Opinion
No. C9-00-406.
Filed January 16, 2001.
Appeal from the District Court, Hennepin County, File No. 99065463.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, (for respondent)
Lawrence Hammerling, Deputy State Public Defender, Marie Wolf, Assistant State Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this appeal from convictions of two counts of second-degree assault and one count of being a felon in possession of a handgun, appellant Gordon David Reese argues that the show-up identification procedure used was impermissibly suggestive. We affirm.
FACTS
Reese was charged by complaint with two counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998), and one count of being a felon in possession of a handgun in violation of Minn. Stat. § 624.713, subd. 1(b) (1998), following the shooting of two men in Minneapolis.
At approximately 1:15 p.m. on July 5, 1999, Patricia Soulak was helping a friend remodel his bathroom in an upstairs duplex on Chicago Avenue. Soulak heard two loud sounds outside. She went to the window facing Chicago Avenue and saw from behind two men arguing with someone she could not see. Soulak then heard two more loud sounds. As the two men with their backs to her turned around, she saw one man holding a gun and saw both men's faces. She described the men as dark-skinned with black hair. Soulak saw that the man carrying the gun was wearing a dark-print shirt and dark pants. She observed this incident for more than a minute and a half. Both Soulak and her friend then saw the men get into a vehicle that they described as a sports utility vehicle with dealer-type plates with red lettering.
The police had been called, and Soulak told one of the officers who responded to the call that the men she saw get into the sports utility vehicle were Native Americans, and they had driven north on Chicago Avenue. Twenty minutes later, the police pulled over a vehicle that fit the description provided by Soulak and her friend. Soulak was brought to the scene of the arrest between 2:00 and 2:30 p.m. The police had the three men who were in the vehicle when it was stopped walk in front of Soulak, one at a time. Soulak identified appellant as the man who was holding the gun, identified one of the other men as the other man from the shooting, and said she had not seen the third man. Soulak said that she was 99% certain that appellant was the man with the gun.
Before trial, appellant moved to suppress Soulak's identification of him as the shooter. The trial court denied appellant's motion. After a jury trial, appellant was found guilty of two counts of second-degree assault and one count of felon in possession of a handgun.
DECISION
Appellant argues that the three-person show-up procedures used were unnecessarily suggestive, and, under the totality of the circumstances, there was a substantial risk of misidentification.
A reviewing court must "determine whether the identification 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) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254 (1977)). We employ a two-part test in determining whether pretrial identification evidence is admissible. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). First, we determine whether the identification procedure was "`unnecessarily suggestive.'" Id. (quoting State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995)). "Included in that inquiry is `whether the defendant was unfairly singled out for identification.'" Id. (quoting Ostrem, 535 N.W.2d at 921) (emphasis in original). One-person show-ups are not unnecessarily suggestive per se. Id. at 161-62; State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983). Second, if we find that the identification procedure was unnecessarily suggestive, we must then determine whether the identification caused "`a very substantial likelihood of irreparable misidentification.'" Taylor, 594 N.W.2d at 161 (citation omitted).
Appellant argues that the show-up identification was unnecessarily suggestive because the police told Soulak that they thought they had the suspects and brought her to the location where the men were being held, handcuffed, in squad cars. She could see that the police had stopped a car that she believed was the car she had seen.
The trial court agreed that the presence of the car the police had stopped made the show-up identification unnecessarily suggestive. But the court concluded that this suggestiveness was mitigated by the fact that appellant was one of three suspects who came from the back of a squad car and stood in front of Soulak, and the police did nothing that suggested which one of the three men would be the shooter. We agree.
Even though the show-up was unnecessarily suggestive, there is not a very substantial likelihood that irreparable misidentification occurred. To evaluate the likelihood of irreparable misidentification, we must consider five factors:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972); see also McDuffie v. State, 482 N.W.2d 234, 236-37 (Minn.App. 1992) (upholding one-person show-up based on analysis of five factors from Biggers), review denied (Minn. Apr. 13, 1992).
Soulak viewed appellant from an upstairs window during daylight hours as he stood on the street outside the window. Soulak focused on the two men for a minute and a half. Appellant matched the general description Soulak initially gave to police. Soulak's identification of appellant was instantaneous and unprovoked, and she stated that she was 99% certain of her identification. Furthermore, Soulak distinguished among the three men in the show-up; she identified appellant as the man with the gun, another man as the man with appellant, and did not recognize the third man. Finally, the show-up was conducted approximately one hour after the crime. See State v. Lloyd, 310 N.W.2d 463, 464 (Minn. 1981) (show-up conducted moments after defendant's arrest for robbery reliable); State v. Roehl, 409 N.W.2d 44, 46 (Minn.App. 1987) (show-up reliable when conducted 20 minutes after witness of break-in gave name and physical description of suspect); State v. Nunn, 399 N.W.2d 193, 195-96 (Minn.App. 1987) (show-up reliable when conducted within one hour of robbery), review denied (Minn. Mar. 13, 1987). The trial court properly ruled the show-up identification admissible. McDuffie, 482 N.W.2d at 236-37 (show-up identification admissible where robbery victim had opportunity to view suspect, gave matching description of suspect, identified suspect with certainty, and suspect was apprehended within one-half hour of robbery in victim's neighborhood); State v. Hazley, 428 N.W.2d 406, 410 (Minn.App. 1988) (show-up identification admissible where suspects were paraded one-by-one in front of squad car containing robbery victims where victims provided earlier matching descriptions of suspect and suspect's vehicle license plate number and suspect was apprehended soon after crime), review denied (Minn. Sept. 28, 1988).
Appellant also argues that the Minnesota Constitution should be construed as providing greater protection against suggestive identification procedures than the Supreme Court has provided under the federal constitution.
The fundamental rule that appellate courts generally will not decide issues that are raised for the first time on appeal applies even when the issues consist of allegedly unconstitutional criminal procedures. State v. Merrill, 274 N.W.2d 99, 109 (Minn. 1978); State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976). Because appellant did not raise the state constitutional issue before the trial court, we decline to address the issue on appeal. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to apply Minnesota Constitution "because the question of its applicability was neither adequately briefed nor litigated").