This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1083

 

State of Minnesota,
Respondent,

vs.

Lonny Doom Loke,
Appellant.

 

Filed September 11, 2007

Affirmed

Wright, Judge

 

Lyon County District Court

File No. 42-K2-05-000617

 

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Richard R. Maes, Lyon County Attorney, Lyon County Government Center, 607 West Main Street, Marshall, MN  56258 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his convictions of criminal damage to property and assault, arguing that the district court erroneously admitted evidence derived from a photographic lineup and that the remaining evidence is insufficient to sustain the convictions.  Appellant also challenges his sentence, arguing that the district court’s imposition of a fine is inconsistent with its determination that appellant is indigent.  We affirm.

FACTS

Respondent State of Minnesota charged appellant Lonny Loke with first-degree criminal damage to property, a violation of Minn. Stat. § 609.595, subd. 1(3) (2004), and fifth-degree assault, a violation of Minn. Stat. § 609.224, subd. 1(2) (2004).  The complaint alleged that, on June 26, 2005, Loke vandalized school buses and struck D.W.  During his investigation of this incident, Investigator Eric Wallen prepared a photographic lineup, which he presented to D.W. three or four days after the incident.  D.W. identified Loke’s photograph as that of the perpetrator.  Prior to trial, Loke moved to suppress evidence obtained as a result of the photographic lineup, but the district court denied the motion.

During the trial, Investigator Wallen testified that he created the photographic lineup with knowledge that Loke was a suspect.  Regarding his selection of photographs for the photographic lineup, he testified, “When I pick out the photos . . . obviously, we have a suspect photo that I compare the rest of them to; I try to find ones, obviously, of the same sex or gender and similar hair color, style, body build, so they’re rather similar to the suspect.”  The district court admitted the photographic lineup into evidence.

            The jury found Loke guilty of both charges.  For the criminal-damage-to-property offense, the district court sentenced Loke to serve 12 months and one day, stayed execution of the sentence, and placed Loke on probation with several conditions, including payment of a $500 fine, a $72 surcharge, and a $10 law-library fee.  When imposing the sentence, the district court stated that it was waiving all mandatory-minimum fines “based upon [Loke’s] indigenc[e].”  The district court sentenced Loke to a concurrent term of 90 days in jail for the assault offense.  This appeal followed.

D E C I S I O N

I.

Loke challenges his convictions of first-degree criminal damage to property and fifth-degree assault, arguing that the district court erred when it admitted evidence derived from the photographic lineup because the photographic lineup was unreliable.  Generally, “[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 because the admission of identification evidence that is derived from suggestive identification procedures violates the constitutional right to due process, State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995), such evidence must be excluded if the procedure used to obtain the identification was so “impermissibly suggestive” as to create 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 is inadmissible, we first consider whether the procedure used to obtain the identification was unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  An identification procedure that influences the witness’s identification of the defendant is unnecessarily suggestive.  Id.  The key factor for this determination is “whether the defendant was unfairly singled out for identification.”  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  If the identification procedure was unnecessarily suggestive, evidence derived from it is inadmissible unless the identification was reliable under the totality of the circumstances.  Id.

A.

Loke contends that the photographic lineup was unnecessarily suggestive because Investigator Wallen did not comply with safeguards recommended by legal authorities, which include (1) using photographs of individuals who match the witness’s description of the perpetrator rather than individuals who match the suspect’s characteristics; (2) instructing the witness that the suspect’s photograph may not be included in the photographic lineup; (3) showing the witness the photographs one at a time; and (4) having the photographic lineup administered by a person who does not know the identity of the suspect.  

In support of this argument, Loke cites scholarly articles, not Minnesota law or precedent.  Indeed, Minnesota courts have upheld the admission of photographic-lineup evidence when these recommended safeguards were not employed.  Specifically, every photograph in a photographic lineup need not match the witness’s precise description of the perpetrator; rather, “[i]t is sufficient if all the people in the display bear a reasonable physical similarity to the accused.”  Seelye v. State, 429 N.W.2d 669, 672-73 (Minn. App. 1988).  And although one factor that may be considered when determining whether a photographic lineup is unnecessarily suggestive is whether a witness was told that the suspect was in the photographic lineup, State v. Young, 710 N.W.2d 272, 282 (Minn. 2006), Minnesota caselaw does not prohibit the person administering the photographic lineup from making such a statement.  Nor does it require the photographic lineup to be administered one photograph at a time.  See, e.g., Roan, 532 N.W.2d at 572-73 (holding that photographic lineup with seven photographs was not impermissibly suggestive).  Finally, Minnesota caselaw does not require the suspect’s identity to be unknown to the person administering the photographic lineup.

The photographs in the photographic lineup at issue here are of men who bear a reasonable physical similarity to Loke.  They appear to be of the same race and age and to have the same hair color, skin tone, and facial characteristics as Loke.  Because neither the photographs used nor the procedures employed unfairly singled out Loke for identification, the photographic lineup was not unnecessarily suggestive.[1]  See Ostrem, 535 N.W.2d at 921.

B.

Even if the photographic lineup were unnecessarily suggestive, Loke’s challenge to the admission of evidence derived from the photographic lineup would fail because the identification was reliable under the totality of the circumstances.  We consider five factors when determining whether an identification was reliable under the totality of the circumstances: (1) the opportunity of the witness to view the perpetrator; (2) the degree of attention the witness paid to the perpetrator; (3) the accuracy of the witness’s prior description of the perpetrator; (4) the degree of certainty the witness demonstrates in identifying the photograph; and (5) the time between the crime and the photographic lineup.  Id. 

            The evidence establishes that D.W. had a significant opportunity to view Loke.  D.W. testified that he met Loke when Loke was getting off the bus and was able to ask Loke “what he was doing.”  This interaction was close enough in proximity for Loke to hit D.W. and long enough in duration for D.W. to observe that Loke was “[a]round six foot, two” with short, black hair, a “[s]lender” build, and a slight mustache.  D.W. also observed that Loke was barefooted and “wearing like a black windbreaker and matching . . . windbreaker slacks.”  Although we cannot discern from the photographic lineup or the record whether D.W.’s descriptions of Loke’s height and build were accurate, it is evident from the photographic lineup that D.W.’s description of Loke’s black hair was accurate.  Investigator Wallen testified that D.W. identified Loke “almost instantly,” which also suggests that D.W. showed a high degree of certainty in his identification of Loke.  Furthermore, the photographic lineup was presented to D.W. within a reasonable time after the crime occurred.  See Seelye, 429 N.W.2d at 673 (concluding that photographic lineup 12 days after crime was reasonably prompt).

Taken together, these facts demonstrate that D.W.’s pretrial photographic-lineup identification of Loke was reliable under the totality of the circumstances.  Not only was the district court’s admission of this evidence proper because of the extent of D.W.’s observation of  Loke, but also this evidence is sufficient to sustain the jury’s guilty verdict.  See State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981) (stating that unless witness’s observation was “only fleeting or limited,” “uncorroborated eyewitness identification testimony of a single witness is sufficient to support a guilty verdict”).  Therefore, the district court did not err in admitting into evidence the photographic identification.

II.

            Loke also challenges the district court’s imposition of a $500 fine as a condition of probation, arguing that it is inconsistent with the district court’s statement that it was waiving the mandatory minimum fine based on Loke’s indigence.  During the sentencing hearing, the district court

placed [Loke] on supervised probation to and under the Minnesota Department of Corrections for a period of up to five years, subject to . . . the following conditions.  Number One, that [Loke] serve ninety (90) days in the Lyon County Jail . . . .  Number Two, that [Loke] pay a cash fine in the amount of $500.00, together with a $72 surcharge and $10 law library fee . . . .

 

After listing the remaining conditions, the district court ordered “that any mandatory minimum fines in the matter are waived, based upon [Loke’s] indigenc[e].”

            The maximum fine authorized by law for a felony conviction of first-degree criminal damage to property is $10,000.  Minn. Stat. § 609.595, subd. 1 (2004).  Under Minn. Stat. § 609.101, subd. 4 (2004), a district court must impose a fine of “not less than 30 percent” of that maximum fine.  But the district court may reduce that amount to not less than $50 if the convicted person qualifies for a public defender or if the district court finds on the record that the convicted person is indigent.  Minn. Stat. § 609.101, subd. 5(b) (2004).  However, this fine may not be waived altogether.  Id., subd. 5(a) (2004).

Here, the district court mischaracterized the imposition of “any mandatory minimum fines” as waived because, as the record establishes, the district court did not—and, under section 609.101, subdivision 5(a), could not—altogether waive the fine required by section 609.101, subdivision 4.  Rather, the district court acted within its discretion granted under section 609.101, subdivision 5(b), and imposed a $500 fine based on its finding that Loke is indigent.  Accordingly, the imposed fine is proper under section 609.101, subdivision 5(b), because it is less than the statutory minimum of 30 percent of the maximum fine authorized by law, but more than $50.

            Affirmed.