Opinion
No. C0-96-2135.
Filed September 23, 1997.
Appeal from the District Court, Ramsey County, File No. K296267.
Hubert H. Humphrey, III, State Attorney General, and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, (for Appellant)
Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant contends that the trial court erred when it (a) refused to suppress identification evidence and (b) permitted impeachment through the use of a prior criminal conviction. We affirm.
FACTS
In November 1995, a young man robbed a grocery store after punching the cashier. Two customers, who had just left the store, witnessed the man run out of the store. One saw him take the money. The other had seen him earlier in the checkout line and ran after him when alerted about the robbery; he lost sight of the robber after he turned a corner. Both customers had also seen the man earlier in a car parked in front of the store.
A month later, police received information that appellant was a possible suspect. Based on the appellant's physical features, a police computer generated two photo line-ups, consisting of six men with similar features. Except that one line-up was black and white and one was in color, the line-ups were identical in composition.
A police officer showed the photo line-ups to four witnesses, the two customers and two cashiers. Both customers positively identified appellant as the man who robbed the grocery store. Each stated, during separate identifications, that the man in photo number five looked like the robber, but without braids. The officer covered the braids. With the braids covered, both identified man number five, the appellant. The cashiers could not positively identify appellant in the line-up photos. Both stated that persons number two and five looked like the robbery suspect, but that the robber did not have braids. Once the braids on appellant were covered, by the officer and by one of the cashier witnesses, both cashiers stated number five, the appellant, most resembled the suspect.
After the prosecutor brought robbery changes against him, appellant moved to suppress the witness identifications on the ground that the photo line-up procedure was impermissibly suggestive. The trial court denied appellant's motion. Appellant also asked the court to prohibit the use of his 1993 robbery conviction for impeachment purposes if he chose to testify. The court found the prior conviction admissible for impeachment.
At trial, a friend of appellant's testified on his behalf. Appellant's friend stated he was with appellant during the hours of the robbery and that appellant had not gone to the grocery store that night. Appellant did not testify. Following a jury trial, appellant was found guilty of aggravated robbery and sentenced to the presumptive term of 68 months.
DECISION 1. Photo line-up
When identification evidence is challenged on appeal, the reviewing court must determine whether the 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). To determine whether an identification procedure is constitutional, we are to ask: (1) whether the procedure unnecessarily singled out the defendant for identification; and (2) whether identification was reliable, under the totality of the circumstances, despite the suggestive nature of the identification procedure. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).
In this case, the photo identification procedure was not impermissibly suggestive. The photo line-ups contained six pictures, including five men with features similar to appellant. One line-up was in black and white and the other in color. Both were identical in composition. Appellant had braids in the photo but another person was also pictured in braids. Nothing called special attention to appellant.
Appellant argues that because the officer covered the braids in his photo, the officer's actions were impermissibly suggestive. But in every instance where the officer covered the braids on appellant's photo, the witnesses had already singled out appellant as resembling the robber. And in one instance, the witness covered the braids of appellant to determine if he was the suspect. See State v. Givens , 356 N.W.2d 58, 63 (Minn.App. 1984) (holding photo line-up was not impermissibly suggestive even though defendant was the only individual who had gray in his hair), review denied (Minn. Jan. 2, 1985); cf State v. Lindahl, 309 N.W.2d 763, 765 (Minn. 1981) (finding photo line-up containing two pictures of defendant to be impermissively suggestive).
Even if the line-up procedure were suggestive, the customer witnesses' opportunity for observation provided them with adequate independent origin for the identification. In determining the likelihood of misidentification, the court considers five factors: opportunity to view the defendant; degree of attention; accuracy of prior description of the criminal; the level of certainty demonstrated at the confrontation; and length of time between the crime and the confrontation. State v. Hicks , 380 N.W.2d 869, 872 (Minn.App. 1986). Here, both customers saw appellant before, during, and after the robbery. The suspect was not masked or wearing a disguise. None of the customers were placed in danger at the time they saw appellant. Additionally, each customer independently and positively identified the robber when compared to five other men with similar features.
Appellant argues that because the witnesses identified the appellant as the suspect nearly one month after the crime, the identification was unreliable. This assertion is unsupported. See State v. Webber , 292 N.W.2d 5, 11 (Minn. 1980) (holding photo lineup 33 days after the crime was a significant lapse but did not render the identification unconstitutional); State v. Dillard , 355 N.W.2d 167, 174 (Minn.App. 1984) (holding photo line-up seven months after crime was a substantial lapse but did not render identification unconstitutional where several witnesses identified defendant and witnesses were available for cross-examination), review denied (Minn. Oct. 30, 1984).
2. Impeachment
On appeal, the trial court's evidentiary rulings must be affirmed unless a clear abuse of discretion is shown. State v. Grayson , 546 N.W.2d 731, 736 (Minn. 1996). When determining the admissibility of a prior conviction for impeachment, the court must determine whether the probative value outweighs the prejudicial effect. Minn.R.Evid. 609(a). Probative considerations include the impeachment value of the prior conviction, the date of the conviction, and the defendant's subsequent history. State v. Jones , 271 N.W.2d 534, 537-38 (Minn. 1978). The prejudicial value is measured by examining the similarity of the past crime with the charged crime and the importance of the defendant's testimony. Id.
The trial court did not abuse its discretion in allowing appellant's prior conviction to be used for impeachment purposes. See State v. Ford , 381 N.W.2d 30, 32-33 (Minn.App. 1986) (finding prior conviction of the same crime for purposes of impeachment admissible because it "allowed the jury to see the `whole person'"), review denied (Minn. Mar. 27, 1986). We observe that the 1993 robbery provided limited impeachment value and was somewhat prejudicial in light of the similarity of the crimes. But appellant's prior conviction was relatively recent and the importance of appellant's testimony was diminished because his theory of the case went to the jury by way of an alibi witness and a challenge to the eyewitness identification. See Hicks , 380 N.W.2d at 874 (finding defendant not chilled from presenting his case because his theory went before the jury, notwithstanding his election not to take the stand); see also State v. Gassler , 505 N.W.2d 62, 68 (Minn. 1993) ("[T]he mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense.").
3. Sufficiency of evidence
In reviewing a challenge to the sufficiency of the evidence to support a jury's verdict of guilty, an appellate court will examine the evidence in the light most favorable to the verdict to determine if it was sufficient to permit the jury, acting with due regard for the need to overcome the presumption of innocence by proof beyond a reasonable doubt, to reach the verdict it did. State v. Arrendondo , 531 N.W.2d 841, 844 (Minn. 1995). Generally, a witness must have an opportunity for accurate observation. State v. Gluff , 285 Minn. 148, 151, 172 N.W.2d 63, 65 (1969). But there is no statutory or constitutional requirement for corroboration of a complainant's testimony. State v. Burch , 284 Minn. 300, 313-14, 170 N.W.2d 543, 552 (1969).
Two witnesses positively identified appellant as the grocery store robber. Any inconsistencies in testimony are no more than an attack on credibility, a matter for the jury. State v. Poganski , 257 N.W.2d 578, 581 (Minn. 1977) (concluding the jury could choose to believe the testimony of two witnesses against the defendant even though their testimony was inconsistent and contradictory). The fact that the two cashiers were unsure of their identification and could not offer an opinion at trial takes away nothing from the jury's ability to decide identification by reference to other evidence. Hicks , 380 N.W.2d at 873 (stating the fact that an eyewitnesses is unable to identify the defendant, does not mean he is innocent). The jury had a sufficient basis for their determination of guilt.