This opinion will be unpublished and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

A05-208

 

State of Minnesota,
Respondent,

vs.

Gary A. Kachina,
Appellant.

 

Filed May 16, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 0403928

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Sean Michael McGuire, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant Gary Kachina challenges his convictions of first-degree burglary arguing that (1) two show-up identifications were improperly admitted and tainted the in-court identifications; (2) the prosecutor should have been sanctioned for violating discovery rules; (3) the charges against him should have been severed; and (4) a new trial should have been granted due to prosecutorial misconduct.  We affirm.

FACTS

 

            The homes of T.W. and T.G. were burglarized on the morning of May 10, 2004.  Both T.W. and T.G. interrupted the burglar in the course of burglarizing their homes.  T.W. lives on the 8400 block of Queen Avenue North in Brooklyn Park and called police around 5 a.m.  An officer promptly arrived and then a canine officer came with his dog, Nitro.  Nitro began following what was hoped to be the burglar’s scent.

            A short time later, a call came from T.G. about a burglary in the 3300 block of 84th Avenue, about six blocks away.  Another officer, who was aiding in the canine search, believed the burglaries were related because the descriptions of the intruder were consistent, and shifted the search location.  Although Nitro had lost the initial scent, he picked up a scent at the new location.  The officers saw a suspect running away, but he eluded them.  A short time later, an officer saw appellant hiding and then running.  The officer thought that appellant matched the description of the burglar and ordered him to stop.  When appellant did not stop, the officer had Nitro seize him and he was arrested. 

When appellant was searched, cash and T.W.’s credit card, cigarettes, and lighters were found in his pockets.  One of the officers testified that he found a red cap at the site of the apprehension and, although he did not see the cap on appellant’s head, he believed it may have been knocked off of appellant when Nitro brought him down.  Soon thereafter, T.W. and T.G. were separately brought to the location where appellant was held.

            T.W. testified at both the Rasmussen hearing and the trial.  He stated that he fell asleep with the kitchen light and his TV both turned on, that he was awakened by a noise at around 5 a.m., that he saw someone standing about five feet from him, and that he yelled at the person to leave.  T.W. testified that the person he saw was a white male, about 5’9”, slightly built and wearing a red baseball cap, a white and blue sweatshirt, and dark pants.  T.W. said that although he watched the intruder as the intruder tried to open the door to flee, he did not have a clear view of his face and mostly saw his profile.  In checking his home, T.W. noted that several items were missing, including two credit cards, cigarettes and lighters, and cash.

            With respect to the show-up, T.W. testified that before identifying appellant, the police told him that they thought they had the person who broke into his home and that there had been another break-in in the area.  T.W. further testified that there were police cars and officers at the scene of the show-up, that appellant was approximately 50 to 75 feet away, and that when asked if appellant was the person T.W. saw in his home, T.W. said that “it does look like him,” then asked if appellant had a cap.  The police told appellant to put on the red cap they had found next to him, and then T.W. positively identified appellant as the person in his home.

T.G. did not attend the Rasmussen hearing but did testify at trial.  T.G. testified that she fell asleep around 2:30 a.m. in her bedroom with the TV on; that around 3:30 or 3:45, she heard a noise upstairs; that she woke again when she felt a cold breeze on her face; that a man “popped up” at the foot of her bed about five feet from her; and that when she asked the man who he was, he turned, unlocked her bedroom door, and left.  T.G. further testified that she got a good look at the man, including his face; that he was wearing a red cap, dark-colored pants, and a blue and white shirt; that he was “sickly” and “real thin in the face;” and that she thought he was “just a kid.”  T.G. said that she immediately called the police and that an officer arrived and asked her to go with him to identify a suspect.  T.G. testified that the officer told her that “a dog followed [the suspect’s] . . . scent from [T.G.’s] back door” and that he had been caught in the park.  At the scene of the apprehension, T.G. viewed appellant through the Plexiglas of the seat divider and the windshield of the squad car.  T.G. said appellant was handcuffed and that she was positive that he was the man in her bedroom.

            Appellant was charged with two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a), 1a (2002).  Before trial, appellant moved to suppress out-of-court and in-court identifications.  The district court denied the motion and the jury convicted appellant of both counts of first-degree burglary.  This appeal follows.

D E C I S I O N

 

I.

 

            The first issue is whether the show-ups at which the victims identified appellant were impermissibly suggestive and, if so, whether they require reversal of appellant’s convictions.  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).  “[T]he reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (quotation omitted).

When determining the admissibility of identification testimony, the reliability of the identification is critical.  Id.   If the techniques utilized by the police in obtaining the identification are tainted by suggestion, the result may be irreparably compromised.  Id.  When determining whether a pretrial identification must be suppressed, we apply a two-part test.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  “The first inquiry focuses on whether the procedure was unnecessarily suggestive.”  Id.  Included in that inquiry is “whether the defendant was unfairly singled out for identification.”  Id.  “Ultimately, the concern is whether the procedure used by the police influenced the witness identification of the defendant.”  Taylor, 594 N.W.2d at 161.

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.”  Ostrem, 535 N.W.2d at 921.  “However, ‘if the totality of the circumstances shows the witness’ identification has an adequate independent origin, it is considered to be reliable despite the suggestive procedure.’”  Taylor, 594 N.W.2d at 161 (citing Ostrem, 535 N.W.2d at 921); see also State v. Darveaux, 318 N.W.2d 44, 47 (Minn. 1982) (stating that “[b]ecause the physical lineup was merely confirmatory, we find that it did not cause a substantial likelihood of misidentification.”).  A one-person show-up is not unnecessarily suggestive per se.  State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983).

We have considered an identification in which the police singled out a suspect from the general population for a show-up.  State v. Anderson, 657 N.W.2d 846 (Minn. App. 2002).  In that case, an officer en route to the burglary noticed Anderson in the area, arrested him, and took him to the eyewitness for a show-up.  Id. at 849.  The officer told the eyewitness that a person was in custody who matched the eyewitness’s description.  Id.  The eyewitness identified Anderson at the show-up as one of the burglars.  Id.  At trial, the eyewitness was unable to identify Anderson.  Id. at 852.  The eyewitness said he focused mainly on Anderson’s clothing at the show-up, but was not certain that the clothing introduced at trial was the clothing that he saw Anderson wearing.  Anderson, 657 N.W.2d at 852.  This court concluded that the show-up was impermissibly suggestive, that there was a substantial likelihood of misidentification, and applying the harmless-error analysis, reversed.  Id. 

T.W.’s Show-Up Identification

            T.W.’s show-up identification was suggestive in several respects: (1) appellant was handcuffed when T.W. identified him; (2) police told T.W. they had someone in custody who matched his description; (3) police told T.W. that appellant broke into another home nearby; and (4) police told T.W. that appellant was chased and apprehended by a canine unit.  This was unnecessarily suggestive.

            Although the district court found that T.W.’s show-up identification was not unnecessarily suggestive, it went on to find that (1) T.W. had a “brief opportunity” to view the intruder in a “well-lighted” area as the intruder struggled to open his door; (2) although T.W. was awakened from sleep, the intruder had his “undivided attention”; (3) T.W.’s description of the clothing was accurate as to the pants and hat, but inaccurate as to the shirt and his identification was based on the intruder’s build because T.W. did not see the intruder’s face, just a profile; (4) T.W. expressed certainty once appellant put on the cap because T.W.’s identification was based on what the intruder was wearing; and (5) the time between the crime and the identification was short, around a half an hour.  Based on the totality of the circumstances, the district court denied the motion to suppress T.W.’s identification.

            In addition to the facts found by the district court, T.W.’s description was accurate with regard to appellant’s physical characteristics.  Appellant argues that T.W.’s misidentification of the color of appellant’s shirt and the fact that appellant was not actually wearing the red cap when he was apprehended undermine the identification.  However, an officer discovered the red cap close to appellant when he was brought down by Nitro, and appellant had cash and T.W.’s credit card, cigarettes, and lighter.  Unlike the eyewitness in Anderson, T.W. positively identified appellant at trial as the intruder.  Although there is a risk that the identification at trial was tainted by an unnecessarily suggestive identification at the show-up and that the jury was influenced by evidence of that questionable show-up, the district court’s ruling reflects a careful weighing of the victim’s trial testimony for certainty and credibility. 

            We conclude that on this record, the district court did not err in determining that T.W.’s courtroom identification was independent, that the other evidence of guilt before the jury was strong, and that based on the totality of the circumstances, the verdict is clearly not attributable to the improper show-up.

T.G.’s Show-Up Identification

            T.G.’s show-up identification was even more suggestive.  Police told T.G. that (1) they had a suspect in custody who matched her description; (2) appellant was “active” that night, committing another burglary; (3) appellant ran from police; (4) the police dog caught appellant and “made a biscuit” out of him; and (5) the police dog tracked appellant from her back door (which was not true).  The prosecutor conceded, and the district court agreed, that T.G.’s identification was unnecessarily suggestive.  However, the district court again made findings on the totality of the circumstances:

As to [T.G.], she had an opportunity to view the person, again her degree of attention was undivided, her description was accurate, her level of certainty was high, and there was a brief time between the crime and the confrontation.

 

The district court denied the motion to suppress T.G.’s show-up identification and in-court identification. 

The record indicates that T.G. saw the suspect from less than five feet away for several seconds and described him as very thin and sickly.  T.G. called the police immediately and told the 9-1-1 operator that she saw the intruder “perfectly.”  She then gave a description that matched appellant.  At the show-up, T.G. expressed certainty that appellant was the intruder.  Finally, at trial, T.G. was also able to identify appellant as the intruder.

            Although T.G.’s show-up identification was unnecessarily suggestive, she had an adequate independent origin for her identification of appellant as the intruder in her home.  For this reason, we conclude the district court did not err in admitting the show-up identification and the in-court identification.[1]

II.

The second issue is whether the district court abused its discretion by not dismissing the case or otherwise sanctioning the state because of certain discovery violations.  “[A] reviewing court should not order a new trial to remedy a discovery violation ‘[i]f there is no reasonable probability that the outcome of the trial would have been different had the evidence been disclosed.’”  State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  But when a prosecutor was guilty of deliberate, flagrant discovery violations, the supreme court has awarded a new trial “in the interests of justice” even where “it is at least arguable that the defense was not prejudiced by nondisclosure.”  State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992).

            Minn. R. Crim. P. 9.01, subd.1, requires that the prosecutor grant defense counsel access to “all matters within the prosecuting attorney’s possession or control which relate to the case” and disclose all documents and tangible objects that relate to the case.  Minn. R. Crim. P. 9.01, subd. 1(3).  This obligation extends to  “material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case . . . .”  Id. at subd. 1(7).  Minn. R. Crim. P. 9.03, subd. 2, also imposes on all parties a continuing duty to disclose after compliance with a discovery request.

            Here, just before trial, the Brooklyn Park Police Department provided the prosecutor with certain evidence, including videotapes from squad cars, that contain the conversations that police had with the victims.  Although the prosecutor immediately disclosed the information to the defense, the district court concluded that the delay by law enforcement was improper.  The district court also noted that some tapes were erased as part of the police department’s practice of re-using tapes, but that there was no allegation of intentional destruction of evidence.  Although jury selection had begun, the court discharged prospective jurors, continued the proceeding until the next week, and then empanelled a jury. 

            Because the evidence was disclosed prior to trial and the defense was afforded an opportunity to review the evidence prior to trial, we conclude the district court did not abuse its discretion in denying appellant’s motion for other discovery sanctions.

III.

            The third issue is whether the two burglary counts should have been severed for separate trials.  The district court’s ruling on severing claims, even if improper, will not be reversed unless “prejudicially erroneous.”  State v. Profit, 591 N.W.2d 451, 460 (Minn. 1999).  On motion of the defendant, the court shall sever offenses or charges if the offenses or charges are not related and severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense or charge.  Minn. R. Crim. P. 17.03, subd. 3(1).  The determination of whether offenses arose from a single behavioral incident so as to permit their joinder for trial depends on the facts and circumstances of the case.  State v. Jackson, 615 N.W.2d 391, 394 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).

The ultimate question when offenses are improperly joined is one of prejudice.  Profit, 591 N.W.2d at 460.  Even if joined offenses are related, the court must decide whether severance is required because the joinder would be prejudicial.  State v. Conaway, 319 N.W.2d 35, 42 (Minn. 1982) (noting that if the evidence of each offense would have been admissible as Spreigl evidence in the trial of the others, there is no prejudice.)

In Jackson, this court determined that although an assault and two second-degree murder counts were related when the crimes occurred four miles and two hours apart, a request for severance should have been granted because there was no evidence that the accused had a single criminal objective.  615 N.W.2d at 394.  In State v. Dick, 638 N.W.2d 486 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002), this court held that when two burglaries occurred within a half mile and within minutes of each other and the perpetrator’s objective was looking for gas, the district court did not err in concluding that the crimes were committed as part of a single course of conduct.  Id. at 491.

Here, the district court concluded that this case was more similar to Dick because the evidence supports the conclusion that appellant had the objective of obtaining money through burglary of homes.  The district court went on to examine prejudice to appellant and concluded that even if appellant’s motion for severance was granted, evidence of the other crime could come in as Spriegl evidence.  We conclude that, based on the record and Dick, it was not clearly erroneous for the district court to rule that the crimes arose from a single behavioral incident and were properly joined for trial and to deny the motion to sever.  See id.

IV.

            The last issue is whether the district court erred in denying a new trial based on alleged prosecutorial misconduct.  This court will only reverse “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  The appellate courts apply a harmless-error analysis to determine whether prosecutorial misconduct warrants a new trial.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

            Appellant asserts that the prosecutor attempted to place the burden of proof on appellant in his closing argument when the prosecutor stated, “[T]he normal reaction of an innocent person would be to say . . . ‘I’ve done nothing wrong.’”  Additionally, appellant complains that the prosecutor noted that appellant failed to account for evidence found on him at his arrest and that no one could confirm that appellant had a job.

            In State v. Henderson, the supreme court concluded that while a prosecutor’s suggestions that the defendant failed to produce evidence to support his theory of the case or alibi were of concern, because those comments were probably cured by the district court’s instruction to the jury that the defendant does not have to prove innocence, the misconduct was not so prejudicial that the defendant was denied his right to a fair trial.  620 N.W.2d 688, 703 (Minn. 2001).  And in State v. Salitros, the supreme court emphasized that prosecutors are free to argue that there is no merit to a particular defense in light of the evidence or no merit to a particular argument. 499 N.W.2d 815, 818 (Minn. 1993).

            Taken separately, the first statement is the most suspect.  The prosecutor called into question defendant’s innocence because of his reaction to the canine apprehension.  However, the district court instructed the jury on the presumption of innocence, and under Henderson, we conclude this is sufficient to cure the prejudicial effect of the prosecutor’s comment.  The other statements are arguments based on the evidence presented to the jury and are permissible under Salitros.  For these reasons, we conclude that because any prejudice the appellant might have suffered was cured when the district court instructed the jury on the presumption of innocence, the district court did not abuse its discretion in denying appellant’s motion for a mistrial after closing arguments.

            Affirmed.