This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-948

 

 

State of Minnesota,

Respondent,

 

vs.

 

Maxim Guy Chance,

Appellant.

 

 

Filed July 19, 2005

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 03091607

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Judd Gushwa, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN 55402 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of gross-misdemeanor fifth-degree assault, arguing that the show-up procedure was impermissibly suggestive and caused a substantial likelihood of misidentification by the witness.  We agree that the show-up procedure was unnecessarily suggestive; but because, considering the totality of the circumstances, the identification procedure did not cause a substantial likelihood of irreparable misidentification, we affirm.

FACTS

            On December 26, 2003, at about 2:00 p.m., Karl Petersen went to a bus stop on the corner of 10th Avenue and Lake Street in south Minneapolis to meet his fiancée.  While he was waiting, two men, who appeared to Petersen to be “either drunk or high,” got off a bus.  He later identified one of the men as appellant Maxim Guy Chance.  Petersen said that he tried to avoid interacting with the men, but that “apparently they decided that they wanted to harass [him]” and that one of the men said something about “knocking somebody out.”  Petersen stepped away from the men, but they followed him, behaving “[o]bnoxious[ly]” and making Petersen feel that he was “personally at risk.”  When Petersen again tried to walk away from the men, one of them kicked him in the back.  According to Petersen, the sensitivity of his back is heightened because he has had “10 major surgeries to [his] spinal cord” and has multiple screws, rods, and other devices in his back. 

After he was kicked, Petersen turned around and saw the two men standing shoulder to shoulder.  According to Petersen, appellant then said that he would kick Petersen again.  Petersen then told the men to leave him alone, but “felt that th[e] whole thing was going to escalate again, so [he] went inside [a nearby] bank and called the police.”  While on the phone with the police dispatcher, he saw the men get on “the [e]astbound 21 bus.” 

Minneapolis police officers Eric Shogren and David Clifford were driving on Lake Street when they received a call from the dispatcher saying that the suspects in an assault had boarded bus 2391.  According to Officer Shogren, “The first suspect was described as a black male, 25 to 35, wearing glasses, a black coat, and blue jeans.  The second suspect was described as a light-skinned black male, 45 to 50, wearing a light coat and blue jeans.”  When the officers received the call, “bus number 2391[] was directly in front of [them].”  They then pulled the bus over “about eight blocks” from the spot of the assault and “[a] mere matter of minutes” after it occurred. 

After boarding the bus, the officers approached two men who fit the description they had been given.[1]  While standing next to the men, the officers “asked the dispatcher to give [them] the description of the suspects once again.”  That description matched the men.  The officers then escorted the men, who appeared to be “quite drunk,” off the bus and back to the squad car.  Because the men were intoxicated, “[v]ery belligerent,” and refused to cooperate with a pat search, the officers handcuffed them before placing them in the back of the squad car.  The officers then drove the men back to the spot of the assault for a “show-up,”[2] arriving 15 to 20 minutes after Petersen was kicked in the back. 

Upon arrival, Officer Shogren remained with the suspects, while Officer Clifford went to locate Petersen.  According to Officer Shogren, Officer Clifford opened the rear door of the squad car and Petersen looked inside and identified the suspects as his assailants.  Officer Clifford testified that Petersen did not hesitate in identifying the men.  Rather, “it was immediate.  [Petersen] immediately knew that these two were the ones [who] were involved with assaulting him at the bus stop.”  According to Officer Clifford, Petersen then identified appellant as “the one [who] actually kicked him.” 

At the Rasmussen hearing, Peterson indicated that the officers never told him that appellant was the person who had kicked him.  But at trial, Petersen testified that when the officers brought the suspects back for the show-up, they implied that the suspects were the men who had assaulted him.

Q:        Now, were you told that the people [who] were being brought back for you to look at were people that had just been pulled off the bus?

A:        No, they never said that.

Q:        Officers never said that?

A:        No.

Q:        What did they say?

A:        They said that they found the people.  You know, I assumed it was on the bus, all right?  They brought them back in the squad handcuffed.

Q:        So they told you they found the people who did it—

A:        Yeah.

Q:        —and they brought them back so you could look at them?

A:        That’s right.  So I could I.D. them or not.

Q:        But in your mind, you figured that they had the people that did it because that’s what they told you, right?

 

A:        Yeah. 

 

Petersen then stated that he identified the men in the back of the squad car as his assailants.  After Petersen identified the men, Officer Shogren asked him if he wanted to make a citizen’s arrest.  Petersen agreed, arresting appellant for assault and the other man for disorderly conduct. 

Appellant was subsequently charged with gross-misdemeanor fifth-degree assault in violation of Minn. Stat. § 609.224, subds. 1(2), 2(b) (2002).  Appellant moved the district court to suppress Petersen’s identification of appellant, arguing that the show-up procedure was impermissibly suggestive.  The district court concluded that the procedure was not impermissibly suggestive and denied appellant’s motion.  After a jury trial, appellant was found guilty and sentenced to 365 days in jail with 155 days stayed.  This appeal follows.

D E C I S I O N

Appellant challenges the district court’s denial of his motion to suppress Petersen’s identification, arguing that the show-up procedure used by the police was so impermissibly suggestive that it created a very substantial likelihood of misidentification.  We review pretrial motions to suppress evidence by independently reviewing the facts to determine whether the district court erred as a matter of law in its decision.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Whether identification evidence should be admitted depends on the reliability of the evidence.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). 

We use a two-part test to determine whether the evidence is admissible.  Id.  First, we must determine whether the identification procedure was “unnecessarily suggestive.”  Id. (quotation omitted).  “Included in that inquiry is whether the defendant was unfairly singled out for identification.”  Id. (quotation omitted).  Our ultimate concern is whether the methods used by the police influenced the identification of the defendant by the witness.  Id.

Second, if we conclude that the identification procedure was unnecessarily suggestive, we must then determine whether the circumstances caused “a very substantial likelihood of irreparable misidentification.”  Id. (quotation omitted).  “If the totality of the circumstances shows the witness’ identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure.”  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).

We first consider whether the show-up procedure was unnecessarily suggestive.  After handcuffing appellant and his companion, the police officers placed the men in the back of the squad car and returned to the site of the assault for a show-up.  Petersen testified that before he made the identification, the officers told him that “they found the people” who assaulted him.  Moreover, he confirmed that he “figured that [the police] had the people that did it because that’s what they told [him].” 

In State v. Anderson, 657 N.W.2d 846 (Minn. App. 2002), this court considered a similar situation.  There, we concluded that the identification procedure was unnecessarily suggestive, where the police singled out the suspect based on the witness’s description, returned him to the scene in a squad car, presented him in handcuffs and flanked by a uniformed officer, and told the witness that “they thought they had a person in custody who matched the witness’s description.”  Id. at 851.

As in Anderson, the suspects here were singled out based on an eyewitness’s description, were accompanied by uniformed officers, and presented in handcuffs.  But the officer’s statement was even more suggestive—rather than indicating to the witness that the police “thought” they had a suspect who “matched” the description, the officer told the witness that they had “found the people” who assaulted him.  Unlike the former statement, which retains some level of ambiguity, the latter statement broaches no uncertainty about the identity of the suspects.  Accordingly, the show-up procedure was unnecessarily suggestive.

We now turn to the question of whether, considering the totality of the circumstances, the identification procedure caused “a very substantial likelihood of irreparable misidentification.”  Taylor, 594 N.W.2d at 161 (quotation omitted).  In considering the totality of the circumstances, we evaluate five factors:

1.         The opportunity of the witness to view the criminal at the time of the crime;

2.        The witness’[s] degree of attention;

3.        The accuracy of the witness’[s] prior description of the criminal;

4.        The level of certainty demonstrated by the witness . . .;

5.        The time between the crime and the confrontation.

 

Ostrem, 535 N.W.2d at 921; see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977) (setting forth factors).  A witness’s identification is considered reliable despite unnecessarily suggestive procedure if the totality of the circumstances establishes an adequate independent origin for the identification.  Anderson, 657 N.W.2d at 851-52.

            Here, Petersen had substantial opportunity to observe appellant and his companion.  The interaction occurred in the early afternoon and, according to Petersen, lasted for “about five minutes.”  Petersen indicated that no other people were in the area at the time.  Petersen also paid attention to appellant.  In his brief, appellant admits that “Peters[e]n’s attention was drawn to the men [who assaulted him] because they chose to harass him.”  Moreover, Petersen testified that he “kept watching them” in the interim between the time he first saw the men and the time he was kicked in the back. 

Petersen accurately described the men, noting their race, the clothing they were wearing, and the fact that his assailant wore glasses.  He also told the dispatcher that the men had boarded the eastbound 21 bus.  When the officers stopped the bus, they approached appellant and his companion because they fit Petersen’s description.  The officers then confirmed the description of the suspects with the dispatcher. 

The time between the assault and the confrontation was only 15 or 20 minutes.  From the confrontation on, Petersen has consistently expressed certainty that appellant was the man who kicked him.  As the district court noted when it denied appellant’s suppression motion, Peterson was “very emphatic that [appellant was] the same [person] that [Peterson] saw at the scene before he was assaulted, [was] emphatic that it was [appellant] that assaulted him, and [was] equally emphatic that [appellant] was the defendant returned to the scene by the police officer.” 

All five factors support Petersen’s identification of appellant.  The totality of the circumstances establishes an adequate independent origin for the identification despite the unnecessarily suggestive procedures employed by the officers; thus, the identification may be considered to be reliable.  Ostrem, 535 N.W.2d at 921; Anderson, 657 N.W.2d at 851-52.  On this record, the district court did not err by denying appellant’s suppression motion.

            Finally, appellant urges this court to discount Petersen’s certainty in identifying appellant as his assailant, arguing that “[t]here is no statistical relation between accuracy of an identification and the witness’s degree of certainty.”  In support of this contention, appellant cites several social psychological studies and notes that courts in other jurisdictions have expressed concern regarding the relationship between certainty and accuracy.  See, e.g., Commonwealth v. Santoli, 680 N.E.2d 1116, 1121 (Mass. 1997) (noting that “there is significant doubt about whether there is any correlation between a witness’s confidence in her identification and the accuracy of her recollection”).

            The use of the five factors enunciated in Ostrem—including the witness’s level of certainty—is well established.  See, e.g., In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004) (considering totality of circumstances in light of five factors set forth in Ostrem); Anderson, 657 N.W.2d at 851-52 (same).  Although it is true that recent research casts substantial doubt over the relationship between witness confidence and witness accuracy, any change in established precedent must be left to the supreme court.  See St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989) (noting that abolishing established judicial precedent is the prerogative of the supreme court).  Further, this factor is only one of five outlined in Ostrem.  Accordingly, we decline to adopt a rule contradicting such precedent.

            Affirmed.