1996-09-03

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §. 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-95-2404

State of Minnesota,
Respondent,

vs.

Kelvin NMN Jackson,
Appellant.

  Filed September 3, 1996
Affirmed
Foley, Judge

1

Ramsey County District Court
File No. KX-94-2991

Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Short, Judge, and Foley, Judge.

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

FOLEY , Judge
Appellant Kelvin Jackson challenges his conviction by jury of aggravated robbery, contending that (1) his due process right to present a defense was violated by the trial court's refusal to permit him to admit a surveillance tape in support of his alibi, (2) the police used an impermissibly suggestive show-up procedure to identify him as the perpetrator, and (3)evidence introduced at trial was insufficient to support the jury's guilty verdict. We affirm.
FACTS

On September 16, 1994, police were called to investigate a purse snatching in St. Paul. The robbery victim reported that the thief grabbed her purse and disappeared into an alley, and that she immediately heard a car start up and saw a black car emerge from the alley and crash into a construction site. When the victim reached the crashed car, it was empty. At roughly the same time, police received a call from appellant from a pay phone at a gas station in the area. Appellant reported that his car had just been stolen from the gas station.
A police officer told appellant of the crashed car nearby, and appellant agreed to view the car to determine if it was his. After appellant viewed the car, a police officer asked appellant if he would take a ride in his squad car. The officer drove appellant past the robbery victim, seated in a squad car some distance away. The victim identified appellant as her assailant.
Appellant was eventually charged with aggravated robbery and pleaded not guilty. At trial, appellant presented the defense that he was in the gas station at the time of the robbery. In support of this alibi, appellant sought to introduce a video surveillance tape from the gas station that he contended depicted him inside the gas station at the time of the robbery. A gas station clerk who was called to testify identified the tape as a surveillance tape taken on the day and at the time of the robbery, but was unable to identify appellant on the tape. The trial court found that the quality of the tape was too poor for the tape to be useful as evidence.
D E C I S I O N

1. Videotape
The admission of physical evidence is within the sound discretion of the trial court and may not be overturned absent an abuse of that discretion. State v. Daniels , 361 N.W.2d 819, 827 (Minn. 1985); see also Minn. R. Evid. 104(a) (admissibility of evidence determined by court).
The trial court, after viewing the tape at issue and hearing the testimony of the clerk that she could not identify appellant on the tape, determined that the tape was "illegible," a finding we are in no position to overturn. Photographs, and presumably videotapes, must "accurately portray the scene" to be admissible. Daniels , 361 N.W.2d at 828. It is impossible to determine whether an "illegible" videotape accurately depicts a scene, and thus to determine whether that tape is admissible. The trial court did not abuse its discretion by refusing to permit the admission of the pertinent video tape.
  2. Show-up Procedure
We must uphold a trial court's decision to admit identification testimony unless 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) (citation omitted). In determining the likelihood of misidentification, we must consider by a totality of the circumstances the following factors: (1) the opportunity of the witness to view the defendant; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the confrontation and the crime. Id. ; see Neil v. Biggers , 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972) (listing factors).
One-person show-ups like the one conducted by police in this case are not automatically impermissible. See State v. Gutberlet , 346 N.W.2d 639, 642 (Minn. 1984) ("We have had a number of cases in which we have upheld the refusal of the trial court to suppress eyewitness identification testimony following a one-person showup conducted shortly after the crime.") (citing State v. Lloyd , 310 N.W.2d 463 (Minn. 1981) and State v. Hardy , 303 N.W.2d 57 (Minn. 1981)); Spann , 287 N.W.2d at 407 (affirming trial court holding that "show-up" identification proceeding is acceptable); State v. Harris , 396 N.W.2d 622, 623 (Minn. App. 1986) ("Show-ups are permissible identification tools.").
Appellant has not identified anything about the show-up procedure used in his case that would distinguish it from the many show-up procedures that have been upheld by Minnesota courts. The fact that appellant was the only individual in the show-up does not render the show-up impermissibly suggestive. Gutberlet , 346 N.W.2d at 642. The fact that the show-up was conducted at the scene of the crime does not render it impermissibly suggestive. State v. Hazley , 428 N.W.2d 406, 410 (Minn. App. 1988) (although on-the-scene show-ups are suggestive, they do not preclude admission of identification testimony unless there is a "very substantial likelihood of irreparable misidentification") (citing Gutberlet , 346 N.W.2d at 642). The fact that appellant was seated in the back of a squad car when the victim was asked whether she could identify him does not render the show-up impermissibly suggestive. State v. Bernier , 226 N.W.2d 864, 865 (Minn. 1974) (upholding admission of identification evidence obtained by police after they drove suspect to victim's house and had victim view and identify suspect while he was seated in back of squad car).
Moreover, the victim's identification of appellant in this case has trustworthiness independent of the show-up. Appellant testified that she got a "good look" at the defendant and that she paid particular attention to the defendant's face. She identified appellant shortly after the robbery, and was certain of her identification, responding "No" when asked if she had any doubt whether appellant was the assailant. Finally, she was able to identify appellant as her assailant in court. The trial court did not err in determining that the show-up procedure used to identify appellant was not impermissibly suggestive.
  3. Sufficiency of the Evidence
When there is a challenge to the sufficiency of the evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). A review of the trial transcript in this case shows that the state presented adequate evidence to support the jury's guilty verdict, including the testimony of the victim that she could identify appellant as her assailant both at the time of the robbery and at the time of trial.
  4. Other Issues
Appellant contends he is entitled to 98 rather than 97 days of jail credit, relying on an unpublished decision of this court. Appellant did not raise this issue before the trial court and thus we do not reach it. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (reviewing courts may only consider "those issues that the record shows were presented and considered by the trial court") (quoting Thayer v. American Financial Advisers, Inc. , 322 N.W.2d 599, 604 (Minn. 1982)); State v. Roby , 463 N.W.2d 506, 508 (Minn. 1990) (appellate courts must not "decide issues which are not first addressed by the trial court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure") (quoting State v. Sorenson , 441 N.W.2d 455, 457 (Minn. 1989)). Though appellant could not have raised this issue at trial, he could have raised it at the October 9 resentencing hearing. Appellant has provided no explanation for his failure to raise the issue at his second sentencing hearing. If the issue did not arise in time for appellant to raise it on October 9, he may bring a separate action to contest the calculation of time, permitting the trial court to consider the issue before any appellate review.
  Affirmed.