STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Fredrick Wayne Dunn,
Filed December 21, 1999
Hennepin County District Court
File No. 98046848
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and
Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Huong Nguyen, certified student attorney, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
Appellant Fredrick Wayne Dunn challenges his conviction for first-degree aggravated robbery. He contends that eyewitness identification was uncertain; the trial court erred in admitting evidence of bias of his alibi witness; and the evidence was insufficient to support his conviction because nothing physically linked him to the crime. We affirm.
A police detective familiar with Dunn viewed the surveillance tape and identified Dunn as the robber. Two weeks after the incident, the store clerk and another employee, who had spoken with the robber in the store just before the robbery, selected Dunn's photograph from a photographic display. The clerk was not positive in her identification; she felt that the robber's skin was darker than Dunn's. The other employee was positive in her identification of Dunn.
At Dunn's trial for first-degree and second-degree aggravated robbery, neither the clerk nor the other employee was able to make an in-court identification of Dunn. However, both testified to their photographic-display identifications. The other employee remained "confident" in her identification. The detective was "reasonably confident" in his identification from the surveillance tape.
Dunn asserted the defense of alibi. His fiancée testified that she and Dunn were together in another part of the city at the time of the robbery. Dunn's defense attorney then asked the fiancée about her reason for testifying:
Q. Why are you testifying here?
A. Because I know where [Dunn] was that evening of the crime.
Q. Are you fearful of him?
* * * *
Q Have you ever been fearful of him?
On cross-examination, the prosecutor asked Dunn's fiancée whether she feared Dunn today; whether she had feared him at any time in the past; and whether her fear of Dunn had ever colored any information she gave to the police. She answered "no" to each question. The prosecutor then asked whether Dunn had ever assaulted her. The prosecutor had a police report showing that in 1996 Dunn's fiancée told police that Dunn had hit her several times and that she feared for her safety.
Defense counsel objected to the prior-assault question. The court overruled the objection and the fiancée testified about a prior incident:
A. No. Actually we have had a fight, two fights actually, and we were just arguing and the neighbor called the police on us.
Q. So you have never been injured?
A. He's never beaten me, no.
Over defense objections, the trial court allowed the prosecutor to elicit from Dunn's fiancée an admission that she had told the police that she and Dunn had been fighting and that Dunn had hit her head and face. She explained that they had been wrestling playfully but Dunn had gotten too rough. She denied being fearful of him then or presently.
The jury found Dunn guilty of first-degree aggravated robbery.
The credibility of an eyewitness is for the jury to decide. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Any uncertainty in identification affects the weight of the evidence and is strictly a consideration for the jury. State v. Sutton, 272 Minn. 399, 402, 138 N.W.2d 46, 47-48 (1965). A photographic display need not exactly match the description of the suspect. See State v. Myers, 413 N.W.2d 122, 125 (Minn. App. 1987), aff'd as modified, 416 N.W.2d 736 (Minn. 1987). Positive eyewitness identification of the accused is sufficient to uphold a guilty verdict. See State v. Stark, 288 Minn. 286, 293, 179 N.W.2d 597, 602 (1970), cert. denied, 402 U.S. 930, 91 S. Ct. 1529 (1971). But identification need not be positive as long as a witness testifies that it is her "opinion, belief, impression or judgment that the defendant is the person" she saw commit the crime. State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969). Lack of in-court identification will not preclude a conviction where there is corroborating evidence, such as the testimony of other identification witnesses. State v. Griffin, 386 N.W.2d 792 (Minn. App. 1986), review denied (Minn. June 19, 1986).
The state presented competent, credible evidence from which a jury could reasonably conclude that Dunn was the convenience store robber. We find no reversible error.
For purposes of attacking a witness's credibility, it is proper to show that the witness has a bias or an interest in favor of a party. Minn. R. Evid. 616. Bias includes attitudes, feelings, or emotions of a witness that might affect a witness's testimony. State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995). Evidence of fear between a witness and a party may be proper impeachment to show the bias of a witness. State v. Waddell, 308 N.W.2d 303, 304 (Minn. 1981).
The trial court permitted the prosecutor to show the fiancée's bias by eliciting her prior inconsistent reports to the police about her fear of Dunn and the basis for that fear. A trial court's evidentiary rulings will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Because the defense raised the issue of bias and the witness's past and present fears of Dunn, the court properly exercised its discretion in allowing the prosecutor to attack the witness's credibility by inquiring precisely into the matters the defense voluntarily put into issue.
As we have said above, positive eyewitness identification is sufficient to sustain a guilty verdict. See Stark, 288 Minn. at 293, 179 N.W.2d at 602. Physical evidence linking a defendant to a crime is not required where an eyewitness testifies that the defendant committed the crime. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976).