This opinion will be unpublished and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

A05-68

 

 

State of Minnesota,

Appellant,

 

vs.

 

Philander Dermont Jenkins,

Respondent.

 

 

Filed August 16, 2005

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 03058428

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for appellant)

 

Jill Clark, 2005 Aquila Avenue North, Golden Valley, MN 55427; and

 

Jill M. Waite, 2856 Humboldt Avenue South, Suite 3, Minneapolis, MN 55408 (for respondent)

 

 

            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 State of Minnesota challenges the district court’s pretrial orders, arguing that it erred by (1) dismissing a first-degree-burglary charge for lack of probable cause, (2) suppressing a handgun as irrelevant, and (3) ordering the preparation of a new lineup for the purpose of an in-court identification of respondent by the state’s witnesses.  Because we find critical impact for each issue and conclude that the district court erred on all three of the challenged rulings, we reverse and remand.  Respondent cross-appeals on three additional grounds.  Because we conclude that two of his arguments are beyond the scope of this court’s review, we decline to address them; but we affirm the district court’s decision as to respondent’s argument concerning violation of his Sixth Amendment right to counsel.

FACTS

By amended criminal complaint filed on September 13, 2004, the state charged respondent Philander Jenkins with one count of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(b) (2002); one count of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2002); two counts of second-degree assault in violation of Minn. Stat. § 609.222, subds. 1, 2 (2002); and one count of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b), 2 (2002).  The state also asserted a sixth count against respondent for solicitation of a minor to commit a crime in violation of Minn. Stat. § 609.494, subd. 1 (2002).

On the evening of August 14, 2003, police officers arrived at the scene of a shooting in north Minneapolis.  In its complaint, the state alleged the following:

[Two] witnesses stated that while in the house, they heard a “crash” and saw two adult males, later identified as [respondent and his co-defendant,] break into the house and run into the living room and they had weapons.  The witnesses stated that as the two [d]efendants were entering the living room, the victim immediately ran out of the room and out the back.  The witnesses saw the [d]efendants chase after him.  Then the witnesses heard a shot.  The witnesses said they found the victim in the back bleeding and the [d]efendants and another male . . . get into a blue Mercedes with a broken windshield.  The three fled in the vehicle.  Descriptions of the vehicle and license plate number together with the person descriptions were aired.

 

A third witness told police that he observed respondent “retrieve a black handgun from the trunk of the car.”  After unsuccessfully attempting to stop respondent from pursuing the would-be victim, this witness saw respondent “break into the house.”  Soon after, the witness heard a gun shot. The complaint reports the victim’s recollection of the evening:

The victim stated that on August 14th, he was at home in his living room with [the three witnesses].  He stated that he heard someone breaking into his house.  The victim stated that he didn’t stay to see who it was; he just started running to the back of the house. 

 

The victim was shot in the chest, and the shooter then ran away.

            Just before midnight, a police officer stopped the stolen blue Mercedes.  Inside the vehicle were three individuals later identified as respondent, his co-defendant, and a juvenile who would later be charged with the attempted murder.  Several other officers arrived on the scene.  Sergeant Michael Young ordered that the vehicle be impounded but not searched.  Young explained why he did not order the search of the vehicle that evening:

The vehicle was used in a previous crime.  There was a high likelihood that evidence from that crime may be contained within the vehicle.  Because we were aware of the previous crime and the likelihood there may be evidence in there, it was my decision at that scene to just wait for the warrant.  By policy, we can search any vehicle that we impound. 

 

He also testified that he believed there might have been evidence in the vehicle, such as a gun.  Sgt. Young ordered Officer Adam Grobove to follow the vehicle to a forensic garage at the city’s impound lot.[1]  Grobove testified that the vehicle was then locked inside the garage and that the keys were delivered to the impound lot’s security office. 

            Later that morning, on Friday, August 15, 2003, Sergeant Dennis Hamilton began an internal investigation by reviewing various reports and interviewing the three suspects and the victim.  The following Monday, Hamilton applied for a warrant to search the stolen Mercedes “for the guns used at the scene,” which the issuing judge granted.[2]  Sgt. Hamilton executed the search warrant by himself later that day at the impound lot.  During the search, Hamilton found “one semiautomatic handgun and a couple of bullets” and explained that “[t]he gun was located in the trunk of the vehicle . . . in [the] wheel[-]well area.”[3]  Hamilton did not inventory the other items in the car, including two bags full of clothes, various papers, a wallet, and other “miscellaneous items,” because he determined that they were not relevant to the case.[4]  Nor did Hamilton videotape the search, although he acknowledged that he had the ability to do so.  Gary Turner, the owner of the stolen Mercedes, testified that once his car was returned some days later, the police gave him permission to dispose of the remaining items in his car.

After inventorying the items and placing the bullets and gun in a paper bag, Sgt. Hamilton immediately transferred them to the property-inventory room at city hall.  At the property-inventory room, Hamilton testified that he filled out a form indicating that the gun was loaded.  Gary Turner explained that he noticed two sheets of paper in the back seat of the car as he was cleaning out his recently returned Mercedes, apparently left behind by Hamilton.  Turner testified that a gun was not listed on either inventory sheet:

Q:        Okay.  And then Officer Hamilton left you some sheets in the back, and do you mean they had like a list on them or—

 

A:        It just had something written, barely legible. . . .  It look[ed] like bullet casings of—bullet casing or shells or something.  It was kind of not too legible, but it looked like, you know, shells.  And he did mention that he did find some bullet casings or shells from a gun in the vehicle. 

 

                                    . . . .

 

            Q:        —[I]n addition to the shells, was anything else listed? 

 

            A:        No, not that I can think of.

 

                                    . . . .

 

Q:        . . .  Would you remember if a gun had been listed on that sheet?

 

[State objected.  Overruled by the court].

 

A:        No, definitely there was no gun listed.  There was only the two items of bullet[-]shell casings . . . .

 

Because the gun was loaded, Sgt. Hamilton testified that he placed it in a secured locker adjacent to the property-inventory room.  The supervisor of the property-and-evidence unit of the Minneapolis Police Department testified that once a locker has been secured with a padlock, not even a police officer, only property-and-evidence-unit staff, have access to the lockers.

Throughout the omnibus hearing, respondent attempted to establish that the gun had been planted by the police, arguing that “the reason [the car] wasn’t searched was to give an opportunity for someone to put evidence into the vehicle if it proved later that that became necessary.”  Respondent also contended that the police’s motive for planting the gun was because there had been allegations that respondent had kicked a fellow officer in the head until his jaw was broken.  Respondent’s counsel also explained that, “there’s a great deal of question of who found the gun, where they found it, and why wasn’t it found earlier, why wasn’t it found the night of the search.”  Among other motions, respondent moved to (1) dismiss the burglary charge for lack of probable cause, (2) suppress the handgun as evidence, and (3) alter certain procedures regarding in-court identification testimony.

First, at the conclusion of the omnibus hearing, respondent argued that the state “fail[ed] to allege anywhere on the face of the [c]omplaint that someone in lawful authority stated there was . . . no consent to enter as deemed by the person with lawful authority in the premises.”  The state argued that respondent and his co-defendant did not have consent to enter the premises because they went “in with guns and [broke] in.” The state maintained that there was “sufficient information to draw the inference[] . . . that [respondent] had no consent” to enter the premises.

The district court dismissed the first-degree-burglary charge because the complaint “[did] not contain sufficient probable cause on the element from the owner that there was no consent . . . .”[5]  When the state offered to supplement the complaint with the recently acquired statement of M.N. (the premises’ tenant), the district court explained, “[t]he [c]omplaint doesn’t even mention . . . the person who owns the place . . . [and] I don’t believe she ever said these people couldn’t be in her house, and it appears that they had been in her house before.”  The state replied that it had “been searching for [M.N.] for months” and had recently located her, which is why it was unable to include her in the amended complaint.  The court responded that the state failed to call M.N. as a witness.  But the state explained that it did not need to bring a witness because “[t]his wasn’t charted as a [probable-cause] hearing.”  The court did not permit the state to amend the complaint and rejected a later request for admission of M.N.’s statement as “total hearsay” because it would convert the prosecutors in the case to “witnesses.”  But the court did find probable cause on the remaining counts of the complaint.

            Second, respondent moved to suppress the handgun found in the vehicle searched by Sgt. Hamilton at the impound lot.  The district court asserted that Sgt. Hamilton did not follow proper procedure in conducting the search and that his testimony was inconsistent.  The court stated that “the absolute failure in this case for the [police department] to follow their own policy, it’s not defendable.”  The court continued:

[I]t’s very clear that Sergeant Hamilton has no memory of this.  His description of the search of the vehicle, the trunk, his description of what he did at the property room in the lockers makes no sense with reality.  His description of locks with keys, and the description of having to undo something to get to the spare tire, he has no documentation or anything.  He went alone to do this search, even though it’s at the forensic garage when he could have ordered that they conduct the search, which is what the policy says. 

 

. . . .

 

. . . [T]his gun [was] found in a car that does not belong to any of [the co-defendants].  It’s been supposedly stolen for a number of days and handled by a number of people.  The gun is inside that wheel—the spare tire compartment, and this gun is not identified as any gun used by [respondent], alleged to have been used by [respondent] at the time of the incident.

 

The court also made a negative credibility finding, largely against Sgt. Hamilton, stating, “the testimony I’ve heard in regards to that gun makes no sense.  And I’m not saying anyone’s lying.  I’m saying people don’t remember what happened because they didn’t do it right, and they’ve tried to recreate something and it doesn’t work because it’s inconsistent with each other.”  The court suppressed the handgun as “irrelevant” to the state’s case. 

            Finally, respondent challenged the state to show reliability of the eyewitness identifications and maintained that several of the state’s witnesses were never shown a lineup to identify respondent.  The state explained that a lineup would not be necessary because “all of these people know each other.”  The district court then directed the state to prepare a new photographic lineup.

            Based on the district court’s rulings, and prompted by its decision not to permit the state to supplement the complaint with the tenant’s statement, the state appeals the court’s pretrial orders regarding (1) the dismissal of the burglary charge, (2) the suppression of the handgun, and (3) the in-court identification testimony procedure.

D E C I S I O N

I.

            The state argues that the district court erred when it determined that the complaint lacked sufficient probable cause on the entry-without-consent element of the burglary charge.  A dismissal for lack of probable cause is appealable if it is based on a legal determination.  State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).  A legal determination is reviewed de novo.  See State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999) (reviewing statutory interpretation underlying dismissal for lack of probable cause).  This court will reverse probable-cause pretrial dismissals only when the state clearly and unequivocally demonstrates that (1) the error will have a critical impact on the outcome of the trial unless it is reversed and (2) the district court erred in its judgment.  Minn. R. Crim. P. 28.04; State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001).  Because the dismissal of a charge within the complaint prevents the charge from going forward, the critical-impact requirement is satisfied.  Id.  We therefore turn to whether or not the district court erred by dismissing the burglary charge.

A person commits burglary in the first degree if he “enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice.”  Minn. Stat. § 609.582, subd. 1 (2002) (emphasis added).  The burglar may be sentenced or fined if:

(a)       the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;

 

(b)       the burglar possesses, when entering or at any time while in the building . . . a dangerous weapon;

 

(c)       the burglar assaults a person within the building . . . .

 

Id.  “Consent” is defined as “[a]greement, approval, or permission as to some act or purpose, esp[ecially] given voluntarily by a competent person.”  Black’s Law Dictionary 300 (7th ed. 1999). 

The district court dismissed the first-degree burglary charge because it found that the complaint lacked probable cause on the without-consent element of the burglary.  The following discussion occurred at the omnibus hearing:

[Prosecutor]:Your Honor, we have been searching for [M.N., the tenant] for months.

 

[The Court]:   I understand that.  When this [c]omplaint was signed there wasn’t probable cause, and there has been no testimony in front of me to establish probable cause.

 

[Prosecutor]:But . . . this was a[n omnibus] hearing.

 

[The Court]:   Right.  And one of the issues is probable cause.

 

[Prosecutor]:Well, the only thing that we can do then, Your Honor, is to amend the probable cause section of the [c]omplaint as soon as we can. 

 

[The Court]:   But I already know the defense has a contradictory statement. 

 

                                                . . . .

 

[The Court]:   It’s the state’s burden to establish probable cause. 

 

                                                . . . .

 

[The Court]:   And you didn’t bring any witness to testify to it—

 

                                                . . . .

 

[Prosecutor]:No, I don’t need to bring a witness.  This wasn’t charted as a Florence hearing.

 

[The Court]:   Well, I’m dismissing Count I.  And you can disagree with me, but that count is dismissed.

 

The court later denied the state’s request to supplement the record with the statement of the premises’ tenant.

Probable cause exists when “evidence worthy of consideration . . . brings the charge . . . within reasonable probability.”  State v. Steinbuch, 514 N.W.2d 793, 798 (Minn. 1994) (quotation omitted).  Stated differently, probable cause exists when “the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.”  State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001), review denied (Minn. June 27, 2001).  “In addressing a probable cause challenge, the court must determine whether, given the facts disclosed by the record, it is fair and reasonable to require the defendant to stand trial.”  Id.  Thus, the ultimate issue is whether the complaint alleges sufficient facts to bring the burglary charge “within reasonable probability.”  Steinbuch, 514 N.W.2d at 798. 

A.        Presence of Entry-Without-Consent Element in Complaint

A complaint is “a written signed statement of the essential facts constituting the offense charged.”  Minn. R. Crim. P. 2.01.  Here, the amended complaint alleges that two witnesses “heard a ‘crash’ and saw two adult males, later identified as [respondent and his co-defendant] break into the house and run into the living room [with] weapons.”  Another witness “saw both [respondent and his co-defendant] break into the house” and then “heard a gun shot.”  The district court opined, “I don’t believe [the tenant] ever said [respondent] couldn’t be in her house.”  While this might be true, the record does not reflect that the tenant ever gave respondent permission to be in her home.  The district court is correct that the complaint does not even mention the tenant of the premises in question.  But based on the facts alleged in the complaint as a whole and from the accounts of three witnesses, it can be reasonably inferred that respondent entered the premises “without consent.”  To determine otherwise would ignore the articulated facts of the complaint.  We therefore conclude that the district court erred by dismissing the burglary charge for lack of probable cause in the complaint.

B.        Denial of Opportunity to Amend Complaint or Put Forth Evidence of Lack of Consent

 

Even if the complaint lacked any trace of an element necessary to sustain a charge of burglary, the district court should have permitted the state to amend its complaint.  Under the criminal-procedure rules,

the facts establishing probable cause to believe that an offense has been committed and that the defendant committed it shall be set forth in writing in the complaint, and may be supplemented by supporting affidavits or by sworn testimony of witnesses taken before the issuing judge or judicial officer.

 

Minn. R. Crim. P. 2.01 (emphasis added).  In addition, Minn. R. Crim. P. 3.04, subd. 2, permits “a new complaint to be filed . . . provided the prosecuting attorney promptly moves for such continuance on the ground: (a) that the initial complaint does not properly name or describe . . . the offense charged.”  While recognizing that a district court has discretion to grant or deny the state’s request to amend a criminal complaint, the supreme court has previously allowed “‘housekeeping’ amendment[s],” which do not charge an additional or different offense.  State v. Smith, 313 N.W.2d 429, 430 (Minn. 1981); contra State v. Baxter, 686 N.W.2d 846, 853 (Minn. App. 2004) (affirming district court’s denial of state’s motion to amend where amendment would have added an additional count that was “more than a mere ‘housekeeping’ amendment”).  As such, the criminal-procedure rules and caselaw contemplate the right to amend a criminal complaint in order to supplement a defect in the document.  A complaint may be cured either by “supporting affidavits or by sworn testimony of witnesses” or by amendment of the complaint itself.  Minn. R. Crim. P. 2.01; Minn. R. Crim. P. 3.04, subd. 2. 

Given that the state was unable to locate the tenant of the premises until just before the district court’s ruling, the district court abused its discretion by not permitting the state to either (1) amend the complaint itself or (2) offer the tenant’s testimony—in the form of an affidavit or through in-court testimony—that she was the tenant of the premises and that she had not given respondent permission to enter the premises.  When the state attempted to offer the tenant’s recently obtained statement, the district court rejected the offer, classifying it as “total hearsay” because it was obtained by the prosecutors and would make them “witnesses” in the case.  But “[a] finding by the court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part.”  Minn. R. Crim. P. 11.03; see also Ortiz, 626 N.W.2d at 451 n.1 (when determining probable cause to support a charge, the district court may consider evidence in a form that is not necessarily admissible at trial).  Thus, the district court’s unwillingness to “receive such evidence . . . offered in . . . opposition” to respondent’s motion to dismiss the charge was in error and the burglary charge must be permitted to go forward.  Minn. R. Crim. P. 11.03.   

II.

            The state next argues that the district court erred by suppressing a handgun allegedly involved in the case.  When the state appeals a pretrial suppression order, it “must ‘clearly and unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id. 

A.        Critical Impact

            “Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.”  State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).  “Whether suppression of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state’s evidence against the accused.”  Zanter, 535 N.W.2d at 630.

            When analyzing critical impact, an appellate court “first examine[s] all the admissible evidence available to the state in order to determine what impact the absence of the suppressed evidence will have.”  In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).  We then examine the inherent qualities of the suppressed evidence itself, its relevance and probative force, its chronological proximity to the alleged crime, its effect in filling gaps in the evidence viewed as a whole, its quality as a perspective of events different than those otherwise available, its clarity and amount of detail, and its origin.  Id.  “Suppressed evidence particularly unique in nature and quality is more likely to meet the critical impact test.”  Id.  And the state is not required to show that a conviction is impossible without the evidence—only that a prosecution’s success will be seriously jeopardized without it.  Id. 

            Here, respondent is specifically charged with one count of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2002).  Several of the remaining counts in the complaint also require or imply the use of a “dangerous weapon” or “firearm” as an element of the charged offense.  See Minn. Stat. § 609.582, subd. 1(b) (2002) (“the burglar possesses . . . a dangerous weapon”); Minn. Stat. § 609.221, subds. 1, 2 (2002) (“Whoever assaults another and inflicts great bodily harm . . . .”); Minn. Stat. § 609.222, subd. 1 (2002) (“Whoever assaults another with a dangerous weapon . . . .”).  The state argues that in order to prove each of the charged offenses, it must establish that respondent possessed such a “dangerous weapon” or “firearm”—the very handgun suppressed by the district court in this case.   

            Because each of the charged offenses involves the use of a “dangerous weapon” or “firearm,” we determine that the district court’s decision to suppress the handgun at trial will have a “critical impact” on the state’s ability to succeed in its prosecution.  See, e.g., State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (dismissal of weapons charge had critical impact); State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (critical impact shown by suppression of evidence essential to proof of four DWI counts), review denied (Minn. Aug. 27, 1986). 

B.        Clear and Unequivocal Error

Once critical impact has been established, we must determine whether the district court “clearly and unequivocally” erred in suppressing the evidence.  Zanter, 535 N.W.2d at 630.  A district court’s decision on the admission of evidence is reviewed for an abuse of discretion.  State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998).  Absent a clear abuse of that discretion, the district court’s evidentiary ruling will not be reversed.  Id.  “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Minn. R. Evid. 901(a). 

Here, the district court suppressed the handgun because it was “irrelevant” and did not have “anything to do with these proceedings.”  It explained:

[T]his gun [was] found in a car that does not belong to any of [the co-defendants].  It’s been supposedly stolen for a number of days and handled by a number of people.  The gun is inside that wheel—the spare tire compartment, and this gun is not identified as any gun used by [respondent], alleged to have been used by [respondent] at the time of the incident.

 

The district court essentially found Sgt. Hamilton’s testimony to be incredible and disparaged the procedure that Hamilton used to inventory the contents of the stolen Mercedes.  In the district court’s opinion, the gun was simply “irrelevant” to the proceedings because of the proffered evidence regarding the handling of the stolen Mercedes—from the time it was impounded in the early morning of Friday, August 15, to the time that Sgt. Hamilton searched the vehicle by himself on Monday, August 18, 2003.  Thus, the district court’s ruling appears to have been based on its perception that the gun’s chain-of-custody was tainted by the police.  In fact, respondent has argued as much to this court.

            But the district court conflated any potential chain-of-custody issue with respondent’s theory that the handgun was planted.  The chain-of-custody rule requires the state “to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at trial.”  State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976) (emphasis added).  Such a requirement ensures that (1) the evidence offered is the same as that which was seized and (2) the evidence is in substantially the same condition.  Id.  Thus, the very purpose of establishing a chain of custody is to ensure that evidence has not been contaminated or altered after it has been seized.  Id.; State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review denied (Minn. Nov. 25, 1992).  Here, the district court took issue with the problematic handling of the gun before it was seized by Hamilton. 

“Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur.”  Johnson, 307 Minn. at 505, 239 N.W.2d at 242; see also State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982) (reaffirming Johnson after the adoption of Minn. R. Evid. 901(a)).  Notably, “[c]ontrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility.”  Johnson, 307 Minn. at 505, 239 N.W.2d at 242. 

            As a preliminary matter, we note that the testimony offered at the omnibus hearing did not conclusively establish that the handgun had been contaminated or altered after it was seized.  And here, the handgun was not immediately acquired when the stolen Mercedes was stopped by police and then transferred to the impound lot for safekeeping.  Instead, Sgt. Hamilton did not execute the search warrant on the stolen Mercedes until a few days after it had been taken to the impound lot.  The district court appears to have made a chain-of-custody ruling based on its belief that the handgun discovered in the spare-tire compartment of the stolen Mercedes could have been anyone’s—and not necessarily respondent’s—because (1) the gun was found in a stolen car that had been handled by a number of people and (2) the gun had not been identified as the gun allegedly used by respondent in the commission of the crimes.  The district court explained that its conclusion was based on a relevancy determination.[6]  But the omnibus transcript suggests that the court made its ruling based on a flawed chain-of-custody analysis because it analyzed chain of custody from before, not after, the evidence was first seized.  Johnson, 307 Minn. at 504, 239 N.W.2d at 242. 

Respondent offered little beyond speculation that the handgun was planted in the stolen Mercedes searched by Hamilton.  Because Hamilton did not videotape or conduct the search in the presence of others, whether or not the evidence was tampered with or substituted might never be conclusively known.  But the state must show “only that it is reasonably probable that tampering or substitution did not occur.”  Johnson, 307 Minn. at 505, 239 N.W.2d at 242. 

In Hager, the Minnesota Supreme Court cited favorably to an article discussing the authentication of real evidence.  325 N.W.2d at 44 (citing M. Graham, Evidence and Trial Advocacy Workshop: Relevance and Exclusion of Relevant Evidence—Real Evidence, 18 Crim. L. Bull. 241, 243-47 (1982) [hereinafter Real Evidence].  In the article, Professor Graham explains that an instrumentality’s connection with a crime may be proved either by circumstantial or direct evidence.  Real Evidence, supra, at 247-48.  Elaborating, Graham states:

[I]f an object is shown to be connected with a defendant, admissibility does not require a showing that such an object was actually used in the offense charged, so long as it is shown that the object is at least suitable for the commission of the crime, or otherwise related to the offense.

 

Id. at 249 (emphasis added).  The Ninth Circuit has further elucidated the concept:

Obviously a gun is a useful instrument for a robber.  Professor Wigmore points out: “As a general principle, then, the existence . . . of the physical . . . means to do an act is admissible as some evidence of the possibility or probability, of the person’s . . . doing it.”

 

Id.(emphasis in original) (citation omitted) (citing United States v. Walters, 477 F.2d 386, 389 (9th Cir.), cert. denied 414 U.S. 1007 (1973)).  We conclude that the weight to be given to the handgun and whether or not it was connected to the underlying crimes should be determined by the fact-finder at trial.  It was therefore an abuse of discretion for the district court to suppress the handgun. 

III.

            The state’s final argument is that the district court erred when it directed the state to show its witnesses a court-approved photographic lineup and made this procedure a condition precedent to admission of any testimony identifying respondent.  At the omnibus hearing, respondent challenged the in-court identification proposed to be offered by J.W., a material witness to the events of the night in question.  Because a criminal conviction cannot be based upon the testimony of an accomplice and must be corroborated by other evidence, State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995), the state asserts that J.W. must be permitted to identify respondent in court in order to put forth a successful prosecution.

            When the state was ordered to prepare and submit a new, court-approved photographic lineup, its original lineup was effectively suppressed.  Again, when the state appeals a pretrial suppression order, it “must ‘clearly and unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  Scott, 584 N.W.2d at 416.  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id. 

A.        Critical Impact

Critical impact can be established in “cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.”  Kim, 398 N.W.2d at 551.  “Whether suppression of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state’s evidence against the accused.”  Zanter, 535 N.W.2d at 630.  Because the testimony of respondent’s co-defendant must be corroborated by J.W. and the state asserts that his identification “will directly inculpate [r]espondent,” we conclude that the district court’s order had a critical impact on the state’s ability to successfully prosecute respondent.  The question thus remains whether the district court erred by ordering the new lineup procedure. 

B.        District Court Error

Reliability is the central factor in evaluating the admissibility of identification testimony.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  Five factors are to be considered in evaluating the likelihood of misidentification:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation. 

 

Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).  Respondent objected to the existing lineup, claiming that “[respondent] is the center picture, his head is the largest picture on the page and your eye is drawn [t]o it.”  But the district court did not consider any of the Neil factors in making its determination that a new lineup would be necessary.  Instead, it ordered the new lineup and left for later determination whether it would be “good [and] fair.”

Appellate courts apply the following test to determine whether a pretrial identification procedure must be suppressed:

The first inquiry focuses on whether the procedure was unnecessarily suggestive.  Included in that inquiry is whether the defendant was unfairly singled out for identification.  Ultimately, the concern is whether the procedure used by the police influenced the witness identification of the defendant.

 

            If the procedure is found to be unnecessarily suggestive, the court must then determine under the totality of the circumstances whether the identification created a very substantial likelihood of irreparable misidentification. 

 

Taylor, 594 N.W.2d at 161 (quotations and footnotes omitted) (emphasis in original).  When a suggestive identification procedure was merely confirmatory in nature, the supreme court held that it did not create a “substantial likelihood of misidentification.”  Id.at 162 (citing State v. Darveaux, 318 N.W.2d 44, 47-48 (Minn. 1982)). 

            Even under respondent’s characterization of the lineup, it would not be unnecessarily suggestive because the witness, J.W., knew respondent and would testify that he observed respondent’s actions on the night in question.  We therefore determine that his identification would be merely “confirmatory” and would not “create a substantial likelihood of misidentification.”  Darveaux, 318 N.W.2d at 47-48.  The procedure imposed by the district court was therefore in error. 

IV.

            Respondent filed a cross-appeal in this case immediately after the state’s notice of appeal.  Criminal defendants do not have an independent pretrial right to appeal.  Kim, 398 N.W.2d at 549 n. 8.  But if the state files a pretrial appeal, as here, the defendant may respond with a cross-appeal.  See Minn. R. Crim. P. 28.04, subd. 3 (“Upon appeal by the prosecuting attorney, the defendant may obtain review of any pretrial . . . order which will adversely affect the defendant . . . .”).  This court has the authority to decline to review issues raised in a cross-appeal.  State v. Kim, 374 N.W.2d 814, 816 (Minn. App. 1985), aff’d 398 N.W.2d 544 (Minn. 1987).  Respondent raises three separate issues on cross-appeal, arguing that (1) he cannot be charged for soliciting a minor if that minor has been previously adjudicated as an adult, (2) he, and all criminal defendants, should be entitled to appeal prior to trial without having to wait for the state’s notice of appeal, and (3) the police failed to obtain a waiver from his counsel on unrelated charges before interviewing him in the present case. 

            We decline to address respondent’s first two arguments as they are structured because they conflate the role of this court with the decidedly distinct role of the legislature and the supreme court.  The function of the court of appeals is “primarily decisional and error-correcting, rather than legislative or doctrinal.”  Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d 78, 83 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990).  Moreover, it is not the role of this court to extend existing law or create new law.  State v. Fitzpatrick, 690 N.W.2d 387, 392 (Minn. App. 2004).  Instead, that task is left to the supreme court and the legislature.  Id.  Because there is no authority to suggest that persons certified as juveniles for one criminal offense are or should be so certified for another offense, we reject respondent’s invitation to alter existing law.  And because the supreme court—and not the court of appeals—is the judicial body authorized to make substantial changes to the Minnesota Rules of Criminal Procedure, we reject respondent’s argument that criminal defendants should have the right to file pretrial appeals.  See Minn. Stat. § 480.059, subd. 1 (2004) (“The [s]upreme [c]ourt shall have the power to regulate the pleadings, practice, procedure, and the forms thereof in criminal actions in all courts of this state, by rules promulgated by it from time to time.”). 

            As for the third argument, respondent asserts that Sgt. Hamilton failed to obtain a waiver from his counsel representing him on unrelated charges against him before interviewing him in the present case.  The district court rejected this argument and ruled that respondent never asked for an attorney before being interviewed and that his statements to police did not violate his Sixth Amendment right to counsel.  Both the United States and Minnesota Constitutions guarantee a right of legal representation to anyone charged with a crime.  U.S. Const. amend. VI; Minn. Const. art. 1, § 6.  The right attaches when the state initiates adversary judicial proceedings against an accused “by way of formal charge, preliminary hearing, indictment, information, or arraignment.”  State v. Ture, 353 N.W.2d 502, 509 (Minn.1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882 (1972)).  The Minnesota Supreme Court has further stated that the Sixth Amendment right to counsel “is offense specific.”  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997) (citing McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)).  We agree with the district court and conclude that the same holds true here because Sgt. Hamilton interviewed respondent on an unrelated matter before adversary proceedings had begun. 

            Affirmed in part, reversed in part, and remanded.