In the Matter of the Petition of Joan M. Sigurdson Wurdeman, et al., petitioners, Respondents, vs. City of Maplewood, Respondent Below, Patrick W. O'Brien, et al., Appellants.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C7-98-435

State of Minnesota,
Respondent,

vs.

Kelly James Wadsen,
Appellant.

 Filed February 2, 1999
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 97048785

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Kelly James Wadsen was convicted by a jury of assault in the first degree based on eyewitness identification testimony. He alleges that his right to due process was violated because of impermissibly suggestive pretrial identification procedures. Because the procedures used did not create a substantial likelihood of misidentification, we affirm.

 FACTS

Thomas Wright was assaulted on June 7, 1997, at the intersection of Washington Avenue North and Third Avenue North in Minneapolis. Mr. Wright was listening to music on his headphones when he noticed a man walking beside him trying to talk to him. Moments later a second man stepped between them and began yelling something. Mr. Wright had taken off his headphones to ask what had been said when he felt a pain and was pushed down. Mr. Wright did not remember anything after that point. He was not able to identify his assailants.

As these events developed, Jamie Gabrielson and Brent Thompson were in a car stopped at a red light in the left northbound lane on Washington Avenue. Thompson saw two men crossing Third Avenue, then a third man, who ran up and jumped between the other two. The third man punched the victim in the head. The victim fell to the ground and the two men began to kick him in the head and stomach. When the light turned green, Thompson pulled his car up onto the corner and sounded his horn. Thompson's companion, Déjà Vu employee Jamie Gabrielson, used his two-way radio to call the bouncers from Déjà Vu. When the assailants saw the bouncers coming out of Déjà Vu, they stopped the assault and began to run away. As they ran, they stopped briefly in front of Thompson's car and both Thompson and Gabrielson had an opportunity to look directly at their faces. One of the assailants told Gabrielson, "You didn't see anything," as he ran by.

Michael Gabrysiak was the first person to exit Déjà Vu. When he came out, he called for more security and began to chase the assailants; Gabrysiak was subsequently joined by four or five other employees. An employee caught one of the assailants, later identified as appellant, about 30 yards ahead of Gabrysiak. The police arrived shortly thereafter, handcuffed appellant and placed him in the squad car. Appellant had numerous cuts and abrasions on his face, which he received during the chase or when apprehended.

After approximately thirty minutes, the police brought appellant to the scene of the assault. He was removed from the squad car in handcuffs, and Thompson and Gabrielson positively identified him as one of the persons involved in the assault.

Sergeant Voss, Minneapolis Police Department detective, was subsequently assigned to investigate the case. Sergeant Voss compiled a nine-person photo lineup, which included appellant and eight of appellant's known companions. All of the photos were booking photos. The photograph of appellant had been taken following this arrest, and the cuts on his face were prominent in the photograph. None of the persons in the other photographs had any facial cuts. Voss admitted that he had other booking photos of appellant that he could have used in the lineup.

Voss showed the photo lineup to the victim on July 31, 1997. The victim was unable to identify anyone from the lineup. Voss showed the lineup to Thompson that same day and Thompson identified appellant, but no one else. On August 2, 1997, Voss showed the lineup to Gabrielson, who also identified only appellant.

A Rasmussen hearing was held pursuant to appellant's motion to suppress evidence of the photo lineup as impermissibly suggestive and to suppress any in-court identifications by persons who had viewed the photo lineup. Appellant did not argue that the show-up identification had been impermissibly suggestive. Counsel for appellant stated that the "show-up identification is frankly okay." The trial court denied appellant's suppression motion.

During appellant's trial, Voss testified that Thompson and Gabrielson identified appellant from the photo lineup as being one of the persons involved in the assault. Both Thompson and Gabrielson also identified appellant in court as being the person who initially assaulted the victim and continued to kick the victim after the victim was on the ground. The jury found appellant guilty of assault in the first degree and assault in the third degree. Appellant was sentenced to 125 months in prison. This appeal followed.

 D E C I S I O N

 1. Show-up Identification

  Appellant argues that the show-up procedure employed by the police at the scene of the crime was impermissibly suggestive. Since appellant did not argue the suggestiveness of the show-up identification at the trial court, this court could consider the issue waived on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). However, because the totality of the circumstances surrounding the identification on the scene convince us there was no likelihood of irreparable misidentification, we conclude the show-up identification was reliable. See State v. Lloyd, 310 N.W.2d 463 (Minn. 1981) (show-up conducted moments after defendant's arrest for robbery reliable); State v. Roehl, 409 N.W.2d 44 (Minn. App. 1987) (show-up reliable when conducted 20 minutes after witness of break-in gave a name and physical description of suspect); State v. Nunn, 399 N.W.2d 193 (Minn. App. 1987) (show-up reliable when conducted within one hour of robbery), review denied (Minn. Mar. 13, 1987).

 2. Photo Lineup Identification

  To determine whether a pretrial identification procedure violated appellant's due process rights, and must therefore be suppressed, the Minnesota Supreme Court has adopted the two-part test enunciated in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977). State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996). "The first inquiry focuses on whether the procedure was unnecessarily suggestive." State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citing State v. Marhoun, 323 N.W.2d 729, 733 (Minn. 1982)). A procedure is unnecessarily suggestive if the defendant is "unfairly singled out for identification." Ostrem, 535 N.W.2d at 921 (citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 970-71 (1968)). If the procedure is determined to be unnecessarily suggestive, the second part of the test examines whether the identification is nevertheless reliable under the totality of the circumstances. Ostrem, 535 N.W.2d at 921. Where the identification has an "adequate independent origin" under the totality of the circumstances, it is considered reliable. Id.

If, on the other hand, the procedures used created a "substantial likelihood of irreparable misidentification," the identification evidence must be suppressed. Id. (citing Manson, 432 U.S. at 116, 97 S. Ct. at 2253-54). The following five factors are examined when considering whether the identification is reliable under the totality of the circumstances:

The 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); Ostrem, 535 N.W.2d at 921.

Appellant argues that the photo lineup was impermissibly suggestive because appellant was the only person shown with facial injuries and the witnesses were aware that the alleged assailant had received facial injuries during the chase. We agree.

Both witnesses were aware that the captured assailant had received facial injuries. Appellant's photo was the only photo showing a person with facial injuries. Those injuries stood out prominently in the photo. Sergeant Voss had a prior booking photo of appellant (showing no facial injuries) that he could have used. Under these circumstances, it is clear that appellant was unnecessarily and unfairly singled out for identification in the photo lineup. Ostrem, 535 N.W.2d at 921.

Having determined that the photo lineup was suggestive, we must next turn to the five Biggers factors to determine whether the identification was nevertheless reliable under the totality of the circumstances.

(A) The opportunity of the witness to view the criminal at the time of the crime

Both Thompson and Gabrielson had ample opportunity to observe the assailants at the time of the crime. Gabrielson testified that the assault lasted 35-45 seconds. For the first 15-20 seconds, Gabrielson and Thompson were stopped at the light. For the remainder of the assault they were pulled up to the curb. The assailants ran in front of their vehicle following the assault. Gabrielson testified that he saw the assailants' faces, as they were looking at him, for 5-10 seconds.

(B) The witness's degree of attention

Both Thompson and Gabrielson observed the assailants and victim before the assault began. They continued to watch from their vehicle's position at the light and then pulled the car to the curb. Thompson honked his horn and Gabrielson used his two-way radio to call for help. The record shows that the witnesses were focusing their attention on the assault and trying to stop the assault.

(C) The accuracy of the witness's prior description of the criminal

The witnesses did not offer a physical description of the assailant prior to the photo lineup.

(D) The level of certainty demonstrated by the witness at the confrontation

Both Thompson and Gabrielson identified appellant at the scene approximately 30 minutes after the assault. Thompson testified that he was confident of his identification at that time. Gabrielson testified that he was sure of his identification and stressed that in working security at the club, he tends to look closely at people's faces because he knows that he is required to recognize people. Both were also confident of the identification of appellant from the photo lineup.

(E) The time between the crime and the confrontation

The time between the assault and the photo lineup was approximately seven weeks. See State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986) (photo lineup shown "several months later" was not impermissibly suggestive), review denied (Minn. Jan. 16, 1987).

Under the totality of the circumstances, the photo lineup did not create a substantial likelihood of misidentification. The photo lineup, while suggestive, was merely confirmatory. See State v. Darveaux, 318 N.W.2d 44, 47 (Minn. 1982) (finding that suggestive physical lineup following photo lineup was merely confirmatory and did not cause a substantial likelihood of misidentification); State v. Knight, 295 N.W.2d 592, 594 (Minn. 1980) (holding that physical lineup following identification of defendant in a photo lineup was a mere confirmatory lineup and did not violate due process); State v. Cobb, 279 N.W.2d 832, 833-34 (Minn. 1979) (concluding that because the witnesses had identified defendant before they saw him in the lineup there was no "very substantial likelihood of irreparable misidentification").

Both witnesses observed the entire assault from close range. Both watched the assailants run past their car as they fled. The witnesses then identified appellant at the scene of the assault a short time after it occurred.

The identification testimony was reliable because there was an adequate independent basis for both Thompson's and Gabrielson's identification of appellant. It was, therefore, properly admitted.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.