Louis County District Court File No. 69DU-CR-14-2831
Swanson, Attorney General, Edwin W. Stockmeyer, Assistant
Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St.
Louis County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jodi
Proulx, Assistant Public Defender, St. Paul, Minnesota (for
Considered and decided by Connolly, Presiding Judge;
Bjorkman, Judge; and Reilly, Judge.
absence of expert testimony proffered by a party, it is not
an abuse of discretion for the district court to refuse to
give a jury instruction informing a jury of recent social and
scientific developments in assessing evidence.
jury convicted appellant on charges of being a felon in
possession of a firearm and of first-degree aggravated
robbery, he was given an enhanced sentence of 180 months. He
challenges his conviction and his sentence. We affirm.
August 2014, appellant Justin Thomas, a black male then 24,
and another male approached J.S., a white male, who was
walking down a street. Appellant pointed a gun at J.S.'s
chest, told him to empty his pockets, and frisked him. J.S.
described his assailant to the police as an African-American
with lighter skin, whose hair was in a ponytail, who had a
goatee and a mustache, and who was wearing a dark jacket and
a black and red baseball cap with the name of a Chicago team.
When the police found appellant, he was removing his hair
from a ponytail; he was wearing a reversible jacket with the
red side out and the dark side in, and he had a red and black
baseball cap with the logo of another Chicago team concealed
in his jacket sleeve. While the police were speaking with
appellant, a police dog following a scent from the scene of
the assault approached appellant and indicated that the scent
trail stopped there. Appellant was then shown to J.S., who
identified him as the man with the gun.
was charged with one count of first-degree attempted
aggravated robbery, one count of second-degree assault, one
count of being a felon in possession of a firearm, and
first-degree aggravated robbery.
on appellant's 2003-2004 juvenile adjudications of felony
aggravated battery and felony theft of a motor vehicle in
Illinois; his 2008 convictions of felony first-degree
burglary, felony terroristic threats, interfering with a 911
call, and four counts of misdemeanor fifth-degree assault;
his 2012 convictions of driving without a valid license; his
2013 convictions of driving after suspension of his license;
and his 2014 conviction of misdemeanor fifth-degree assault;
the state gave notice of its intent to have appellant
sentenced as a dangerous offender, a repeat offender, and a
defendant unamenable to probation.
trial, appellant, without offering any evidentiary support or
seeking a hearing, moved to have the jury instructed to
consider "whether the witness and defendant's
difference of race affected the accuracy of [J.S.'s]
identification [of appellant], " an addition to CRIMJIG
3.19, the cautionary instruction on identification testimony.
trial, appellant declined to testify. The state's
principal witness was J.S. J.S. testified that he was
"110% sure" that appellant was the man who had held
a gun pointed at his chest when he saw appellant's face
during a "show up" arranged by police on the night
of the crime. When asked on cross-examination, "But
you're 110% positive?" J.S. answered, "Oh
[appellant's] face, yes." When asked, "[I]s it
fair to say, can we agree that you weren't 110%
positive?" J.S. replied, "No, sir. I was 110%
positive due to the face, sir. The facial features, the hair
redirect examination, J.S. was again questioned about his
identification of appellant.
Q. You testified that you saw when you were in the back seat
of the squad car and the officer drove you tob
[appellant's] location, you were 110% sure after you saw
him that it was him.
A. Yes, ma'am. It just happened like ten minutes before
that, so . . . it was pretty fresh in my memory at the time.
It is still fresh in my memory right now, his face. . . . .
Q. And you indicated that despite the confusion about hats, .
. . whether or not he had a hood, you were 110% sure because
of the face.
A. Yes, ma'am.
Q. That's your testimony?
A. Yes, ma'am.
Q. What about [appellant's] face makes you ...