State of Minnesota, Respondent, vs. Alvin Butcher, Appellant.

State of Minnesota, Respondent, vs. Alvin Butcher, Appellant. A06-1580, Court of Appeals Unpublished Decision, December 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1580

 

State of Minnesota,
Respondent,
 
vs.
 
Alvin Butcher,
Appellant.

 

 

 

Filed December 11, 2007

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 06004977

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
 
Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
 
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

  U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction of first-degree aggravated robbery, appellant argues that the district court erred in refusing to exclude the victim's identification of appellant as the robber because the identification, which was based on a suggestive show-up, was unreliable.  The record supports the district court's finding that the victim's identification of appellant was reliable considering the totality of the circumstances.  We affirm. 

FACTS

Between 6:00 and 7:00 p.m. on the evening of January 23, 2006, 14-year-old S.T. boarded a northbound light rail train.  S.T. was headed to his sister's house to catch a ride with her to a basketball game later that night.  When the train stopped at Lake Street, appellant Alvin Butcher boarded and shared a car with S.T.  At Franklin Avenue, S.T. alit from the train and headed down the platform when appellant called him from behind, inquiring whether S.T. had any matches to light a cigarette.  S.T. responded that he did not and continued from the platform en route to his sister's house. 

After he left the light-rail station, S.T. glanced over his shoulder and observed appellant -- clothed in a black winter cap, black jacket, and black jeans -- still following him.  S.T. sped up, but appellant grabbed the hood of his sweatshirt, pulling S.T. back toward him, and brandished a knife that he held to S.T.'s face.  Appellant demanded money, which S.T. said he did not have.  S.T. thought he smelled alcohol on his assailant's breath, and he also noticed a cut or scratch on the left side of appellant's face near his nose.   

Appellant again demanded money, which S.T. repeated he did not have.  Angered, appellant threatened:  "You better not be lying to me, or I'll cut you in your face."  Appellant then snatched a winter headband from S.T.'s head, and ordered S.T. to empty his pockets.  S.T. did as he was told, placing his water bottle and basketball schedule on the ground.  Appellant demanded that S.T. pick up and open the water bottle and, as S.T. bent to do so, appellant punched him hard in the ribs.  Appellant then instructed S.T. to hand him the water bottle and warned S.T. that if he ever told anyone about the encounter, appellant would "find [him] and kill [him]."  Appellant subsequently walked away toward 24th Street. 

S.T. returned to the better-lit platform area hunched over and sought help from a passerby who verified that his injuries were not serious and assisted him to a nearby shelter where S.T. immediately contacted the police.  Metro Transit Police Officer Leonard Keyes was within eyesight of the Franklin Avenue light-rail station when the call came in from dispatch that a robbery of a person had occurred near that location only minutes before.  Officer Keyes immediately continued to the location and began searching the area for the suspect, who was described as wearing a black hat, black jacket, and black pants.  He observed only three individuals in the area, all walking southbound together toward 24th Street.  The person in the middle of the threesome matched the given description and was limping severely, apparently supported on each side by the other two individuals.  He wore a black hat, black jacket, and black pants. 

Officer Keyes stopped the three individuals and identified the injured person as appellant.  After checking appellant's identification information, Officer Keyes arrested him for an outstanding warrant.  Appellant was subsequently handcuffed and placed in the back of Keyes's marked Metro Transit squad car.

            Metro Transit Officer Steven Bakeberg also responded to the same dispatch regarding the robbery.  While Officer Keyes interviewed appellant, Officer Bakeberg took statements from the other two individuals.  Officer Bakeberg then drove a short distance away to make contact with the victim.  By the time Bakeberg arrived and sat down to take a statement from S.T., less than 15 minutes had passed since the incident occurred.  S.T. told Officer Bakeberg what happened and gave him a description of the suspect, which matched appellant; "Native American-looking," black hat, black jacket, and black pants.  Knowing that Officer Keyes was still with appellant, Officer Bakeberg told S.T. that his partner, Officer Keyes, was "out with the person that would match the description."  Officer Bakeberg asked if S.T. "would be willing to come back and look at this person and see if it was the person who just robbed him."  When S.T. agreed, Officer Bakeberg drove S.T. to meet Officer Keyes and appellant.  There was no conversation during the short trip to view appellant.

            Officer Bakeberg pulled up behind Officer Keyes's marked squad car.  Because it was getting dark, Officer Bakeberg shone his spotlight toward the car, and Officer Keyes had the now-handcuffed appellant get out of the car into the light.  S.T. identified the suspect before Officer Bakeberg could even ask a question.  Specifically, Officer Bakeberg testified that:  "Without me asking him, without me prompting him in any way, [S.T.] said, ‘That's the guy.  That's the guy who just robbed me.'" 

            Appellant was charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2006).  He pleaded not guilty to the charge and opted to proceed to trial.  At the contested omnibus hearing, appellant moved to suppress evidence of S.T.'s pretrial identification on the basis that the evidence was the product of an unnecessarily suggestive one-person show-up and, therefore, violative of appellant's right to due process.  The motion to suppress was denied based on the district court's analysis of the totality of the circumstances as outlined in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972).   

             The jury found appellant guilty of first-degree aggravated robbery.  Appellant received the presumptive sentence of 84 months in prison.  This appeal followed.

D E C I S I O N

              Appellant argues that the district court erred in refusing to exclude the victim's identification of appellant as the robber because the identification, which was based on an unnecessarily suggestive show-up, was unreliable.  "[R]eliability is the linchpin in determining the admissibility of identification testimony . . . ."  Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977).  If the police utilize a procedure "tainted by suggestion," the result may be an unreliable and potentially irreparable misidentification thereby violative of the defendant's due process rights.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  Reliability, then, is determined by considering the facts of each case using the two-prong analysis first articulated in Neil v. Biggers, 409 U.S. 188, 196-200, 93 S. Ct. 375, 381-82 (1972), and later adopted by the Minnesota Supreme Court in State v. Bellcourt, 251 N.W.2d 631, 633 (Minn. 1977).

            This court has summarized the analysis set forth in Biggers as follows:

            The two-question test is:

 

1)                 Were the pretrial identification procedures unnecessarily suggestive; that is, did they unfairly single the defendant out for identification?

 

2)                 If the procedures were suggestive, did the witness's in-court identification have an adequate independent origin so as to negate or reduce the likelihood of misidentification?  This question involves consideration of the following factors:

 

a.                  the opportunity of the witness to view the criminal at the time of the crime;

 

b.            the witness's degree of attention;

 

c.                  the accuracy of the witness's prior description of the criminal;

 

d.                  the level of certainty demonstrated by the witness at the [show-up];

 

e.            the length of time between the crime and the [show-up].

 

Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988) (citing Biggers, 409 U.S. at 199-200, 93 S. Ct. at 380-83).  This test is equally applicable in determining the reliability of evidence produced by a pretrial identification procedure such as a show-up.  Biggers, 409 U.S. at 199, 93 S. Ct. at 382.  Like all evidentiary rulings, the admissibility of identification evidence "rest[s] within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

            Appellant argues that the show-up procedure by which the victim identified appellant as the man who robbed him was unnecessarily suggestive.  We agree.  It is well established that one-person show-ups "are permissible identification tools."  State v. Hazley, 428 N.W.2d 406, 410 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988).  The Minnesota Supreme Court has consistently rejected the argument that one-person show-ups are impermissibly suggestive per se.  See, e.g., Taylor, 594 N.W.2d at 161-62; State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983); State v. Gutberlet, 346 N.W.2d 639, 642 (Minn. 1984) (delineating a trend of Minnesota cases denying suppression of identifications produced by one-person show-ups and noting that Biggers involved a permissible one-person show-up).  Thus, the Biggers analysis is used to determine whether the independent reliability of an identification warrants its admission although it was gleaned from an otherwise tainted procedure.

            The first prong of the Biggers test contemplates whether the pretrial identification procedure was unnecessarily suggestive.  409 U.S. at 199-200, 93 S. Ct. at 382.  This inquiry analyzes "whether the defendant was unfairly singled out for identification."  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  Here, the district court intimated that the show-up employed by Officers Keyes and Bakeberg was unnecessarily suggestive because the officers singled out appellant from the general population based solely on the victim's description of the robbery suspect, then presented appellant handcuffed and under spotlight as he emerged from the back of a marked squad car for the victim's identification.  See Taylor, 594 N.W.2d at 162 (postulating that a hypothetical scenario with facts identical with the instant case would constitute an unnecessarily suggestive identification procedure). 

            We agree with the district court's analysis.  The situation in which S.T. identified appellant did not fairly portray appellant as a man who was presumed to be innocent; he was handcuffed and in police custody in the rear seat of a Metro Transit squad car, and was then singled out beneath a powerful police spotlight.  Each of these factors individually is suggestive of guilt, and in the aggregate even more so.

            After taking S.T.'s statement shortly after the robbery, Officer Bakeberg told S.T. that his partner was "out with the person that would match the description" S.T. had given.  Officer Bakeberg then asked S.T. whether he "would be willing to come back and look at this person and see if it was the person who just robbed him."  Although Officer Bakeberg neither referred to this individual as a suspect nor hinted at his involvement in the robbery, Bakeberg did tell S.T. that the person who they were going to view would "match the description" of the robber.  Implicit in this statement is the suggestion that the police had found an individual in the area who they believed was S.T.'s assailant, and were now calling for S.T.'s confirmation.  Officer Bakeberg insinuated that S.T. was no longer responsible for deciding on his own whether or not appellant matched the description of the robber.  Because appellant was unfairly singled out for identification by the one-person show-up technique and by Officer Bakeberg's implicitly suggestive remark, we conclude the procedure was unnecessarily suggestive under Biggers.

            Having said that, the totality-of-the-circumstances approach "permits admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability."  Brathwaite, 432 U.S. at 110, 97 S. Ct. at 2551.  Here, the district court's analysis of the second prong of the Biggers test was dispositive in its denial of appellant's motion to suppress S.T.'s pretrial identification.  Applying the five factors, the district court found that:

The first factor is the opportunity of the witness to view the suspect at the time of the crime.  Here, according to the testimony elicited at the suppression hearing, the alleged victim had a sufficient opportunity to view the perpetrator during the commission of the crime.  The crime itself lasted for quite some period of time involving initially a demand for money, later a demand that the alleged victim empty his pockets and included the actual taking by the perpetrator of a couple of items of personal property of the alleged victim.  So in terms of the first factor, that weighs against exclusion of the show-up in this case.

 

            The second factor is the witness's degree of attention.  Here, according to the information adduced at the Rasmussen Hearing, given the length of the event, the alleged victim had a high degree of attention and was able to provide a description of the perpetrator in this case.

 

            The third factor is the accuracy of the witness's prior description of the suspect, and here the alleged victim described the clothing of the suspect and there was no substantial difference between the description given by the alleged victim at the time the description was given and appearance of the suspect after he was apprehended.

 

            The fourth factor is the level of certainty demonstrated by the witness at the time of the show-up and in this case, according to the testimony of the officer, the alleged victim . . . was very certain about the identification of the Defendant and identified the Defendant before he was asked any questions by the officer bringing him to the scene.

 

            The fifth factor is the time between the alleged offense and the show-up and in this case a very short amount of time had elapsed between the crime and the show-up of the Defendant.

 

The district court found that S.T.'s identification of appellant had "an adequate independent origin and is reliable."

The record supports the district court's findings.  S.T. witnessed appellant in two contexts prior to the robbery.  First, the two shared a light rail car between Lake Street and Franklin Avenue, where each disembarked.  Second, appellant inquired whether S.T. had matches when they were each on the platform, walking away from the train.  The extended face-to-face encounter during appellant's commission of the robbery was the third context in which S.T. interacted with appellant.  S.T.'s ability to place the suspect in each of these contexts, first in the light rail car, second on the platform asking for a light, third during commission of the charged infraction, fourth during the show-up, and finally at trial substantiates the veracity of S.T.'s account of events as well as bolsters the reliability of the positive identification of appellant.  The separate instances in which the victim was able to repeatedly observe and identify the suspect increased the reliability of S.T.'s identification.

The record reflects that S.T. was attentive during the robbery, and was able to recount the repeated threats appellant made, the scar or cut on his face, the smell of alcohol on his breath, and the direction in which appellant fled following the crime.  Although he was 14, he demonstrated poise in retaining such detail.

Next, S.T. spoke with conviction and was certain in his identification of appellant, shouting, "That's the guy.  That's the guy who just robbed me," without any prompting from the police.  He neither stammered nor waffled, but rather he clearly confirmed that appellant was the perpetrator.

Finally, the show-up took place a mere 15 minutes and roughly 100 yards from the robbery's occurrence.  In Biggers, the Court found reliability although seven months had passed.  Here, only a quarter of an hour separated the commission of the crime from S.T.'s identification of the suspect.  We conclude that considering the totality of the circumstances, the district court did not err in finding that S.T.'s identification of appellant was reliable.

Appellant argues that Minnesota should adopt a per se rule of inadmissibility regarding identifications rendered by show-ups[1], or, in the alternative, to admit such evidence only when then-existing exigent circumstances require the use of such techniques.  The Minnesota Supreme Court rejected this argument.  S.T.'s identification of appellant had an adequate independent origin, despite some glaring defects on the street. See Taylor, 594 N.W.2d at 161-62; Griffin, 336 N.W.2d at 524; Gutberlet, 346 N.W.2d at 642 (delineating a trend of Minnesota cases denying suppression of identifications produced by one-person show-ups). 

Affirmed.

[1] We recognize that "show-up" and "eye-witness identification" may not be as compelling and fault-free as laymen and crime scene television shows make it out to be.  There are reams of legal literature setting out the weaknesses and chances for misidentification in show-up/eyewitness testimony.  But it cannot be said that it is never not relevant, or at least as relevant as the vast array of evidence that does come in under the broad tent of "relevance." The weaknesses and the possibilities of error, like other evidence, are not an argument that there should be an inflexible bar to its admission.  Rather, its weaknesses, like all other evidence, are the job of defense counsel to point out to the jury and exploit.