State v. Knight, 50304.

• Citation: 295 NW 2d 592
• Decision Date: 03 July 1980
• Docket Number: No. 50304.,50304.
• Parties: STATE of Minnesota, Respondent, v. Danue E. KNIGHT, Appellant.
• Court: Minnesota Supreme Court

295 N.W.2d 592 (1980)

STATE of Minnesota, Respondent, v. Danue E. KNIGHT, Appellant.

No. 50304.

Supreme Court of Minnesota.

July 3, 1980.

Thomson & Nordby, Douglas Thomson and Jack S. Nordby, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Considered and decided by the court en banc without oral argument.

TODD, Justice.

Defendant was found guilty by a district court jury of charges of burglary, Minn. Stat. § 609.58, subd. 2(1) (1978) (burglary of a dwelling with perpetrator committing assault on person within dwelling), and criminal sexual conduct in the first degree, Minn. Stat. § 609.342(c) (1978) (sexual penetration accomplished by causing complainant to have reasonable fear of imminent great bodily harm), and the trial court sentenced defendant to two concurrent prison terms of 20 years each. On this appeal from judgment of conviction defendant challenges (a) the use of his two prior felony convictions to impeach his credibility, (b) the admission of evidence stating that he exercised his Fifth Amendment right to silence when first questioned by the police, (c) the admission of eyewitness identification testimony, and (d) the adequacy of the trial court's instruction on eyewitness identification testimony. We affirm.

Evidence of defendant's guilt — the adequacy of which defendant does not challenge on appeal — was overwhelming, consisting of positive identification testimony by the victim and strong evidence corroborating her testimony.

Defendant does challenge the admission of the eyewitness identification testimony, claiming that the lineup was impermissibly suggestive in that defendant was the only person whose photograph the complainant had seen. If complainant had not positively identified defendant's photograph in a photographic display, defendant's objection might have some validity. See State v. Witt, 310 Minn. 211, 213, 245 N.W.2d 612, 615 (1976). However, complainant had positively identified defendant's photograph in a photographic display and the lineup was merely a confirmatory lineup.

Defendant also contends that the trial court prejudicially erred in permitting the prosecutor to use defendant's prior felony convictions — one for second-degree manslaughter, the other for possession of more than 1.5 ounces of marijuana — to impeach defendant's credibility. Employing the analysis recommended in State v. Jones, 271 N.W.2d 534, 538 (Minn.1978), we conclude that the trial court did not clearly abuse its discretion in permitting the impeachment, and accordingly we must sustain the trial court's ruling. Id., State v. Brouillette, 286 N.W.2d 702 (Minn.1979).

A related contention of defendant is that the prosecutor improperly questioned defendant about whether the manslaughter offense involved a shooting which led to the victim's death. An objection to this question was properly sustained on the ground that it exceeded the scope of cross-examination by the prosecutor when eliciting evidence of a prior conviction. State v. Norgaard, 272 Minn. 48, 136 N.W.2d 628 (1965). We conclude that defendant was not prejudiced by the question.

Defendant also argues that the prosecutor improperly elicited evidence that defendant fled the jurisdiction after committing ...