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State v. Thomas

Court of Appeals of Minnesota

January 17, 2017

State of Minnesota, Respondent,
v.
Justin Dillard Thomas, Appellant.

         St. Louis County District Court File No. 69DU-CR-14-2831

         Affirmed

          Lori 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 appellant)

          Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and Reilly, Judge.

         SYLLABUS

         In the 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.

          OPINION

          CONNOLLY, Judge

         After a 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.

         FACTS

         In 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.

         Appellant 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.[1]

         Based 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.

         Before 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.

         At 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 - "

         On 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 ...

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