Opinion
No. CX-99-326.
Filed November 16, 1999.
Appeal from the District Court, Hennepin County, File No. 98-058647.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Albert Jones challenges his conviction for second-degree aggravated robbery, claiming the trial court erred in refusing to instruct the jury on his alibi defense and in ruling that he could be impeached with a prior conviction for second-degree assault. Because the trial court did not abuse its discretion, we affirm.
DECISION
I. Jury Instruction
Jones argues that the trial court erred in refusing to give his requested instruction on alibi, which was modeled after the federal pattern instruction. The federal courts require an alibi instruction if any evidence, including the weak and incredible, is offered concerning alibi. United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir. 1990); United States v. Webster, 769 F.2d 487, 490 (8th Cir. 1985).
As a general matter, Minnesota courts have refused to instruct on particular kinds of evidence, concluding that singling out a category of evidence tends to emphasize it and to "inject argument into the judge's charge." State v. Olson, 482 N.W.2d 212, 215 (Minn. 1992) (citation omitted). While acknowledging a defendant's right to instruction on his theory of the case, the Minnesota Supreme Court has held that it is enough if the substance of the defendant's request is contained in the court's charge. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977), cert.denied 435 U.S. 996 (1978).
In this instance, Jones presented an alibi witness who testified that he had spent the day with her. The substance of Jones's requested alibi instruction was included in the trial court's overall instructions. Further, the defense argued alibi in its closing argument. Thus, the trial court did not abuse its discretion by refusing to give a specific instruction on alibi. See State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).
II. Impeachment Ruling
Jones argues that the trial court erred by ruling that he could be impeached with a conviction of aggravated assault entered one week prior to trial. The court's ruling that the state could offer evidence of the conviction prompted Jones to decide not to testify.
The credibility of a witness may be attacked by showing a conviction for either a crime of dishonesty or false statement, or for a conviction, punishable by imprisonment for more than one year, if the probative value outweighs the prejudicial effect. Minn.R.Evid. 609(a)(2). The theory is that the impeaching statements "allow the jury to see `the whole person' and therefore permit the jury to better judge the truth of the defendant's statements." State v. Ford, 381 N.W.2d 30, 33 (Minn.App. 1986) (quoting State v. Broulliette, 286 N.W.2d 702, 707 (Minn. 1979)), review denied (Minn. Mar. 27, 1986).
In deciding whether to allow the use of a conviction that is not for dishonesty or false statement, the trial court should weigh the following factors: (1) the impeachment value of the prior conviction; (2) the date of the conviction and defendant's subsequent history; (3) the similarity of the prior conviction to the current offense; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). No one factor is determinative; rather, the trial court considers all of them to determine if the prejudicial effect outweighs the probative value. Ford, 381 N.W.2d at 33.
Using this analysis, the prior conviction for assault has less bearing on veracity than other crimes. The assault conviction is recent and is for a crime that occurred in 1993, still fairly recent. Assault is not similar to aggravated robbery, which supports the use of the conviction; a jury is more likely to use the conviction improperly as substantive proof, rather than impeachment, when the crimes are similar. See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). While use of the assault conviction caused Jones to decide not to testify, another witness presented Jones's version of events to the jury. Id. Finally, because the issue before the jury was basically one of identity, which is a matter of weighing Jones' credibility against that of other witnesses, the need to use impeachment is greater. Id. Under these circumstances, the trial court's ruling was not an abuse of discretion.
III. Suppression of Photographs
Jones has filed a pro se brief alleging that a Polaroid photo taken of him in public by Minneapolis police constitutes an illegal seizure, which requires that all identification procedures be suppressed.
The Polaroid picture taken of Jones was not used for identification purposes; rather, Bloomington police compiled a photo line-up using a prior booking photograph. Even had the Polaroid been used, "a person's facial characteristics are `constantly exposed to the public' and therefore * * * merely taking a person's picture does not constitute a search." State v. Seefeldt, 292 N.W.2d 558, 560 n. 1, (Minn. 1980) (quoting United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771 (1973)) (citation omitted).