Opinion
No. C8-95-1904.
Filed September 10, 1996.
Appeal from the District Court, Dakota County, File No. K2-95-76.
Hubert H. Humphrey, III, Attorney General, (for Respondent)
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant Dakota County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Evan Whitley Jones, Assistant State Public Defender, (for Appellant)
Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Christopher Antiel was charged in Dakota County with aggravated robbery. In an omnibus hearing, the trial court denied appellant's request to suppress his identification in the photo lineup. At trial, a jury convicted appellant as charged. Here, appellant argues the pre-trial identification procedures were impermissibly suggestive and there was insufficient evidence at trial to support his conviction. We affirm.
FACTS
On December 20, 1994, at about 7:00 p.m., six men came to the apartment of three roommates in Dakota county. One of the six men was an acquaintance of the roommates but the others were unknown to them. The acquaintance testified that he brought the men there to buy marijuana and the group smoked marijuana together. The roommates denied this and the police did not detect any signs of drug usage when they interviewed the victims later that evening.
The men sat together for 10 to 45 minutes before the acquaintance left to buy some food. Soon after, one of the visitors left the room and returned with a short barrelled shotgun that he may have removed from beneath his coat. The roommates were then led upstairs, tied to the bathroom fixtures and guarded by the gunman for 20 to 45 minutes while the others robbed the apartment. After the men left, the roommates freed themselves and called the police.
On January 4, all three roommates identified appellant as the man who held the gun. Two of the roommates viewed the photo lineups at the police department and the other roommate viewed them later that day where he worked. During trial all three identified appellant again and also identified appellant's gun as similar to one used in the robbery. In March 1995, appellant was charged with aggravated robbery. At trial, appellant's mother, brother, and step-father, and the acquaintance he shares with the victims, all testified that appellant was home with his family on the evening of the robbery. The jury found appellant guilty. The trial court sentenced appellant to 54 months in prison. This appeal followed.
DECISION I. Identification Procedures
Appellant argues the pre-trial identification procedures were impermissibly suggestive. Specifically, appellant argues two of the roommates' proximity while viewing the photo lineups could have led to corroboration of their choice. When reviewing a claim of improper pre-trial photographic identification procedures, this court uses a two question test. Seelye v. State, 429 N.W.2d 669, 672 (Minn.App. 1988). First, was the photo-line up "unnecessarily suggestive?" Id. Second, even if the answer to the first question is yes, did the witness's identification of the suspect at trial have an independent basis of support? Id. The factors that must be considered in this second inquiry include: a) the witness's opportunity to view the criminal; b) the witness's level of attention; c) the accuracy of the witness's earlier description of the criminal; d) the level of the witness's certainty toward the photo display; and e) the amount of time between the crime and the viewing of the photo display. Id.
The two roommates who viewed the photo line-ups at the police department were in the same room, at separate desks, five to six feet apart. The roommates also sat back to back, did not converse, and received no suggestions from the police investigator. While the placement of the suspects in the first and last positions could have made it easier for the roommates to indicate their choice to each other, it is difficult to see how they could have done so. Thus, this procedure was not impermissibly suggestive.
Appellant further argues the time lapse between the two viewings of the photo line-ups could have allowed the roommates to communicate their choices to each other. The third roommate testified that he did not speak with the other two during the interim, and there is no evidence in the record to show that the two roommates told the third which photos they picked.
Even if the photo lineups were impermissibly suggestive, an independent identification at trial would overcome this. Seelye, 429 N.W.2d at 672. Here, the roommates all had the opportunity to view the gunman for 20-45 minutes in the brightly lit bathroom, and all three roommates identified appellant in the photo line-ups without hesitation. Sufficient evidence exists to support an independent identification at trial. Accordingly, under either part of the test the procedures used to identify appellant were reasonable.
II. Sufficiency of Evidence
Appellant argues that there was insufficient evidence presented at trial to support his conviction. In reviewing a sufficiency of the evidence claim
an appellate court * * * is required to interpret the evidence in the light most favorable to the verdict and must assume that the jury disbelieved any testimony conflicting with the result reached. Deference is given to jury verdicts and if the jury, giving due regard to the presumption of innocence and the state's burden of proving guilt beyond a reasonable doubt, could reasonably have found defendant guilty, the verdict will not be upset.
State v. Vance, 392 N.W.2d 679, 684 (Minn.App. 1986), review denied (Oct. 29, 1986).
Appellant argues it was unreasonable for the jury to disregard the evidence of his alibi. All three of his family members and the acquaintance he shares with the robbery victims consistently testified that appellant was home with his family that evening. Appellant's mother testified that she spoke with him sometime between 8:00 and 8:30 and all three family members testified that appellant did not leave the house until after 9:30. At that time he was picked up by the same man who had brought the robbers to the apartment. This alibi would place appellant at his parents' home when the roommates called the police at 8:18 p.m. Appellant argues these witnesses were believable, particularly because they also admitted appellant owned a short barrelled shotgun.
Appellant essentially argues the jury could only disbelieve this testimony if there was evidence presented to discredit the witnesses. The jury, however, determines the credibility and weight to be given to testimony of individual witnesses. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The weight given to alibi testimony is also for the jury to decide. Vance, 392 N.W.2d at 684. The jury by its verdict believed the state's witnesses and disbelieved appellant's. The evidence here is sufficient to support appellant's conviction.