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State v. Lushenko

May 30, 2006


Beltrami County District Court File No. K4-04-951.


Conducting a bifurcated trial in order to submit to a jury, post-verdict, the issue of pattern of criminal conduct under former Minn. Stat. § 609.1095, subd. 4 (2002), was not error because the district courts possess the inherent authority to craft sentencing procedures in conformance with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The opinion of the court was delivered by: Halbrooks, Judge


Concurring specially, Shumaker, Judge

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.


Appellant challenges the district court's evidentiary ruling on the admissibility of the show-up identification procedure and the district court's authority to conduct a bifurcated trial on the issue of whether appellant is a career offender under the statute. Although we conclude that the show-up identification was unnecessarily suggestive, because it was reliable and because the district court had the inherent authority to craft a bifurcated sentencing procedure, we affirm.


When Brian Brunetta arrived at his house around noon on June 3, 2004, he observed an unfamiliar blue Chevrolet Blazer parked in his driveway. As Brunetta approached the vehicle, which was still running, a man came from around the back of Brunetta's house and asked Brunetta if he would like to purchase an aerial photo of his home. Brunetta declined the offer. The man then asked Brunetta if he knew anyone who would want such a photo; when Brunetta said he did not, the man left.

After the man left and Brunetta's wife arrived home, they realized that their home had been burglarized and called the police. Brunetta gave the responding officer a physical description of the man on his driveway--6'1" and heavy-set--as well as a description of the vehicle and its license-plate number. With that information, the officer identified the registered owner of the vehicle, appellant William Lushenko. The officer obtained appellant's driver's-license photo and showed it to Brunetta. Brunetta stated that he was 90% positive that appellant was the man he had seen on his driveway.

Respondent State of Minnesota charged appellant with second-degree burglary. At the pretrial omnibus proceeding, appellant moved to suppress evidence of the show-up identification on the ground that the identification procedure was both unnecessarily suggestive and unreliable. The district court denied appellant's motion, finding the show-up to be unnecessarily suggestive, but nonetheless reliable.

A jury found appellant guilty of second-degree burglary. Following the jury's verdict and over appellant's objection, the district court allowed the state to present evidence regarding whether appellant was a career offender--namely, whether his current offense was part of a pattern of criminal conduct. The state introduced evidence of appellant's seven prior felony convictions in the preceding 15 years. Appellant then had an opportunity to respond to the state's evidence. At the conclusion of the evidence and counsels' final arguments, the district court submitted a special interrogatory to the jury, asking whether it found that appellant's current conviction was part of a pattern of criminal conduct and instructed the jury that in order to answer "Yes," it must find that fact to have been proven beyond a reasonable doubt. The jury answered "Yes" to the special interrogatory, and the district court imposed the statutory maximum sentence of 120 months, executed. This appeal follows.


1. Did the district court abuse its discretion by admitting evidence of the show-up identification procedure?

2. Did the district court err by conducting a bifurcated trial?



"Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). But if "the facts are not in dispute and the [district] court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).

When determining whether a pretrial identification must be suppressed, we apply a two-part test. The first inquiry focuses on whether the procedure was unnecessarily suggestive. . . .

If the procedure is found to be unnecessarily suggestive, the court must then determine under the totality of the circumstances whether the identification created a very substantial likelihood of irreparable misidentification.

Id. (citations and quotations omitted); see also State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (noting same test). Error in admission of tainted pretrial identification "does not require a new trial if the state can show beyond a reasonable doubt that the ...

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