This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Shane James Johnson,


Filed February 17, 1998


Kalitowski, Judge

Olmsted County District Court

File No. K5950280

Hubert H. Humphrey III, Attorney General, Paul G. Zerby, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Third Floor, Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

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

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.



Appellant Shane James Johnson challenges his conviction for attempted first-degree murder contending: (1) he was denied his right to a fair trial; (2) the photo lineup display was impermissibly suggestive; (3) the district court erred in allowing "other crime" evidence; (4) the restitution order was improper; and (5) the district court erred in excluding expert witness testimony. We affirm.



The United States Constitution and the Minnesota Constitution establish that criminal defendants are entitled to a fair trial. State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992). This constitutional guarantee does not require a perfect trial, but rather one that is fair and does not prejudice the substantial rights of the accused. State v. Billington, 241 Minn. 418, 427, 63 N.W.2d 387, 392-93 (1954). The district court is in the best position to determine whether the alleged misconduct was unfair or prejudicial to the accused. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) ("Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.").

The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.


Johnson asserts he did not receive a fair trial because: (1) a police investigator falsely testified about the photo lineup; and (2) an incorrect photo display was admitted and considered by the jury. We disagree. While we do not condone the investigator's false statement, we cannot say Johnson's right to a fair trial was violated. The record demonstrates that the district court carefully considered this issue in light of the trial proceedings and determined that Johnson was not prejudiced by the photo display.

The display was incorrect because it contained three photos that were different from the photo display shown to the victim. The people in these three photos, however, are the same people whose pictures appeared in the original display. They are wearing similar clothes and are posed in a similar manner. The district court was in the best position to determine whether there was prejudice to Johnson, and given the record before us, we cannot say the district court abused its discretion in determining Johnson was not prejudiced by the incorrect photo display.


A reviewing court must "determine whether the identification procedures used were so impermissibly suggestive as to create a `very substantial likelihood of irreparable misidentification.'" State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979). In general, lineup participants should appear in a similar manner. State v. Carson, 320 N.W.2d 432, 436 (Minn. 1982). If the identification procedure is suggestive, the courts will look to the totality of the surrounding circumstances to determine whether the identification was reliable. State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996). Among the factors courts consider are:

the witness' opportunity to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the witness' level of certainty at the photo display; and the time between the crime and the confrontation.

Id. (citation omitted).

Johnson argues that because the victim had eyesight problems and because Johnson was the only person in the photo lineup display wearing orange, his photo was impermissibly suggestive. Further, Johnson contends that, given the circumstances of the crime, the victim could not have made a reliable identification of Johnson. We disagree. In Trimble, this court upheld a challenged photo lineup because

[t]he lineup photos were primarily of individuals faces; moreover orange clothing is not necessarily suggestive of jail clothing. The victim testified she based her identification on appellant's facial features, not clothing.

State v. Trimble, 371 N.W.2d 921, 924 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).

Similarly, the lineup photos here were also mug shots of faces, and the victim testified that he chose Johnson because of his facial characteristics, not because of his clothing. Further, the victim testified that he saw his attacker's face before the attack. He also testified at trial that he did not have trouble seeing the photo display and expert medical testimony was presented concerning his ability to see. Given these circumstances, we conclude the district court did not err in concluding Johnson's photo was not impermissibly suggestive, and there was not a very substantial likelihood of irreparable misidentification.


Other crime evidence is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Minn. R. Evid. 404(b). This evidence must be clear and convincing as to the participation of the accused, must be relevant and material to one of the above issues, and its prejudicial impact must be outweighed by its probative value. State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991). The district court, when determining relevance of the issues of identity, should examine the similarity of time, place, and modus operandi between the other crime and the charged crime. State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).

In weighing the probative value against the prejudicial effect, the trial court must consider the extent to which the Spreigl evidence is crucial to the state's case. This court has stated that Spreigl evidence is "admissible only if the trial court finds the direct or circumstantial evidence of defendant's identity is otherwise weak or inadequate, and that it is necessary to support the state's burden of proof."

State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991) (emphasis omitted) (quoting State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967)). The decision to admit or exclude Spreigl evidence is within the sound discretion of the district court. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992). A district court's admissibility ruling may not be disturbed absent a clear abuse of discretion. DeWald, 464 N.W.2d at 503.

Johnson does not dispute that his participation in the other crime was shown by clear and convincing evidence. However, he argues that the Spreigl evidence was not material or relevant and that the probative value of the evidence was outweighed by its prejudicial impact. We disagree.

There are several similarities between the Spreigl evidence and the charged crime including the type, brutal nature, and locations of the crimes. On the record before us, we cannot say the district court abused its discretion in concluding the Spreigl evidence was relevant and material to identity. Consistent with DeWald, the district court determined that the identity of the attacker was a crucial issue because of the victim's impaired vision and because there were no witnesses to the attack. Thus, the district court considered the appropriate factors in determining that the evidence was admissible, and we cannot say the court abused its discretion.


The district court "has wide discretion in ordering reasonable restitution." State v. Muller, 358 N.W.2d 72, 76 (Minn. App. 1984). One of the purposes of restitution is to compensate the victim. Minn. Stat. § 611A.04, subd. 1 (1996); State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994), review denied (Minn. June 15, 1994). The restitution order must have a factual basis in the record. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984). If a party fails to object to restitution at the plea hearing or at sentencing, the ability to appeal restitution is waived. State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).

Johnson contends the district court abused its discretion in ordering restitution because it did not require the victim to provide more information concerning his claimed expenses. We disagree. Because Johnson failed to object at his plea hearing or at sentencing, he has waived his right to challenge the restitution order. Further, Johnson's argument is without merit. We conclude the award is a reasonable estimate of the victim's travel and lodging expenses for medical treatment and court proceedings and the victim's loss of money and personal property during the attack.


Expert testimony is permitted if the subject of the testimony will assist the factfinder in understanding the evidence or facts. Minn. R. Evid. 702.

The basic requirement of Rule 702 is the helpfulness requirement. If the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury's ability to reach conclusions about that subject which is within their experience, then the testimony does not meet the helpfulness test.

State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980). The determination of whether to allow expert testimony is within the broad discretion of the district court and will not be reversed unless there is an abuse of that discretion. State v. Barlow, 541 N.W.2d 309, 313 (Minn. 1995).

Johnson, pro se, argues that the district court committed reversible error when it denied his motion to allow an expert witness to testify on the reliability of eyewitness memory and testimony. We disagree. The supreme court in Helterbridle and Barlow considered similar arguments and concluded that such testimony was properly excluded because it would not be helpful to the jury. Barlow, 541 N.W.2d at 313; Helterbridle, 301 N.W.2d at 547. Following Helterbridle and Barlow, the district court here properly excluded the testimony of Johnson's expert.