicial that it should not have been heard by the jury. We note that even if the tape recording had been suppressed, Bekkerus's in-court identification of Archer would nonetheless be admissible. See United States v. Crews, 445 U.S. 463, 471-74, 100 S. Ct. 1244, 1250-51 (1980); State v. Doughty, 472 N.W.2d 299, 306-07 (Minn. 1991).

A. Whether the police had probable cause to arrest is a determination of constitutional rights, and this court independently reviews the facts to determine the reasonableness of police officer action. State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd 495 U.S. 91, 110 S. Ct. 1684 (1990). Minnesota courts

apply an objective standard for determining the lawfulness of an arrest * * * by taking into account the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed.

State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998). The test is whether officers in the particular circumstances, conditioned by their own observations and information and guided by the whole of their experience, reasonably could have believed that the person to be arrested had committed a crime. Olson, 436 N.W.2d at 94.

In this case, Eggebraaten believed that Archer had assaulted Creamer. Eggebraaten responded to a disturbance call reporting screams and found Creamer with her head bleeding. He did not believe her explanation that she had just fallen, which was reasonable given police experience with domestic assault. While Eggebraaten interviewed Creamer about her injuries, Archer appeared and started swearing. After observing Creamer's bleeding head and Archer's belligerent conduct, Eggebraaten had probable cause to believe that Archer had assaulted Creamer.

B. Archer further argues that the audio show-up violated his due process rights because the procedure was impermissibly suggestive. Archer did not raise this argument before the trial court and this court will generally not consider matters unless they were argued to and considered by the court below. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

Nevertheless, we apply a two-part test in determining whether pretrial eyewitness identification evidence must be suppressed for violation of due process rights. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). First, the court considers whether the procedure was unnecessarily suggestive, which turns on whether the defendant was unfairly singled out for identification. Id. Second, even if suggestive, identification evidence "may be admissible if the totality of the circumstances establishes that the evidence was reliable." Id.

The determinative question is whether the suggestive nature of the show-up made the identification unreliable. In evaluating the likelihood of irreparable misidentification, we consider the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the criminal; the level of certainty demonstrated by the witness at the photo display; and the length of time between the crime and the viewing of the photo display. Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988) (citing Neil v. Biggers, 409 U.S. 188, 196-200, 93 S. Ct. 375, 380-83 (1972)).

In this case, Bekkerus had ample time to listen to her assailant during the burglary. He said he had a gun and was going to tie her up and shoot her. He kept raving on and on, swearing every other word, continually talking. He kept asking "where's the safe?" When Bekkerus began crying, the intruder let up and stated that he was a no-good "druggy" and that he knew her sons John and Joey.

The length of time between the crime, the recording and the show-up was relatively short. The crime occurred early Saturday morning, the tape was recorded Saturday evening, and the show-up was Sunday morning. Bekkerus indicated that she was very certain at the show-up that the voice on the tape was her assailant. She was forewarned that the tape contained expletives. The presence of expletives on the tape, while perhaps suggestive, was consistent with the language used by the assailant during the crime. We conclude that, under the totality of the circumstances, the procedure, however suggestive, meets the test for reliability.

C. Archer also argues that it was clear, prejudicial error to allow the tape to be played for the jury, particularly because he was not allowed to inform the jury of its context. Courts may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. The trial court has broad discretion under rule 403, and we are reluctant to reverse a trial court on an issue of admissibility. Bixler v. State, 582 N.W.2d 252, 256 (Minn. 1998). In this case, the trial court ruled that Archer would not experience any prejudice if the court allowed the voice sample as evidence.

Unfair prejudice is "the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means." State v. Buggs, 581 N.W.2d 329, 336 (Minn. 1998) (citation and quotation omitted). Here, the jury heard Archer spew a string of obscenities directed at the police. But a determination that the trial court erred in admitting the taped statement would not require reversal so long as its admission was harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997). "If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt." Id. at 292 (citation and quotation omitted). In evaluating whether the verdict was "surely unattributable" to the error, this court reviews the record as a whole. Id.

In this case, the jury trial lasted one month, resulting in a transcript of almost 5000 pages. Archer represented himself and used vulgar language in the presence of the jury. Lonnie Poitra, another suspect, testified at length that he and Archer had committed the crimes. Bekkerus testified that Archer's voice, as she heard it in the courtroom, was that of her assailant. Given the record as a whole, we conclude that if it was error to play the tape for the jury, it was a harmless beyond a reasonable doubt.

2. This court will not reverse a trial court's decision to depart from sentencing guidelines absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Here, presumptive concurrent sentencing under the guidelines results in a total of 108 months (9 years). But under Minn. Stat. 609.152 (1996),[1] Archer's criminal history allows him to be sentenced as a career offender. The statute allows courts to "impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence." Id. Accordingly, the court sentenced Archer to the statutory maximum of 240 months (20 years) for each of the five charges.

Archer does not dispute that his criminal history allows him to be sentenced as a career offender under Minn. Stat. 609.152. Rather, Archer argues that three consecutive sentences were an abuse of discretion. The court ordered that the three burglary sentences run consecutively for a total of 720 months (60 years). Under the guidelines, consecutive sentences are permissive (given without departure) where the defendant has "[m]ultiple current felony convictions for crimes against persons." Minn. Sent. Guidelines II.F.

Archer argues that the bar burglary was not a crime against a person allowing permissive consecutive sentencing. To determine whether a burglary is an offense against a person, courts should look at the underlying conduct to determine whether a crime, as committed, was a crime against a person. State v. Notch, 446 N.W.2d 383, 385 (Minn. 1989). At the time of the bar burglary, the bar owners were in the basement living quarters and did not discover the break-in until the following morning. Accordingly, we conclude that the bar break-in was not a crime against a person permitting a consecutive sentence. We therefore modify the sentence to a 40-year total by having the bar burglary sentence run concurrently.

3. In his pro se supplemental brief, Archer raises additional arguments. After careful review of the record, we conclude that these arguments are without legal merit.

Affirmed as modified.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The 1998 legislature recodified this statute as Minn. Stat. 609.1095.