State v. Darveaux
| Decision Date | 16 April 1982 |
| Docket Number | No. 81-475.,81-475. |
| Parties | STATE of Minnesota, Respondent, v. Thomas E. DARVEAUX, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, and Mark F. Anderson, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Robert F. Carolan, County Atty., Thomas M. Bambery and Charles A. Diemer, Asst. County Attys., Hastings, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant, Thomas E. Darveaux, was arrested in connection with the armed robbery of a drug store and was found guilty by a district court jury of aggravated robbery in violation of Minn.Stat. § 609.245 (1980). Defendant appeals from his conviction, contending that (1) the identification procedures were impermissibly suggestive, (2) the admission of other-crimes evidence constitutes reversible error, (3) the admission of defendant's past convictions for impeachment purposes constitutes reversible error, (4) the use of defendant's post-arrest silence for impeachment purposes violates due process, and (5) the alleged prosecutorial misconduct warrants a new trial. We affirm.
The events leading to defendant's arrest and conviction for armed robbery may be summarized as follows:
On September 29, 1980, Dawn Lindberg, a 17-year-old clerk, and A. Eugene Anderson, the owner, were working at Anderson Drug Store in Farmington, Minnesota. Shortly after 8 p. m., two armed individuals, a male and female, entered the store. Lindberg saw a woman wearing a nylonknit mask enter first, followed by a man who put on a similar mask after about 10 seconds. The man, who had "sort of a limp," ordered Lindberg to walk to the back of the store.
Anderson, who was working at the pharmacy in the back of the store, noticed the man "shuffling" down the aisle and waving a gun, and asked: "What the hell is going on here?" The man responded: "Don't move or I'll shoot the girl first, then I'll shoot you."
The man demanded some drugs, specifying morphine and Dexedrine. Anderson said he did not carry those drugs in stock. The man threatened to shoot Anderson if he found them. After further demands, Anderson gave the man varying amounts of codeine, Preludin and Tussionex.
The robbers tied Anderson and Lindberg with white adhesive tape, put paper in their mouths, and then walked around the pharmacy, taking more drugs. They stole no money but took about $594 worth of drugs, including different quantities of Percodan, Valium, Preludin, Percodan-Demi, Percobarb, Tussionex and codeine.
At 8:20 p. m., Leah Moen, Lindberg's friend, entered the store. The man tied Moen with a telephone cord. The robbers then left through the back door. The victims untied themselves and called the police.
Sergeant Ronald Ryan, a St. Paul police officer, heard about the Farmington robbery the next day. The description of the male robber and of the crime, including the particular method of securing the victim, brought to mind a possible suspect. On October 1, Ryan took pictures of eight men, including defendant, to Farmington and showed them to Lindberg, Anderson and Moen. Both Lindberg and Moen selected defendant's picture and positively identified him as the male robber. Anderson chose three pictures, including defendant's, as pictures of possible suspects.
Ryan returned to St. Paul and obtained an arrest warrant for defendant and search warrants for defendant and his St. Paul residence. Defendant and a woman, Lynn Cairl, were arrested in front of the residence. Ryan searched defendant and found various tablets and capsules, which were later identified as Percodan, Preludin and Vicodin. Ryan also searched Cairl. In her purse he found some marijuana, two bottles of Tussionex and other pills which were later identified as codeine, Percodan, Nembutal, Tagamet, Riker, Tylenol and Valium. Police officers searched the residence and found more Percodan and Valium. All these drugs were admitted into evidence at trial.
On October 2, Lindberg and Moen viewed a physical lineup, consisting of defendant and three other men. The four men walked a short distance; only defendant walked with a limp. Defendant was also the only person who appeared in both the photographic lineup and the physical lineup. Both Lindberg and Moen positively identified defendant as the male robber.
Defendant's jury trial began on December 9. Lindberg, Anderson and Moen testified and made positive in-court identifications of defendant as the robber. Defendant responded with an alibi defense. Defendant and his sister testified that he was at his sister's St. Paul residence at the time of the robbery. The state used four of defendant's prior convictions for impeachment purposes. During cross-examination, defendant admitted that he failed to disclose his alibi to the police immediately after his arrest.
The jury found defendant guilty of aggravated robbery. The district court subsequently sentenced defendant to 96 months imprisonment. Defendant now appeals from his conviction.
1. Defendant's first contention is that his right to due process was violated by the admission of identification evidence. The issue, which must be evaluated in light of the totality of the circumstances, is whether the pretrial identification procedures were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
The photographic display was not impermissibly suggestive. Defendant's photograph was not unique among those displayed, the police did not suggest in any manner which photograph should be selected, and the use of only eight photographs is not itself unduly suggestive. Cf. United States v. Gantt, 617 F.2d 831 (D.C.Cir.1980) (); United States v. Miller, 507 F.Supp. 1347 (D.Md.1981) (same).
By contrast, the four-man physical lineup was unduly suggestive. Defendant was the only man in the lineup whose photograph had been shown to the eyewitnesses. This procedure was unduly suggestive in itself. State v. Webber, 292 N.W.2d 5 (Minn.1980); State v. Witt, 310 Minn. 211, 245 N.W.2d 612 (1976). Moreover, defendant was the only man who limped. This also presented an unduly suggestive situation. Royal v. Maryland, 529 F.2d 1280 (4th Cir. 1976); United States v. Crouch, 478 F.Supp. 867, 871 n.3 (E.D.Cal.1979) (dictum).
The conclusion that the lineup was unduly suggestive does not end the inquiry. It must also be determined whether under all the circumstances the lineup gave rise to a very substantial likelihood of misidentification. In this case, Lindberg and Moen, the only eyewitnesses who viewed the lineup, had already positively identified defendant in a valid photographic display.1 Because the physical lineup was merely confirmatory, we find that it did not cause a substantial likelihood of misidentification. State v. Knight, 295 N.W.2d 592 (Minn. 1980); State v. Cobb, 279 N.W.2d 832 (Minn.1979).
2(a). At trial the state introduced evidence that 2 days after the robbery St. Paul police seized assorted drugs from defendant's person, from the purse of his companion, Lynn Cairl, and from his residence. Many, but not all, of the drugs were of the same type that had been taken in the Farmington robbery. Defendant's second contention is that he was denied a fair trial by the admission of other-crimes evidence of drug possession in violation of the safeguards established in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). We conclude that the evidence of the drugs was properly admitted without Spreigl notice as proof of the immediate episode for which defendant was being tried. Id. at 497, 139 N.W.2d at 173; Minn.R.Crim.P. 7.02.
2(b). Defendant's third contention is that the introduction of evidence that defendant was a suspect in other crimes was reversible error. We find no error. Defendant's counsel initially brought out the fact that defendant was a suspect in other robberies. The prosecutor's subsequent questions and closing argument did not go beyond the precise scope of the defense attorney's inquiry and thus were proper.
3. Pursuant to Minn.R.Evid. 609, the trial court permitted the state to impeach defendant through the use of four prior convictions: a 1968 aggravated assault with a dangerous weapon, a 1976 felony theft, a 1977 misdemeanor theft and a 1978 felony theft. Defendant's fourth contention is that he was denied a fair trial by the admission of the misdemeanor theft and aggravated assault convictions.
The 1977 misdemeanor theft conviction, based on a shoplifting offense, was admitted for impeachment purposes pursuant to Minn.R.Evid. 609(a)(2), which provides that crimes directly involving dishonesty or false statement are automatically admissible without regard to the seriousness of the punishment and without any requirement that probative value be balanced against prejudice. The Committee Comment to Minn.R.Evid. 609 states that such crimes "involve acts directly bearing on a person's character for truthfulness"; "dishonesty in this rule refers only to those crimes involving untruthful conduct." A conviction for misdemeanor shoplifting is not a conviction involving dishonesty or false statement within the meaning of Minn.R.Evid. 609(a)(2).2 The admission of the 1977 misdemeanor theft conviction, therefore, was plainly impermissible.
The 1968 aggravated assault conviction concerns a crime not directly involving dishonesty or false statement; therefore, the conviction was admissible for impeachment purposes only if its probative value outweighed its prejudicial effect. The 10-year limit on the admissibility of convictions imposed by Minn.R.Evid. 609(b) is not applicable because at the time of the trial 10 years had not elapsed since defendant was released from the confinement imposed for this conviction. Nevertheless,...
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State v. Daher, A15-0937
...misdemeanor theft by shoplifting is not a crime of dishonesty or false statement, but theft by swindle is. Compare State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (concluding that theft by shoplifting is not a crime of dishonesty or false statement), with State v. Norris, 428 N.W.2d 61, 7......