This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ricky James Bedell,
Filed December 17, 2012
Reversed and remanded
Chisago County District Court
File No. 13-CR-11-809
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janet Reiter, Chisago County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Center City, Minnesota (for appellant)
Bradford S. Delapena, Assistant State Public Defender, St. Paul, Minnesota (for
Considered and decided by Stoneburner, Presiding Judge; Larkin, Judge; and
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
In this pretrial appeal, appellant challenges the district court’s exclusion of
identification evidence. Two orders are challenged. The first suppresses evidence that
three witnesses identified respondent in a photographic lineup. The second prohibits
those witnesses from identifying respondent in court at trial. Appellant argues that the
orders critically impact its case and that the district court erred by excluding the evidence
on due-process grounds. We reverse and remand.
On August 6, 2011, a man and woman assaulted E.L. at a bar in Taylor Falls. The
police interviewed E.L. and four witnesses to the assault, K.M., I.A., G.J., and J.S.,
shortly after the incident. But formal, recorded statements were not taken from E.L. and
the witnesses at that time, because they were intoxicated. E.L. recalled getting punched
and kicked, but he was not sure whether he had been in a fight. K.M., a bartender at the
bar, told the police that the man and woman who assaulted E.L. had been kicked out of
the bar on prior occasions; she also told the police where she thought they lived. I.A. told
the police that the man punched E.L. numerous times and kicked E.L. while he was on
the ground. K.M. and I.A. were unable to positively identify either individual, but they
stated that the woman was known as “Missy.” G.J. had never seen the man and woman
before and did not know their names, but he told the police that the man had red hair and
the woman had dark brown hair. J.S. told the police that he did not see anything, did not
hear anything, and did not want to be involved.
Based on this information, the police suspected that respondent Ricky James
Bedell was involved and prepared a photographic lineup that included Bedell’s booking
photograph, in addition to the booking photographs of five other individuals. Bedell’s
photograph was number three in the lineup. The police showed E.L the lineup, and E.L.
told the police that “[n]umber three looks more familiar than anybody.” The police asked
E.L. if he was 100% certain, and he stated: “Uh, that’s the closest of what I can
remember the guy looked like, yeah, it was number three.” When asked a second time
whether he was 100% sure, E.L. stated, “No, I don’t remember, yeah, I remember the guy
was short like me and bald, had no hair, that’s all I really remember.”
The police also showed J.S. the photographic lineup. J.S. identified the individual
in photograph number three as the man who assaulted E.L. and indicated that he was
100% certain of his identification. Lastly, the police showed I.A. the lineup, and she
identified Bedell as the person who assaulted E.L.
The police did not show K.M. the photographic lineup because K.M. identified
Bedell by name prior to viewing the lineup. When the police formally interviewed K.M.,
she recalled seeing Bedell and his friend M.L. sitting at the end of the bar before the
assault. K.M. stated that she did not see Bedell kick or punch E.L. during the assault—
she said that M.L. “did all that.” But she saw Bedell swinging a chair at people in the bar
while M.L. assaulted E.L. K.M. indicated that she knew Bedell and M.L. because they
had been in the bar before and she had kicked them out on prior occasions.
Appellant State of Minnesota charged Bedell with aiding and abetting assault in
the third degree. Later, the state added a charge of aiding and abetting assault in the first
degree. Bedell moved the district court to suppress “all evidence of identity arising from
the photo line[-]up” because the lineup was “unduly suggestive.” Bedell also requested
dismissal of all counts against him for lack of probable cause. Following a hearing, the
district court ruled that “the photo lineup should be excluded.”
The district court
reasoned that although the photographic lineup was not “unduly suggestive,” the
identification evidence was not reliable in light of the totality of the circumstances. But
the district court denied Bedell’s motion to dismiss.
The state moved the district court to reconsider its order suppressing the
photographic lineup and, in the alternative, to clarify whether the three photographiclineup witnesses would be allowed to identify Bedell at trial. The district court denied
the state’s motion to reconsider, but it scheduled a hearing on the state’s motion to
clarify. Following the hearing, the district court ordered that the photographic-lineup
witnesses would not be allowed to identify Bedell at trial because there were insufficient
facts to show that their courtroom identifications would have an independent origin. This
pretrial appeal by the state follows.
Bedell argues that this court lacks jurisdiction because the state’s appeal of the
district court’s May 7, 2012 suppression order is untimely. See State v. Barrett, 694
N.W.2d 783, 785-86 (Minn. 2005) (noting that the state’s failure to timely file or serve
notice of a pretrial appeal is a jurisdictional defect). Jurisdiction presents a question of
law that an appellate court reviews de novo. See id. at 785.
To perfect a pretrial appeal, the state must appeal “within 5 days after the defense,
or the court administrator under Rule 33.03, serves notice of entry of the order to be
appealed from on the prosecutor.” Minn. R. Crim. P. 28.04, subd. 2(8). But the state
may extend its time to appeal by filing a motion for reconsideration or clarification, so
long as the motion is filed within the time allotted to appeal. See State v. Wollan, 303
N.W.2d 253, 254-55 (Minn. 1981) (motion for clarification); State v. Palmer, 749
N.W.2d 830, 831 (Minn. App. 2008) (motion for reconsideration). Once extended, the
time to appeal does not begin to run until entry of the order denying reconsideration or
providing clarification. See Wollan, 303 N.W.2d at 255.
When calculating the time to appeal, “[t]he day of the act or event from which the
designated period of time begins to run must not be included,” but “[t]he last day of the
period must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which
event the period runs until the end of the next day that is not a Saturday, a Sunday, or a
legal holiday.” Minn. R. Crim. P. 34.01. “When a period of time prescribed or allowed
is 7 or fewer days, intermediate Saturdays, Sundays, and legal holidays must be excluded
in the computation.” Id. Further, “[w]hen a party is served with a notice or other paper
by mail, three days must be added to the time the party has the right, or is required, to
act.” Minn. R. Crim. P. 34.04. “[I]ntermediate Saturdays, Sundays and legal holidays
shall be excluded under rule 34.01 before adding [three] days for service by mail.” State
v. Hugger, 640 N.W.2d 619, 625 (Minn. 2002).
The district court filed its initial suppression order on May 7, 2012. On May 8, the
district court administrator filed a notice of filing of order and “sent” a copy of the notice
to the parties, according to a handwritten notation in the bottom left-hand corner of the
notice. On May 16, the state filed its motion to reconsider or clarify. If the state was
personally served with the notice of filing on May 8, it would have been required to
appeal by May 15. But if the notice was served by mail, the state had until May 18 to file
its motion to reconsider or clarify. Bedell argues that there is no evidence in the record to
demonstrate that the state filed its motion to reconsider or clarify within the five-day
appeal period because it is unclear whether the state was served personally or by mail. In
other words, Bedell argues that the state has failed to make this court’s “jurisdiction
appear plainly and affirmatively from the record.” See State ex rel. Farrington v. Rigg,
248 Minn. 49, 50, 78 N.W.2d 721, 722 (1956) (dismissing appeal for lack of jurisdiction
where appellant failed to present proof that he served his notice of appeal on the adverse
party). We are not persuaded.
“A presumption of regularity attaches to the actions of the [district] court.” State
v. Skjefte, 428 N.W.2d 91, 94 (Minn. App. 1988), review denied (Minn. Aug. 29, 1988).
The applicable procedural rule states that “[u]pon entry of an order made on a written
motion subsequent to arraignment, the court administrator must promptly mail a copy to
each party and must make a record of the mailing.” Minn. R. Crim. P. 33.03. The
handwritten notation “sent 5-8-12” in the bottom left-hand corner of the notice of filing
of the May 7 order indicates compliance with rule 33.03, i.e., that the notice was served
by mail. Moreover, there is no evidence rebutting the presumption of regularity that
attaches to district court actions. We therefore conclude that the state timely filed its
motion to reconsider or clarify within the time allowed to extend its time to appeal.
Bedell also argues that the district court’s May 7 suppression order is not properly
before this court because the state did not timely appeal the district court’s May 25 order
denying its motion to reconsider the May 7 order. This argument is also unpersuasive.
Once again, a timely motion for reconsideration or clarification extends the time to
appeal. See Wollan, 303 N.W.2d at 254-55; Palmer, 749 N.W.2d at 831. The state
brought its motion to reconsider or clarify on May 15. Although the district court denied
the state’s motion to reconsider on May 25, it did not rule on the state’s motion to clarify
until June 29. The state served its notice of appeal on July 2.
Relevant authorities indicate that the state was not required to separately appeal
the bifurcated motions.
For example, a “prosecutor may not appeal under [Rule
28.04] until after . . . the district court has decided all issues raised.” Minn. R. Crim. P.
28.04, subd. 2(8). The rule also states that “[a]ll pretrial orders entered and noticed to the
prosecutor before the district court’s final determination of all issues raised . . . may be
included in this appeal.” Id. Moreover, piecemeal appellate review is disfavored. See
Bonynge v. City of Minneapolis, 430 N.W.2d 265, 266 (Minn. App. 1988)
(acknowledging this court’s policy against piecemeal appeals). As of May 25, when the
district court denied the state’s motion to reconsider, the district court had not yet ruled
on the state’s alternative motion for clarification and thus had not decided “all issues
raised.” Minn. R. Crim. P. 28.04, subd. 2(8). The state’s time to appeal therefore
remained tolled until the court administrator served notice of entry of the order clarifying
the district court’s May 7 order on the state. See Wollan, 303 N.W.2d at 255; Minn. R.
Crim. P. 28.04, subd. 2(8). Because the state filed its notice of appeal within five days of
the district court’s June 29 order clarifying its May 7 suppression order—the last of the
issues raised—the state’s appeal of the district court’s May 7 order is properly before us.
The state may appeal “any pretrial order” if it can establish that “the district
court’s alleged error, unless reversed, will have a critical impact on the outcome of the
trial.” Minn. R. Crim. P. 28.04, subds. 1(1), 2(1). “As a threshold matter in any pretrial
appeal by the [s]tate, the state must clearly and unequivocally show both that the [district]
court’s order will have a critical impact on the state’s ability to prosecute the defendant
successfully and that the order constituted error.” State v. Rambahal, 751 N.W.2d 84, 89
(Minn. 2008) (quotations omitted).
The state need not show that the exclusion of
evidence in a criminal prosecution destroys its case. State v. Zais, 805 N.W.2d 32, 36
(Minn. 2011). “Whether suppression of a particular piece of evidence will significantly
reduce the likelihood of a successful prosecution depends in large part on the nature of
the state’s evidence against the accused.” State v. Zanter, 535 N.W.2d 624, 630 (Minn.
Bedell concedes that the district court’s orders satisfy the critical-impact standard.
We agree. The state’s case relies heavily on E.L.’s, J.S.’s, and I.A.’s identification of
Bedell as one of the individuals who physically assaulted E.L.
They are the only
witnesses who claim to have seen Bedell physically assault E.L. Although K.M. reported
that Bedell was present while M.L. assaulted E.L., K.M. did not see Bedell kick or punch
E.L. Thus, the state’s case is much weaker without the identification testimony of E.L.,
J.S., and I.A., and the district court’s orders significantly reduce the likelihood of a
successful prosecution. The critical-impact test therefore is satisfied. See Zais, 805
N.W.2d at 36 (concluding that exclusion of the testimony of the only eyewitness to the
defendant’s conduct critically impacted the state’s ability to prosecute him).
The admission of pretrial-identification evidence violates due process if the
procedure “was 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). Courts apply a two-part test to determine whether
pretrial-identification evidence must be suppressed. State v. Ostrem, 535 N.W.2d 916,
921 (Minn. 1995). First, the court must determine whether the pretrial-identification
procedure was unnecessarily suggestive, which “turns on whether the defendant was
unfairly singled out for identification.” Id. Second, “[i]f the procedure is found to be
unnecessarily suggestive, the identification evidence may still be admissible as long as
‘the totality of the circumstances establishes that the evidence was reliable.’” State v.
Young, 710 N.W.2d 272, 282 (Minn. 2006) (quoting Ostrem, 535 N.W.2d at 921).
Similarly, “[a]n identification based on an impermissibly suggestive photospread
may taint a future in-court identification unless there are facts to show the courtroom
identification has an independent origin.” State v. Blegen, 387 N.W.2d 459, 463 (Minn.
App. 1986) (citing United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 1939
(1967)), review denied (Minn. July 31, 1986). Accordingly, in determining whether an
in-court identification must be precluded, courts apply a two-part test. A court must first
determine whether the underlying pretrial-identification procedure was impermissibly
suggestive. See id. If so, the court must then determine whether the proffered courtroom
identification has an independent origin. See id.
Whether a constitutional violation has occurred presents a question of law, which
we review de novo.
State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009).
reviewing a pretrial order suppressing evidence where the facts are not in dispute and the
trial court’s decision is a question of law, the reviewing court may independently review
the facts and determine, as a matter of law, whether the evidence need be suppressed.”
State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (quotation omitted).
Here, the district court determined, under the first part of the applicable tests, that
the photographic lineup “was not unduly suggestive” because “the individuals in the
lineup display bear a reasonable physical similarity to [Bedell].”
district court concluded that “[i]n light of the totality of the circumstances, the
identification evidence is not reliable” and suppressed the photographic identifications.
Similarly, when deciding the state’s motion to clarify whether the photographic-lineup
witnesses would be allowed to identify Bedell at trial, the district court reiterated “that
the photo lineup procedure . . . was not unduly suggestive,” but it concluded that there
were “insufficient facts to show that courtroom identification would have an independent
The state argues that the district court should have ended its analysis and denied
Bedell’s motion to suppress once it determined that the photographic lineup was not
unduly suggestive. We agree. “[T]he Due Process Clause does not require a preliminary
judicial inquiry into the reliability of an eyewitness identification when the identification
was not procured under unnecessarily suggestive circumstances arranged by law
enforcement.” Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012). The United States
Supreme Court explained that, “[t]he due process check for reliability, . . . comes into
play only after the defendant establishes improper police conduct.” Id. at 726. “[T]he
Court has linked the due process check, not to suspicion of eyewitness testimony
generally, but only to improper police arrangement of the circumstances surrounding an
The United States Supreme Court further explained that “the potential unreliability
of a type of evidence does not alone render its introduction at the defendant’s trial
fundamentally unfair.” Id. at 728. Rather, the decisions turn
on the presence of state action and [the] aim to deter police
from rigging identification procedures, for example, at a lineup,
showup, or photograph array.
When no improper law
enforcement activity is involved, we hold, it suffices to test
reliability through the rights and opportunities generally
designed for that purpose, notably, the presence of counsel at
postindictment lineups, vigorous cross-examination, protective
rules of evidence, and jury instructions on both the fallibility of
eyewitness identification and the requirement that guilt be
proved beyond a reasonable doubt.
Id. at 721. In sum, “[t]he fallibility of eyewitness evidence does not, without the taint of
improper state conduct, warrant a due process rule requiring a trial court to screen such
evidence for reliability before allowing the jury to assess its creditworthiness.” Id. at
The tests traditionally used to determine whether a pretrial or in-court
identification violates due process embody the principle, explained in Perry, that dueprocess concerns do not arise unless law-enforcement officers obtain identification
evidence through an impermissibly suggestive procedure. If the underlying identification
procedure is not unnecessarily suggestive, there is no constitutional basis for exclusion—
regardless of the unreliability of a photographic-lineup identification or the lack of an
independent basis for an in-court identification. Although the latter considerations are
properly considered by the finder of fact at trial, they do not provide a constitutional basis
for suppression. See id. at 721.
Bedell agrees that there is no constitutional basis for relief on due-process grounds
so long as the photographic lineup in this case was not unnecessarily suggestive.
Nevertheless, he contends that this court should affirm the district court’s orders, arguing
that the district court erroneously concluded that the photographic lineup was not unduly
suggestive. But Bedell did not file a cross-appeal raising that argument. Instead, he
raised the issue for the first time in his response brief.
Generally, a defendant has no right to file a pretrial appeal and must wait until
after conviction and sentencing to raise all challenges to adverse rulings. See Minn. R.
Crim. P. 28.02, subd. 2; State v. Joon Kyu Kim, 398 N.W.2d 544, 549-50 n.8 (Minn.
1987) (“Under the Rules, the defendant has no pretrial appeal as of right.”). But Minn. R.
Crim. P. 28.04, subd. 3, specifically provides a defendant the right to file a cross-appeal
when the state files a pretrial appeal. According to the rule, “[w]hen the prosecutor
appeals, the defendant may obtain review of any adverse pretrial . . . order by filing a
notice of cross-appeal with the clerk of the appellate courts . . . within 10 days after the
prosecutor serves notice of the appeal.” Minn. R. Crim. P. 28.04, subd. 3. But “[t]o
challenge a district court ruling, a respondent has to file a notice of review, ‘[e]ven if the
judgment below is ultimately in its favor.’” State v. Botsford, 630 N.W.2d 11, 18 (Minn.
App. 2001) (quoting City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App.
1996), review denied (Minn. Aug. 6, 1996)), review denied (Minn. Sept. 11, 2001). “‘If a
party fails to file a notice of review . . . , the issue is not preserved for appeal and a
reviewing court cannot address it.’” Id. (quoting Holmberg, 548 N.W.2d at 305); see
also State v. Bren, 704 N.W.2d 170, 176-77 (Minn. App. 2005) (declining to address an
issue raised by respondent on appeal because respondent did not file a notice of review),
review denied (Minn. Dec. 13, 2005). Because Bedell did not file a cross-appeal, his
challenge to the district court’s ruling regarding the suggestiveness of the photographic
lineup is not properly before us, and we do not address it any further.
Bedell also argues that this court should affirm on the alternative ground that the
photographic-lineup witnesses lack the personal knowledge necessary to qualify as
competent identification witnesses.
Generally, an appellate court will not consider
matters not argued to and considered by the district court. Roby v. State, 547 N.W.2d
354, 357 (Minn. 1996). But “[a] respondent can raise alternative arguments on appeal in
defense of the underlying decision when there are sufficient facts in the record for the
appellate court to consider the alternative theories, there is legal support for the
arguments, and the alternative grounds would not expand the relief previously granted.”
State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003).
Bedell’s argument is based on Minn. R. Evid. 602, which provides that “[a]
witness may not testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.” Bedell argues that the
district court’s conclusions that “any in-court identification of [Bedell] would likely be
attributed to the photo line-up” and that there were “insufficient facts to show that
courtroom identification would have an independent origin” are equivalent to a
conclusion that the photographic-lineup witnesses lack the personal knowledge necessary
to qualify as competent identification witnesses at trial.
The state counters that there are insufficient facts in the record for this court to
consider Bedell’s alternative theory. As the state points out, there is no testimony in the
record from the photographic-lineup witnesses regarding their qualifications as potential
identification witnesses at trial. The state also notes that because Bedell’s motion to
suppress was based solely on constitutional grounds and not on rule 602, it did not have
any reason to develop a record regarding application of the evidentiary rule. We agree
that the record is inadequate to consider Bedell’s alternative theory, and we therefore do
not address its merits.
In conclusion, identification evidence is not excluded on due-process grounds
unless the underlying identification procedure was impermissibly suggestive. See Young,
710 N.W.2d at 282 (holding that the identification of defendant in a photographic lineup
that was not impermissibly suggestive did not violate defendant’s right to due process);
Blegen, 387 N.W.2d at 465 (holding that a photospread that was not impermissibly
suggestive did not taint a subsequent courtroom identification of defendant). Because the
district court determined that the photographic lineup was not unduly suggestive and that
determination is not subject to review in this appeal, we reverse the district court’s orders
suppressing the identifications of the photographic-lineup witnesses and prohibiting incourt identifications from those witnesses, and we remand for further proceedings.
Reversed and remanded.