This opinion will be unpublished and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

A06-333

 

In the Matter of the
Welfare of:  C.D.S., Child.

 

Filed January 9, 2007

Reversed and remanded
Klaphake, Judge

 

Stearns County District Court

File No. J9-05-51153

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant C.D.S.)

 

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

 

Robert Raupp, Benton County Attorney, Benton County Courthouse, 615 Highway 23, P.O. Box 189, Foley, MN  56329; and

 

Janelle P. Kendall, Stearns County Attorney, Sarah E. Hilleren, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent State of Minnesota)

 

            Considered and decided by Ross, Presiding Judge, Klaphake, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Following a jury trial, appellant C.D.S. was found guilty of attempted robbery and was adjudicated as a delinquent with extended juvenile jurisdiction (EJJ) status.  On appeal, he argues that his attorney was ineffective.  Because his attorney failed to challenge the show-up identification procedure as impermissibly suggestive and failed to request a jury instruction on corroborating accomplice testimony, we conclude that his performance was deficient.  We further conclude that given these multiple, serious errors, appellant was prejudiced and is entitled to a new trial.  We therefore reverse and remand.

D E C I S I O N

            Ineffective assistance of counsel claims involve mixed questions of law and fact, which this court reviews de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).  To establish a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was so deficient that it “fell below an objective standard of reasonableness,” and that “counsel’s error, whether or not professionally unreasonable, so prejudiced [appellant] at trial that a different outcome would have resulted but for the error.”  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

            Show-up Identification

            Appellant first challenges his attorney’s failure to request suppression of the show-up identification procedure as impermissibly suggestive.  Other than the out-of-court identification by the vehicle’s passenger during the show-up procedure, the only other evidence identifying appellant as the perpetrator was the testimony of his companions that he was the one who stood by the driver’s side window of the vehicle and spoke to the driver.

            When determining whether pretrial eyewitness identification testimony is reliable, courts use 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” or “whether the defendant was unfairly singled out for identification.”  Id.  The second inquiry focuses on whether, under the totality of the circumstances, the identification had adequate independent origin so as to be deemed reliable despite the suggestive procedure.  Id.

            Here, when the officers arrived at the scene, one spoke to the driver and passenger of the vehicle, while the others stationed themselves outside the McDonald’s, because the four black male suspects were still inside.  One suspect was detained as he walked outside; the officers handcuffed him and placed him in the back of a squad car.  The other three suspects were detained inside, handcuffed, and placed in separate squad cars.

            One officer testified that he told the driver and passenger, “We have four people, would you mind taking a look at them?,” and the individuals “match[ed] the description” given.  The officers then had each individual step out of the squad car while a light was shone on them.  Appellant was the first person shown.  The driver could not identify anyone because he was focused on the gun.  The passenger identified appellant as the perpetrator because he was wearing a blue shirt.[1]

            The state acknowledges that handcuffing appellant and his companions and positioning them next to squad cars was suggestive.  See State v. Taylor, 594 N.W.2d 158, 162 (Minn. 1999) (noting that “one-person show-up is by its very nature suggestive”).  The state nevertheless insists that because appellant was not the only one apprehended and because the officer did not use the word “suspect,” the passenger’s identification was not improperly influenced.  As appellant notes, however, this is a classic example of an impermissibly suggestive show-up:  appellant and his companions were detained because they were black males at the McDonald’s, they were handcuffed and placed in separate squad cars, and they were told to step out to be viewed by the witnesses.  See, e.g., In re Welfare of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004) (although one-man show-up was unnecessarily suggestive, new trial was unwarranted because other evidence, including combined testimony of several witnesses regarding the color of the perpetrator’s jersey, provided admissible identification evidence); State v. Anderson, 657 N.W.2d 846, 851 (Minn. App. 2002) (identification unnecessarily suggestive when police singled out defendant, brought him to scene in squad car, presented him in handcuffs flanked by police, told witness that they thought they had person in custody who matched description, and asked for identification).

            Even if a show-up is impermissibly suggestive, the identification may be admissible if it is reliable because it is derived from an adequate independent source.  See Ostrem, 535 N.W.2d at 921.  In order to evaluate whether an identification is reliable in spite of a suggestive procedure, courts look to the totality of the circumstances, including (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 time between the crime and the confrontation.  Id.

            Here, the only one of these five factors that weighs in favor of admitting this evidence is the short length of time—15 minutes—between the incident and the show-up.  The other factors weigh heavily against admission:  the passenger admitted that he could not see well, had only a limited opportunity to view the perpetrator, did not see a gun and saw only the butt of a black item but did not know what it was, could not give a description of the perpetrator, and appears to have failed to mention the blue shirt until after he identified appellant, who was the first person presented to him in the show-up. Finally, the passenger’s lack of certainty weighs against admission:  he merely testified that he “thinks” he was able to identify the perpetrator, that he was “fairly confident” in his identification because of the shirt color, and that he was as confident in his identification as he could have been.  We therefore conclude that the show-up identification procedure was impermissibly suggestive on its face, that defense counsel’s failure to challenge it was deficient, and that the show-up identification would have been suppressed but for the attorney’s error.

            Accomplice Testimony

            Appellant next argues that defense counsel was ineffective because counsel failed to request an instruction on the need for corroboration of the testimony of his three companions, who could have been charged as accomplices.  “A defendant may not be convicted based solely on the uncorroborated testimony of an accomplice.”  State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001).  Because accomplice testimony is inherently untrustworthy, an instruction requiring corroboration is warranted in any case in which “any witness against the defendant might reasonably be considered an accomplice to the crime.”  Id.

            The state asserts defense counsel’s failure to request an instruction was not deficient because appellant’s three companions were not accomplices to the attempted aggravated robbery.  An accomplice is someone who could have been charged with and convicted of the offense with which the accused is charged.  Id. at 701.  A person must have played “some knowing role in the commission of the crime.”  State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995) (quotations omitted).  Active participation is not required; a person’s presence, companionship, and conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.  See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).

            There is ample evidence in this record from which a jury could have found that appellant’s companions were accomplices because they aided and abetted in the crime.  In particular, the evidence shows that (1) the confrontation was initiated after one of appellant’s companions told the other three that the two white men in a vehicle had yelled racial epithets at them; (2) appellant and his four companions all had BB guns, either in their pockets or in their backpacks;  (3) all four approached the vehicle; (4) while appellant spoke to the driver, his three companions stood on the driver’s side, towards the back, within sight of the driver and the passenger; (5) the driver testified that after appellant threatened him and asked him for money, one of the other black males either stepped in front of appellant or pulled him back, telling him that they did not need a confrontation; (6) all four of the black males left the vehicle together and walked back into the McDonald’s; and (7) appellant and one of his companions went into the bathroom, where the companion abandoned his backpack and where a BB gun matching the description of the one pointed at the driver was found in the garbage can.  While appellant’s three companions all denied observing any robbery and there is no direct evidence that any of them knew that appellant was going to attempt to rob the driver of the vehicle, there is clearly evidence from which the jury could find that appellant’s three companions were accomplices.  See State v. Hayes, 351 N.W.2d 654, 656 (Minn. App. 1984) (stating that “[p]resence, companionship and conduct before and after the offense are circumstances from which a person’s participation may be inferred”), review denied (Minn. Sept. 12, 1984).  For these reasons, defense counsel’s performance was deficient because he failed to request an instruction on accomplice testimony.

            Prejudice

            Even if appellant has established that his attorney’s representation was deficient and fell below an objective standard of reasonableness, he still must show “that there is a reasonable probability that, but for counsel’s unprofessional error[s],” the result would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted).  Here, but for defense counsel’s errors, there is a strong likelihood that the passenger’s out-of-court identification of appellant would have been suppressed and that the jury would have received an instruction on the need for independent evidence to corroborate the testimony of appellant’s three companions, who could be considered accomplices and whose testimony is inherently suspect.  We therefore conclude that appellant is entitled to a new trial because his counsel’s representation fell below an objective standard of reasonableness that affected the verdict.

            Reversed and remanded.