Opinion
No. C9-00-1779.
Filed July 31, 2001.
Appeal from the District Court, Ramsey County, File No. K9001051.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This case involves an appeal from a conviction of being a felon in possession of firearm. Appellant argues that the police officers who responded to a domestic call lacked reasonable articulable suspicion to stop him when the reported suspect was older and shorter than appellant. Appellant also argues that he was entitled to a mistrial when the trial court improperly mentioned the prior-conviction element of the offense in its opening instructions. Because we conclude that the stop and seizure was supported by specific, articulable facts that created reasonable suspicion and that there was no error in the jury instructions, we affirm.
FACTS
At 4:00 a.m. on March 31, 2000, St. Paul police officers Trygve Sand and Robert Kruse were called to investigate a report of criminal damage to property. The complainant told the officers that her former boyfriend had vandalized her vehicle. She also told them that the suspect had been staying at 1619 East Maryland Avenue, apartment 119. The complainant described the suspect as a black male in his late 20s, with short hair and some facial hair.
Sand and Kruse arrived at the apartment complex at approximately 4:30 a.m. Both officers were familiar with the building. They proceeded immediately to apartment 119 and saw a young black male standing in front of the door to the apartment.
The officers approached the man and asked him to identify himself. Appellant, who is black, 20 years old, and had facial hair, told the police officers that his name was William Washington. The officers asked appellant to produce identification. Sand and Kruse both testified that appellant became very nervous, avoided eye contact with them, and fumbled in his pockets. Appellant told the officers that a couple of guys had let him into the building and that his identification was in his friend's apartment. Appellant suggested that he intercom his friend to identify him, but the officers would not agree to this procedure. Suddenly, appellant bolted for the front door. Sand chased appellant through the inner door of the foyer and grabbed him in a bear hug. As they were struggling, Kruse saw a silver handgun fall from appellant's back pocket and yelled, "Gun!" Appellant managed to get away and ran off. Both officers chased appellant, but Sand returned to the scene and secured the gun, which was a loaded .357 revolver. Appellant was later apprehended by a canine squad. Throughout the entire incident, the officers saw no one else in or around the building.
Appellant was charged with possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subds. 1(b) and 2 (1998), and Minn. Stat. § 609.11, subd. 5(b) (1998). Appellant made a pretrial motion to suppress the evidence obtained as a result of the stop and seizure. The trial court denied the motion, finding that the police had "reasonable cause to inquire of [appellant's] identification and when [appellant] * * * started to run away, the officer[s] had reasonable cause to seize [him]." The court found that based on the call received, the officers knew that criminal activity had taken place by the time they arrived at the building. Moreover, they observed someone outside of apartment 119 who appeared to fit the description they had been given and, therefore, the officers had reason to inquire of the identity of that person. In addition, the court concluded that appellant's attempt to escape reinforced the officers' reasonable conclusion that he was the suspect.
Before trial, the parties stipulated that appellant had been convicted of a crime that made him ineligible to possess a firearm and that his felon status would not be mentioned to the jury. The first trial began June 12, but in its initial jury instructions, the court inadvertently told the jury that appellant had been convicted of a "crime of violence." Appellant moved for a mistrial, and the court granted it.
The second trial was held June 19-20, 2000. In the initial jury instructions, while reading the elements of the crime, the court stated that "[t]he statutes of Minnesota provide that whoever has been convicted of a — ." The prosecutor immediately interrupted the court, and a discussion was held off the record. The trial court proceeded with the instructions and omitted any further reference to appellant's conviction. The court simply told the jury that "[t]he parties have stipulated that the defendant is ineligible to possess a firearm." At the end of the trial, appellant again moved for a mistrial based on the court's partial misstatement. The trial court denied the motion.
The jury found appellant guilty of possession of a firearm by an ineligible person. The trial court sentenced appellant to five years, the presumptive sentence for the offense. This appeal follows.
DECISION I.
Upon review of a pretrial order suppressing evidence when the facts are not in dispute, this court "may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citations omitted). We must determine whether the police officers' actions constituted a seizure and if, as a matter of law, the officers articulated an adequate basis for the seizure. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Appellant argues that because the officers had a limited description of the suspect, and that description did not reasonably match him, there was no reasonable suspicion to justify the stop. "In reviewing a district court's determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo." State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). A police officer can lawfully make an investigative stop or seizure of an individual if the officer "is `able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968)). Police may make an investigatory stop for a completed offense based on a bulletin or other information if the bulletin is issued on the basis of articulable facts supporting a reasonable suspicion. United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 681 (1985). Appellate courts determine the propriety of an investigative stop by reviewing the "totality of the circumstances" surrounding the stop. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).
Here, the totality of the circumstances supports the officers' decision to stop appellant. The officers had a report that a crime had been committed, and the victim had provided them with a precise location where they could find the suspect. They arrived at the apartment building at 4:30 a.m., and the only person they encountered was appellant, who happened to be standing directly in front of the apartment they had been directed to. Appellant fit the limited description, matching the gender, race, and general age range of the suspect. See State v. Saffeels, 484 N.W.2d 429, 430 (Minn.App. 1992) ("the particularity of the description is only one factor, which cannot be considered in isolation"), review denied (Minn. June 1, 1992). When the officers approached, he avoided eye contact and appeared nervous. Whether avoidance of eye contact with the police justifies suspicion depends on the circumstances of the encounter. See State v. Johnson, 444 N.W.2d 824, 825-27 (Minn. 1989) (rejecting per se rule that an evasive act does not justify an investigative stop). Here, the avoidance of eye contact was only one of several factors that the police considered when they approached appellant. We conclude that the combined facts support a reasonable suspicion justifying a limited investigatory stop.
Appellant argues that the stop was unconstitutional because the vague description of the suspect fit "a potentially staggering number of" people in the building, and the police had an obligation to request additional information about the suspect. In re A.S., 614 A.2d 534, 538 (D.C. App. 1992). In A.S., an undercover officer broadcast that she had seen "five subjects standing on the corner, [and] all of them seemed to be dressed alike." Id. at 535 (alteration in original). The request to stop one of the young black males described only by his clothing subjected four presumably innocent youths, and "a potentially much greater number of youths in the area," to unwarranted seizure. Id. at 539. But in this case, the arresting officers were looking for a single suspect and encountered one man who reasonably fit the suspect's description at 4:30 a.m. in the hallway outside the apartment referenced by the complainant. Although it is undisputed that the police could have obtained a booking photograph or more detailed description from the complainant, under the totality of the circumstances, the stop of appellant was reasonable.
Appellant next contends that even if the stop was justified, the police unlawfully seized him when they "insisted that he provide them with further identification." Seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quotation omitted). A seizure occurs when a reasonable person would believe that "he or she was neither free to disregard the police questions nor free to terminate the encounter." Id. (citations omitted).
Here, we agree with appellant that he was seized after he was unable to produce identification and the officers persisted in their request. Cf. State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn.App. 1994), review denied (Minn. Mar. 14, 1995). When appellant could not produce identification, the police insisted that he get his identification from his friend's apartment and refused to allow an intercom identification. A reasonable person would not feel that he could end the encounter at this point. See Cripps, 533 N.W.2d at 391 (holding defendant was seized after officer approached her in bar and asked her to produce identification for the purpose of showing that she was of legal age to consume alcohol).
But we disagree that the seizure was illegal.
A police officer may stop and temporarily seize a person to investigate that person for criminal wrongdoing if the officer reasonably suspects that person of criminal activity.
Id. To be considered reasonable, an officer's suspicion must be based on specific, articulable facts. Id. As discussed above, the police knew a crime had been committed and had enough detailed, articulable facts to justify the seizure. Because we find that the stop and the seizure were legal, we conclude that the court correctly denied the suppression of the gun.
II.
Appellant argues that he is entitled to a new trial because the court erred by referring to "a prior conviction" in the opening jury instructions in the second trial. If the court erred in its instructions, this court conducts a harmless-error analysis to determine whether the appellant is entitled to a new trial. See State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998) (finding trial court's erroneous inclusion, without objection from defendant, of jury instruction containing provision of law never enacted was harmless error).
Here, in its preliminary instructions, the court stated "[t]he statutes of Minnesota provide that whoever has been convicted of a " before being interrupted by the prosecutor. The court then gave the proper jury instructions. Appellant did not move for a mistrial until just before closing arguments. The court denied the motion and properly instructed the jury. We do not find this slight initial misstatement to be error.
But even if the trial court erred, the error was not prejudicial. Appellant argues that the mere mention of a conviction is prejudicial error requiring a reversal. See State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984) (holding that to avoid prejudice, a defendant accused of being a felon in possession of a firearm may stipulate to his felon status and have the trial limited to the issue of firearm possession). Jury instructions must be construed as a whole and may not be attacked "by lifting a single sentence or word from its context." Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). Here, the court's alleged error came within nearly nine pages of opening remarks by the court. Further, the jury heard the correct instruction twice. A slight misstatement in the initial jury instructions, within the course of a daylong trial and two sets of jury instructions, does not rise to the level of prejudicial error.