A06-219

State of Minnesota,

Respondent,

vs.

Lucanus John Plaisance,

Appellant.

Filed April 24, 2007

Affirmed

Worke, Judge

Pipestone County District Court

File No. K9-05-188

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James O’Neill, Pipestone County Attorney, P.O. Box 128, Pipestone, MN 56164 (for respondent)

Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from a conviction of first-degree burglary, appellant argues that the district court abused its discretion by admitting photo-lineup identifications that were the product of an unnecessarily suggestive procedure because the police officer failed to tell the victims that the suspect may or may not be in the lineup. We affirm.

D E C I S I O N

Appellant Lucanus John Plaisance argues that the district court abused its discretion when it admitted photo-lineup identifications. In general, “[e]videntiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). But when reviewing a pretrial order deciding a motion to suppress evidence when the facts are undisputed and the district court’s decision is a question of law, this court determines, as a matter of law, whether the evidence need be suppressed. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).

“Admission of identification evidence derived from suggestive identification procedures violates due process.” State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995). Identification evidence must be excluded if the procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968). “When determining whether a pretrial identification must be suppressed, we apply a two-part test.” Taylor, 594 N.W.2d at 161. “The first inquiry focuses on whether the procedure was unnecessarily suggestive.” Id. When determining whether an identification procedure was unnecessarily suggestive, we inquire “whether the procedure used by the police influenced the witness identification of the defendant.” Id. The key factor in considering whether an identification procedure was unnecessarily suggestive is “whether the defendant was unfairly singled out for identification.” State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). If the procedure was unnecessarily suggestive, the second inquiry is whether the identification was reliable under the totality of the circumstances. Id. A new trial is not required if the tainted identification evidence is harmless beyond a reasonable doubt. State v. Jones, 556 N.W.2d 903, 913 (Minn. 1996).

Unnecessarily Suggestive

Appellant argues that the photo lineup was unnecessarily suggestive because the deputy did not tell the victims that the suspect may not be in the lineup. Appellant contends that by not telling the victims that the suspect may not be in the lineup, the deputy suggested to the victims that the suspect was in the lineup.

Appellant relies on State v. Young, 710 N.W.2d 272 (Minn. 2006). In Young, a woman discovered two men in her kitchen, one holding a gun and the other holding a knife. 710 N.W.2d at 276. After the men put the woman in her bathroom, she heard a gunshot and emerged to find her boyfriend bleeding and struggling to breathe. Id. The police showed the woman a photo lineup and she identified the man who had the gun. Id. at 277. The woman then pointed to another picture in the lineup and stated that she thought it was the other suspect. Id. The police told her, “No. No. The second suspect isn’t on this one.” Id. The next day, the woman identified Young in a different photo lineup. Id.Young challenged the admission of the photo-lineup evidence, arguing that the procedures used by the police were unnecessarily suggestive because they led the witness to believe that the suspect was in the second lineup. Id.at 282. The supreme court held that the lineup was not unnecessarily suggestive because it was not clear that the witness assumed that a suspect was in the lineup or that the police led her to that assumption. Id. The court also noted that Young did not argue that the lineup “singled him out” in any way and that the witness testified that the police did not indicate to her which photo to choose. Id. The court noted that its decision in Young was based in part on the witness’s testimony that the police “read her the standard advisory—stating that the suspect may or may not be in the lineup.” Id.

Here, J.C. awoke to the sound of someone rustling around in his kitchen; he got out of bed and saw a man rummaging through his belongings. J.C. was only a few feet away from the man and could see his face. J.C. asked the man who he was and what he was doing in his house. The man apologized for being in the wrong house and explained that he thought he was in his friend’s house. J.C. told the man that his friend did not live there and to stay while he called 911. The man ran out the front door while J.C. called 911.

The same morning, about seven blocks away from J.C.’s house, S.P. heard someone come in her back door, into her bedroom, and search through the clothing lying on her bed. The person left through the back door, and S.P. looked out the window and saw a man standing approximately 40 feet from her back door. The next day, a deputy showed J.C. a photo lineup and asked him if the person he saw in his home was in one of the photos. J.C. identified appellant as the person he saw in his home. The police showed S.P. the same photo lineup, and she also identified appellant as the man she saw.

During trial, appellant’s attorney asked J.C. if the deputy told him whether the suspect was in the photo lineup. J.C. responded: “Nope . . . he did not say that the person was for surely in the lineup. . . . He didn’t say one of the people is that person or anything like that.” Appellant’s attorney asked if the deputy said “that the person might not be in th[e] photos.” J.C. stated, “He didn’t say that either.” Appellant’s attorney asked, “Did you assume at that point that the person must be in the photos?” J.C. replied, “No.” Appellant’s attorney asked S.P. if the deputy told her “that the person was not in the lineup or could the person might not even be in the line-up?” S.P. replied that the officer did not say that.

Appellant’s case is similar to Young in that appellant does not argue that he was singled out in any way. And the key factor in considering whether an identification procedure was unnecessarily suggestive is whether the defendant was unfairly singled out. Ostrem, 535 N.W.2d at 921. Additionally, the witnesses testified that the deputy did not indicate to them whom to choose from the lineup. J.C. testified that the deputy did not tell him that the suspect was in the lineup and that he did not assume that the person was in the lineup. S.P. testified that the deputy only told her that he was going to show her a photo lineup. But appellant suggests that the police must tell the witness that the suspect may or may not be in the lineup. Although the court in Young stated that this statement factored into their analysis, it did not say that the officer must make this statement. 710 N.W.2d at 282. Therefore, the procedure that the police used here was not unnecessarily suggestive because appellant was not singled out for identification.

Reliable Under the Totality of the Circumstances

Appellant argues that the identifications were not reliable considering the totality of the circumstances. In determining whether the identification evidence was reliable under the totality of the circumstances, this court considers five factors: (1) the witness’s opportunity to view the person when the crime occurred, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty the witness demonstrated when identifying the person, and (5) the time elapsed between the crime and the identification. Ostrem, 535 N.W.2d at 921.

Here, J.C. testified that he got a good look at the man, did not have anything obstructing his view, and that there was sufficient light for him to see. J.C. paid significant attention because he carried on a brief conversation with the man. Appellant suggests that J.C.’s description of him was not accurate because J.C. testified that appellant was shorter than J.C. (6’4”) at approximately 6’2” and appellant is actually only 5’9” or 5’10” tall. But J.C. did not say that appellant was 6’2”—he stated only that the man was shorter than he and guessed two inches shorter, which could have been accurate given that J.C. had just gotten out of bed and appellant was most likely wearing shoes. Appellant also contends that J.C.’s description was inaccurate because J.C. testified that the man did not have any noticeable facial hair and appellant claims to have had facial hair. But the deputy testified that when he interviewed appellant days after the burglaries, he did not recall if appellant had a moustache, but stated that he definitely did not have a beard. The only evidence that appellant had facial hair was appellant’s testimony. Further, J.C. testified that he was absolutely certain of his in-court identification of appellant. Finally, the police showed J.C. the photo lineup the day after the burglary, thus, the lapse in time was minimal. Therefore, J.C.’s identification was reliable under the totality of the circumstances. It is not necessary to do an analysis of S.P’s identification because the jury found appellant not guilty of the burglary of her home. Because the photo lineup was not unnecessarily suggestive and because J.C.’s identification of appellant was reliable under the totality of the circumstances, appellant is not entitled to a new trial.

Affirmed.