Opinion
No. C6-95-1920.
Filed June 25, 1996.
Appeal from the District Court, St. Louis County, File No. K994600700.
Hubert H. Humphrey, III, Attorney General, Jon C. Audette, Assistant Attorney General, (for Respondent)
Alan L. Mitchell, St. Louis County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, (for Appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
A jury convicted Salim Malik Ahmed of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1, third-degree assault in violation of Minn. Stat. § 609.223, subd. 1, terroristic threats in violation of Minn. Stat. ___.713, subd. 1, and fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1. On appeal, Ahmed argues the evidence is insufficient to support his convictions because the trial court erred in: (1) admitting the out-of-court identifications of three witness; and (2) allowing two of those witnesses to identify him in court. We affirm.
Decision
Evidence is sufficient to support a conviction if, given the facts in the record, a jury could reasonably find the defendant committed the crimes of which he or she was convicted. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). When reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the defendant's conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We will reverse a conviction because of admission of eyewitness identification at trial following a photographic line-up only when the line-up procedures were "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). This standard applies also to the admissibility of testimony regarding out-of-court identifications. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381 (1972).
I.
Four days after the assault, two victims and the alleged accomplice identified Ahmed in a photographic line-up. After a Rasmussen hearing, the trial court ruled the state could introduce testimony of all three identifications. Ahmed argues the trial court erred by allowing the victims' testimony because they did not unequivocally identify him as their assailant. However, a witness need not positively identify a defendant, but may express a belief, opinion, or judgment about the offender's identity. See State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985) (stating this rule and noting a witness's testimony that the defendant resembled one of the attackers supported the defendant's conviction); State v. Comparetto, 292 Minn. 425, 427 n. 8, 193 N.W.2d 626, 628 n. 8 (1971) (quoting the rule as stated in State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 660 (1971), and deciding the victim's trial testimony that she thought the defendant was one of her attackers, but "was never positive" of the identification, supported a conviction); cf. State v. Harris, 405 N.W.2d 224, 227-28 (Minn. 1987) (allowing testimony that a witness was "kind of sure, pretty sure" that the defendant was one of the people involved in a crime to corroborate accomplice testimony). In addition, Ahmed makes no allegations that the police employed improper procedures in obtaining these identifications. Under these circumstances, the trial court properly admitted the testimony.
Ahmed also argues the pretrial identification made by the alleged accomplice resulted from impermissibly suggestive procedures. But Ahmed waived his right to object to the basis for the out-of-court identification because his own counsel elicited this information regarding the procedures leading to the identification at trial.
This witness did not identify Ahmed at trial.
See Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (stating a party waives any evidentiary error by introducing the evidence itself). The prosecutor did not question any witnesses on the identification except to rebut the defense counsel's implications made by his introduction of the procedure evidence. Given these facts, Ahmed cannot now claim the trial court erred in its Rasmussen ruling.
II.
Two of the witnesses also identified Ahmed at trial. Because Ahmed made no objection to the procedures used to elicit these identifications, we need not review his argument that they resulted from something other than the witnesses' recollection of the incident. See State v. Landro, 504 N.W.2d 741, 746 (Minn. 1993) (holding an issue to which a party does not object at trial, and which does not involve plain error affecting substantial rights or an error of fundamental law, is waived on appeal), cert. denied, 114 S.Ct. 1059 (1994).
Even if review were proper, the procedures were not impermissibly suggestive. The record shows: (1) although Ahmed was the defendant and the only African-American male in the courtroom when the witnesses identified him, his trial counsel did not request a special seating arrangement and addressed the circumstances in his closing argument; and (2) defense counsel presented the jury with all of the negative factors affecting the accuracy of the identifications. See United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991) (stating that identifications made when the defendant is the only African-American male in a courtroom at the time of identification generally are not impermissibly suggestive); State v. Maloney, 295 Minn. 262, 266, 204 N.W.2d 202, 205 (1973) (quoting State v. Sutton, 272 Minn. 399, 402, 138 N.W.2d 46, 48 (1965), for the proposition that the jury determines believability and the persuasive force of identification testimony). Given the propriety of the trial court's rulings, the identifications and testimony of the witnesses provide adequate support for Ahmed's convictions. See State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969) (acknowledging a verdict may be based on the testimony of a single witness).
Affirmed.