Opinion
No. 43669.
August 10, 1973.
Criminal law — trial — identification evidence — sufficiency — waiver of claim of error.
Appeal by Gary Hanley Nordin from a judgment of the Hennepin County District Court, Tom Bergin, Judge, whereby he was convicted of burglary. Affirmed.
C. Paul Jones, State Public Defender, for appellant.
Warren Spannaus, Attorney General, George M. Scott, County Attorney, and Theodore R. Rix, Vernon E. Bergstrom, and Michael McGlennen, Assistant County Attorneys, for respondent.
Considered en banc without oral argument.
Defendant appeals from a conviction for burglary in violation of Minn. St. 609.58, subd. 2(3). He contends (1) the evidence of identification was insufficient because the testimony of two eyewitnesses was untrustworthy and unreliable; and (2) testimony that the witnesses had selected one of five photographs shown them by the police impermissibly disclosed to the jury that defendant had a prior criminal record.
1. Both eyewitnesses testified that they had had an adequate opportunity to observe one of the burglars whom they positively identified as defendant. The escape vehicle was registered in defendant's name. The jury was not compelled to accept defendant's alibi evidence, and the person he claimed was using his car did not testify.
2. Defendant did not object to any of the identification testimony and in taking the stand disclosed two prior convictions, thereby rendering moot the issue of whether the reference to identification from photographs was improper. By attacking the credibility of the identification testimony on cross-examination without objecting to its introduction, defendant waived his right to claim that it was erroneously received. State v. Anderson, 294 Minn. 557, 201 N.W.2d 859 (1972); State v. Clark, 286 Minn. 419, 176 N.W.2d 123 (1970).
Affirmed.
MR. JUSTICE SCOTT took no part in the consideration or decision of this case.