A16-0880

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0565
A16-0880

State of Minnesota,
Respondent,

vs.

Andre Verlin Anderson,
Appellant.

Filed March 27, 2017
Affirmed
Toussaint, Judge
Concurring specially, Ross, Judge
Concurring specially, Rodenberg, Judge

St. Louis County District Court
File No. 69DU-CR-14-2925

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and
Toussaint, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Judge
Appellant challenges his convictions of aiding and abetting attempted second -
degree murder, aiding and abetting first -degree assault, and aiding and abetting motor -
vehicle theft, arguing that the district court erred by refusing (1) to strike a juror for cause;
(2) to suppress the victim’s pretrial identification; and (3) to permit an expert in eyewitness
identification to testify. Appellant also challenges the district court’s restitution order
holding him jointly and severally liable for the arson loss of the victim’s truck. We affirm.
FACTS
On August 19, 2014, C.J. was contacted by a friend, whom he knew only as “Steve,”
who asked C.J. to meet him at a Subway restaurant in Duluth. “Steve,” later identified as
Steven Hager, was looking for marijuana and C.J. did not have any. C.J. gave him the
phone number of a mutual acquaintance, J.H-S. Later, Hager called C.J. to ask for a ride.
C.J. met Hager and another man, whom Hager described as his boyfriend, at the Subway.
C.J. had never met the other man.
C.J. was driving a pickup truck ; Hager sat in the front seat , and his companion sat
in the back seat. C.J. could see them “decently” because of a street light and the dome light
in his pickup. Hager’s companion was about six feet tall, had a beard, was “skinny,” and
was wearing a black hooded sweatshirt.

3
The two men gave C.J. directions on where to drive, ostensibly to find a cigarette
pack with drugs in it. On a dark stretch of road, th e three men got out to search for the
cigarette pack using a flashlight from C.J.’s phone. Hager’s companion called C.J. over
and while C.J. was looking on the ground for the cigarette pack, the other man stabbed him
a total of 12 times. As the man backed away, C.J. ran away from the truck and hid in a
ditch. After the two men left in his truck, C.J. approached a house with a light and asked
for help. C.J.’s injuries included a lacerated liver, lacerated kidney, and a punctured lung.
C.J. told police before the ambulance came that he had been with “Steve” and another man
he did not know, and that this second man had stabbed him. He told the homeowner that
his friends had tried to kill him. C.J.’s truck was later found in a vacant lot in Duluth; the
truck had been largely destroyed by fire.
At the hospital, C.J. initially gave police no description of Hager or his friend, could
provide only a partial address for Hager, and could not remember Hager’s telephone
number. But he stated that it was “Steve’s” friend who assaulted him. C.J.’s mother was
contacted by J.H-S., who knew Hager’s last name and where he lived. J.H -S. drove with
police to point out Hager’s residence. J.H -S. had seen Hager earlier on the day of the
assault with a man whom he described as “a thinner male with a scruffy face or scruffy
beard.”1 Later, J.H-S. gave police a phone number that he said Hager had used to contact
him. The number was listed to appellant Andre Verlin Anderson.

1 J.H-S. initially stated that Hager’s boyfriend was named “Tim,” presumably T.F. The
man J.H-S. saw with Hager on the day of the offense was “skinny” and J.H-S. knew it was
not “Tim” or T.F., who weighs over 300 pounds.

4
Police returned to the address pointed out by J .H-S. and spoke with Hager. Hager
admitted that he and Anderson had been picked up by C.J. the night before. The owner of
the house where Hager lived, J.F., said that Hager had been renting a room at her house
and that Anderson visited a few times becaus e “Steve was dating him.” She testified that
Anderson had been at her house with Hager on August 19. Her son, T.F., knew Hager well
and had met Anderson, whom he described as Hager’s boyfriend. He agreed that Anderson
had been with Hager during the day on August 19. When police located and arrested
Anderson, he had T.F.’s identification card in his wallet.
Police showed C.J. a six -person photo lineup that included Anderson’s 2011
booking photo. C.J. was unable to identify anyone in the first photo lineup. After Anderson
was arrested, police noted that he looked different from his 2011 photograph, in which he
had short hair and was clean -shaven. Police used Anderson’s new booking photo to
assemble another six-person photo lineup. When shown the second lineup, C.J. identified
Anderson as his assailant. C.J. also picked Hager out of a third photo lineup.
Hager pleaded guilty to arson, aiding and abetting arson, and aggravated robbery.
As part of his plea, he agreed to testify against Anderson, alt hough he was worried about
testifying because he was in prison. Anderson had overdosed , and Hager picked him up
from the hospital on August 19 . Hager testified that a fter spending the day together, he
and Anderson went to Subway to meet C.J. At this point in the testimony, Hager refused
to testify and was threatened with contempt. Hager returned later to complete his
testimony. Hager said he and C.J. chatted as they drove, while Anderson was in the back
seat. Anderson indicated where they should stop to look for a cigarette pack with drugs.

5
The three men looked for the pack; Hager was standing by the truck when he saw Anderson
stab C.J. Hager was roughly 15 feet away , and the truck headlights illu minated the area.
Hager was frightened and got in the truck. Anderson jumped in the passenger side , and
Hager “took off.” The men planned to drive the truck into Lake Superior , but decided to
burn the truck instead. Hager and Anderson drove to a vacant lot, put charcoal in the cab,
and lit the truck on fire. Anderson instructed Hager to leave the windows open. During
his testimony, defense counsel impeached Hager with evidence of his plea agreement.
In pretrial motions, Anderson’s attorney offered the testimony of an expert on the
drawbacks of eyewitness identification. The district court refused to permit the expert to
testify and, when the motion was later renewed during the trial, the district court again
refused to permit the witness to testify.
The jury found Anderson guilty of aiding and abetting attempted second -degree
murder, aiding and abetting first -degree assault, and aiding and abetting motor -vehicle
theft, and acquitted him of aiding and abetting third-degree arson. This appeal follows.
D E C I S I O N
I.

Anderson argues that the district court abused its discretion by refusing to strike a
juror for cause after the juror stated that she would like to hear both sides of the story and
that she thought “we should all speak for ourselv es, especially when we’re defending
ourselves.” After further questioning by the prosecutor , defense counsel, and the district
court, the juror acknowledged that she could “put aside [her] own personal opinion about
wanting to hear the defendant and decide the case only on the evidence presented in court,

6
even if it does not include the defendant testifying,” and told the court that she was “telling
you that under oath.”
A juror who cannot try the case impartially and without prejudice to the substantial
rights of the challenging party may be challenged for cause. Minn. R. Crim. P. 26.02, subd.
5(1)1. We review the district court’s decision on a challenge for cause for an abuse of
discretion. State v. Munt , 831 N.W.2d 569, 576 (Minn. 2013). An appell ate court’s
“review of the district court’s determination of juror impartiality is especially deferential”
because of the district court’s ability to make credibility determinations. Id. But “[t]he
bias of a single juror violates the defendant’s right to a fair trial” and “constitutes structural
error” that requires automatic reversal. State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007).
A defendant raising a challenge under this clause must demonstrate that the juror
has “actual bias.” Munt, 831 N.W.2d at 577. “Actual bias is a question of fact which the
district court is in the best position to evaluate.” State v. Fraga , 864 N.W.2d 615, 623
(Minn. 2015) (quotation omitted). We use a two -step process to determine whether the
district court erred in its challenge-for-cause decision. Id. First, we determine if the juror
expressed actual bias. Id. Actual bias exists when a juror exhibits strong and deep
impressions that would prevent the juror from laying aside the impression or opinion a nd
reaching a verdict based only on the evidence presented in court. Id. If so, we consider
whether the juror was properly rehabilitated. Id. A juror is rehabilitated when the juror
can “state[] unequivocally that he or she will follow the district cou rt’s instructions and
will set aside any preconceived notions and fairly evaluate the evidence.” Id. (quotation
omitted). The district court should consider a “juror’s challenged answer within the context

7
of the entire voir dire testimony to understand what the juror meant by the answer.” Munt,
831 N.W.2d at 578.
Here, defense counsel began by asking the jurors if they ever had to decide an issue
by listening to two sides of an argument, then noted that Anderson was presumed innocent
and need not testify. Defense counsel asked if anyone needed to hear Anderson’s side of
the story. Two jurors responded that they would need to hear both sides. The challenged
juror, A-M, stated that she felt people should speak for themselves but she would try to set
aside that feeling. The prosecutor explained that the judge would give the jury instructions
and that the jury must follow those instructions. A -M said that she would follow the law
but could not guarantee that her individual feelings wouldn’t affect her ability to follow the
law. The district court explained the presumption of innocence and that the defendant did
not have to offer a defense; the court asked A -M if she could “follow that law in your
deliberation if you’re a juror, even if you disagree with it?” The juror responded, “To the
best of my ability.”
The district court denied Anderson’s challenge for cause, but revisited the question
after a break. The district court asked both A-M and the other challenged juror, “[C]an you
tell me that you can put aside your own personal opinion about wanting to hear from the
defendant and decide the case only on the evidence presented in court, even if it does not
include the defendant testifying?” A-M answered, “Yes,” and after more questioning, said,
“I am telling you that under oath.” The district court denied the challenge for cause.
Cases in which actual bias was found include (1) statements that a juror would favor
the testimony of police over lay witnesses and h e did not know if he had the ability to be

8
fair but he would try, State v. Nissalke, 801 N.W.2d 82, 107 (Minn. 2011); (2) statements
that a juror would believe the testimony of a police officer over others, and that she would
try to be fair but when making a judgment call, she would favor police testimony, State v.
Prtine, 784 N.W.2d 303, 309 -10 (Minn. 2010); and (3) statements by a juror that police
officers generally are truthful and do not lie under oath, State v. Logan, 535 N.W.2d 320,
322 (Minn. 1995).
In contrast, the supreme court in Munt determined that a juror, who stated that a
defendant is not mentally ill i f he is aware of what happened , did not express actual bias
because the statement was vague and the juror had not yet recei ved an explanation of the
mental illness defense. 831 N.W.2d at 577. This matter is most similar to Munt. After the
legal principle of the presumption of innocence was explained to A -M, she stated that she
would be able to reach a decision using only the evidence presen ted in court, even if the
defendant did not testify. And even if A -M’s comment expressed actual bias, she was
sufficiently rehabilitated because she “unequivocally” stated that she would follow the
judge’s instructions and that she was making that assuran ce under oath. See Fraga, 864
N.W.2d at 623. The district court did not abuse its discretion by refusing to strike A-M for
cause.
II.
Anderson argues that the district court erred by admitting C.J.’s pretrial
identification evidence. We review the dist rict court’s decision to admit pretrial
identification evidence to determine whether the procedure was so impermissibly

9
suggestive that a defendant’s due-process rights were violated. State v. Hooks, 752 N.W.2d
79, 83-84 (Minn. 2008).
Appellate courts apply a two -factor test to determine whether a pretrial
identification procedure is impermissibly suggestive. State v. Ostrem , 535 N.W.2d 916,
921 (Minn. 1995). First, the court considers whether the procedure unfairly singles a
defendant out for identif ication. Id. Second, even if the procedure was suggestive, the
court considers whether it may be reliable under the totality of circumstances. Id.
Anderson argues that the photo lineup from which C.J. identified him was
suggestive because (1) his pho to was different from the others, showing just his face and
not his neck and torso, and lacking the clarity of the others; (2) C.J. had been shown
Anderson’s photo in a previous photo lineup, but failed to identify him; and (3) police did
not employ a preferred “double-blind” procedure, in which the officer showing the lineup
is not aware if the suspect is included, to avoid subconsciously influencing the witness.
The district court concluded at the omnibus hearing that the six photos in the photo
lineup were similar enough so as not to be unnecessarily suggestive. “A photographic
display need not be comprised of exact clones of the accused. It is sufficient if all the
people in the display bear a reasonable physical similarity to the accused.” State v. Yang,
627 N.W.2d 666, 674 (Minn. App. 2001) (quotations and citation omitted), review denied
(Minn. July 24, 2001). Although there were some differences, the photos used were of
reasonably similar individuals.
C.J. was previously shown another photo lineup that included a picture of Anderson
taken in 2011, three years before this incident. C.J. did not identify Anderson in this lineup.

10
The second lineup included Anderson’s current booking photo. Anderson argues that
because he alone appeared in both photo lineups, C.J. could have been influenced to choose
his picture. But t he district court found that the two photos of Anderson were so
distinctively different that it was not unduly suggestive. In the first photo, Anderson was
clean-shaven and had short hair. In the second photo, Anderson had long hair and a beard.
The court remarked that the photos differed enough so that their use was not impermissibly
suggestive.
Anderson further argues that the failure to use a double-blind procedure tainted the
identification. But C.J. was instructed prior to looking at the photo lineups that he did not
have to identify anyone, a suspect might not be included in the lineup, and he was not to
guess. When C.J. did not identify Anderson in the first photo lineup, no attempt was made
to encourage him to do so. Although a double -blind procedure may be the preferred
method for presenting a photo lineup, nothing in this record reflects that the officer showing
the photos attempted to influence C.J.
Finally, the identification of Anderson as C.J.’s assailant did not rest solely on C.J.’s
photo identification. C.J. identified his assailant as “Steve’s boyfriend.” J.H-S. identified
“Steve” as Hager and said that he had seen Hager with a tall, skinny man. Hager’s
roommates, J.F. and T.F., identified Hager’s boyfriend as Anderson, a tall, thin man. J.H-S.
gave police a phone number that Hager used when he contacted J.H -S. on August 20, and
that phone number was registered to Anderson. Police obtained the 2011 booking photo
of Anderson based on this information. All of this occurred before the photo lineup was
presented to C.J. At trial, Hager testified that Anderson had stabbed C.J. Under the totality

11
of the circumstances, the pretrial photo identification was reliable. See Ostrem , 535
N.W.2d at 921. Therefore, t he district court did not err by admitting the pretrial
identification evidence.
III.
Anderson argues that the district court abused its discretion by refusing to permit
expert testimony about the shortcomings of eyewitness identification. Anderson moved
in limine for permission to call Dr. Ralph Haber, an expert in the p sychology of memory
and the limitations of eyewitness identification. The district court refused to permit Haber
to testify, concluding that Haber’s testimony “would unduly prejudice the State because it
would unfairly create ‘an aura of special reliabili ty and trustworthiness’ for purported
‘expert testimony’ that is actually nothing more than common sense and common
knowledge challenges to eyewitness identification testimony, already available to lay
jurors.”
Minnesota Rule of Evidence 702 provides th at “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify t hereto in the form of an opinion or otherwise.” We review the
district court’s evidentiary decisions for an abuse of discretion. State v. Hanks, 817 N.W.2d
663, 667 (Minn. 2012). But if the district court’s evidentiary ruling prevents a defendant
from presenting a defense, we review the decision to determine if the “exclusion of
evidence was harmless beyond a reasonable doubt.” State v. Smith, 876 N.W.2d 310, 331
(Minn. 2016) (quotation omitted).

12
In State v. Helterbridle, the supreme court affirmed the district court’s decision not
to permit the expert testimony, concluding that it was within the district court’s discretion
to determine whether the testimony would be helpful. 301 N.W.2d 545, 547 (Minn. 1980).
The supreme court recommended that other safeguards be used to address the issue of
unreliability of eyewitness identification, including (1) prosecutorial discretion in
charging; (2) suppression of unreliable testimony; (3) cross -examination and persuasive
argument by defense counsel; (4) jury instructions; (5) jury unanimity; and (6) a motion
for acquittal if evidence is legally insufficient. Id.
In State v. Miles, the supreme court reviewed a case in which the defendant
requested an expert on eyewitness identification because of “the statistically low reliability
of cross-racial identifications.” 585 N.W.2d 368, 371 (Minn. 1998). The supreme court
repeated the safeguards set forth in Helterbridle and concluded that the defendant had been
afforded these protections. Id. at 372. Furthermore, other evidence that implicated the
defendant was introduced at trial, leading the supreme court to believe that the eyewitness
testimony was not “crucial.” Id. at 371-72; see also State v. Mosley, 853 N.W.2d 789, 799
(Minn. 2014) (d iscussing Miles and Helterbridle in analyzing the question of expert -
identification testimony).
After Anderson’s pretrial motion, the district court concluded that Haber’s
testimony would not be helpful because it was too general . The district court offered to
implement the safeguards of Helterbridle, including giving a cautionary jury instruction on
identification and permitting defense counsel to discuss “the problems with the accuracy
of eyewitness identification testimony” during voir dire and cross-examination. Following

13
the district court’s order, Dr. Haber submitted a more detailed report, tying the particular
deficiencies in procedure to scientific conclusions. The district court again refused to
permit Haber’s testimony, but told defense coun sel the court would reconsider if trial
testimony appeared to make Haber’s testimony relevant.
The district court provided Helterbridle safeguards: (1) defense counsel raised the
issue of the accuracy of eyewitness identification during voir dire and cro ss-examination;
(2) the district court gave a cautionary instruction ; and (3) Anderson was not prevented
from presenting the theory of his case. C.J.’s identification was only one element tying the
offense to Anderson; Hager identified Anderson as C.J.’s assailant, and J.F., T.F., and
J.H-S. corroborated elements of Hager’s testimony. On this record, the district court did
not abuse its discretion by excluding Haber’s testimony.
IV.
Anderson argues that the district court abused its discretion by ordering him to pay
restitution jointly and severally with Hager for the destruction of C.J.’s truck by arson. “A
district court has broad discretion to award restitution, and the district court’s order will
not be reversed absent an abuse of that discretion.” State v. Andersen , 871 N.W.2d 910,
913 (Minn. 2015). The district court’s authority to order restitution is reviewed as a
question of law subject to de novo review. Id. A district court’s decision to award
restitution must be supported in the record. State v. Miller, 842 N.W.2d 474, 477 (Minn.
App. 2014), review denied (Minn. Apr. 15, 2014). The state bears the ultimate burden of
proving the “propriety of the restitution” by a preponderance of the evidence. State v.
Thole, 614 N.W.2d 231, 235 (Minn. App. 2000).

14
“The primary purpose of the [restitution] statute is to restore crime victims to the
same financial position they were in before the crime.” State v. Palubicki , 727 N.W.2d
662, 666 (Minn. 2007). Focusi ng on this purpose, courts favor the victim’s right to
restitution under the statute for “injuries that certainly exist over the assailants’ right not to
pay for an injury that might have been caused by another.” Miller, 842 N.W.2d at 478.
“[J]oint and several liability for restitution is inappropriate if one defendant was not
somehow responsible for the conduct of his codefendants.” Id. at 477-78. But “when a
victim sustains indivisible loss from multiple defendants’ actions, the sentencing court has
the authority to order restitution based on joint and several liability.” State v. Johnson, 851
N.W.2d 60, 66 (Minn. 2014).
Anderson was acquitted of the destruction of C.J.’s truck by arson. But a district
court may award restitution if it finds by a preponderance of evidence that the victim’s
losses are directly, and not tangentially, caused by a defendant’s conduct. Miller, 842
N.W.2d at 477. The lesser preponderance -of-evidence standard permits a court to find
grounds for restitution even when a jury has not convicted the defendant under the more
stringent beyond-a-reasonable doubt standard. See State v. Terpstra, 546 N.W.2d 280, 283
(Minn. 1996) (affirming restitution for full amount of loss through theft by swindle despite
jury’s acquittal of defendant on more serious charge); see also State v. Olson, 381 N.W.2d
899, 900-01 (Minn. App. 1986) (affirming restitution order for stolen items when defendant
was convicted of burglary but acquitted of theft).
The record supports the dis trict court’s order for joint and several liability.
Anderson, not Hager, assaulted C.J.; Anderson and Hager fled from the crime scene in the

15
victim’s truck; he and Hager discussed whether they should drive the truck into the lake;
and Anderson drove with Hager to the location where the truck was burned and advised
Hager to leave the windows open to make the fire burn hotter. On these facts, C.J.’s loss
is the direct result of Anderson’s conduct. The district court did not abuse its discretion by
imposing joint and several liability for restitution on Anderson.
V.
Anderson filed a pro se supplementary appellate brief raising a number of issues.
Because we conclude that these claims are without merit, we will address them only briefly.
First, Anderson argues that the district court deprived him of his constitutional right
to a fair trial by refusing to let him produce evidence of prior plea negotiations that the
state had with co -defendant Hager. Generally, evidence of offers to plead guilty or
statements made in connection with negotiations over offers to plead guilty are not
admissible in a criminal action. Minn. R. Evid. 410. Statements made during negotiations
may not be used for impeachment purposes. State v. Robledo-Kinney, 615 N.W.2d 25, 30
(Minn. 2000). The district court did not abuse its discretion by refusing to permit Hager to
be impeached with evidence of prior, rejected plea negotiations. Defense counsel cross -
examined Hager about his final plea agreement and thus was able to present the issue of
possible bias to the jury.
Second, Anderson argues that the district court erred by permitting the state to recall
Hager as a witness after Hager initially refused to testify. Anderson relies on Merriam v.
Ames, 26 Minn. 384, 4 N.W. 620 (1880) , for the proposition that a court may refuse to
recall a witness. But in that civil matter, the district court did not abuse its discretion by

16
refusing to permit the witness to be recalled because the witness had already been “fully
examined,” and no reaso n such as “oversight of counsel, nor misrecollection or
forgetfulness of witness, was suggested as a reason for recalling him .” Id. at 385, 4 N.W.
at 620. Hager, on the other hand, simply refused to testify at all. Anderson has not
demonstrated that the district court abused its discretion by permitting him to return and
complete his testimony.
Third, Anderson contends that the district court erred by denying his motion for an
acquittal. We review the district court’s decision on a motion for a judgment of acquittal
de novo, as a question of law. State v. McCormick , 835 N.W.2d 498, 506 (Minn. App.
2013), review denied (Minn. Oct. 15, 2013). “[T]he test to be applied is whether, after
viewing the evidence and all resulting inferences in the light most f avorable to the state,
the evidence is sufficient to present a fact question to the jury.” Id. (quotation omitted).
Based on our review of the record, the district court did not err by denying Anderson’s
motion for a judgment of acquittal.
Fourth, Anderson alleges that his right to a fair trial was denied by ineffective
assistance of counsel after his attorney did not move for a mistrial when a police officer
made a joke to the court reporter while the jury was still in the room. To sustain a claim
of ineffective assistance of counsel, a defendant must show that “(1) his counsel’s
performance fell below an objective standard of reasonableness, and (2) that a reasonable
probability exists that the outcome would have been different but for cou nsel’s errors.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Generally, matters of trial strategy do
not provide a basis for such a claim. Id. Counsel’s failure to ask for a mistrial or to object

17
to alleged errors are usually viewed as trial strategy. See White v. State, 711 N.W.2d 106,
110 (Minn. 2006). A review of the entire trial transcript confirms that Anderson’s counsel
vigorously represented him in a professional manner.
Finally, Anderson argues that the district court abused its discretio n by refusing to
impose a downward durational departure from the presumptive sentence. We review the
district court’s sentencing decisions for an abuse of discretion. State v. Delk, 781 N.W.2d
426, 428 (Minn. App. 2010), review denied (Minn. July 20, 201 0). Generally, a district
court does not abuse its discretion by imposing a sentence within the presumptive range.
Id. Rather, a defendant must demonstrate that there are “compelling circumstances” that
would prompt this court to exercise its authority and overturn the district court’s sentence.
Id. (quotation omitted).
The district court found no substantial and compelling reason to depart and imposed
a sentence of 213 months, which is within the presumptive range. After a review of the
record, we see no abuse of discretion.
Affirmed.

CS-1

ROSS, Judge (concurring specially)
I concur for the reasons stated in the opinion of Judge Rodenberg.

RODENBERG, Judge (concurring specially)
I concur, but write separately to note my concern with whether it is possible for a
criminal defendant to meaningfully provide a jury with an adequate understanding of the
known limitations and frailties of eyewitne ss-identification testimony under current
Minnesota law.
Recently, we examined a district court’s denial of a request for a jury instruction on
the reliability of cross-racial eyewitness identification. State v. Thomas, ___ N.W.2d ___,
2017 WL 163712 (Minn. App. Jan. 17, 2017), pet. for review filed (Minn. Feb. 15, 2017).
Noting that it is not for this court to make new rules of law, we held that, “[i]n 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 [eyewitness] evidence.” Id. at *1, *5.
Here, appellant proposed calling Dr. Haber as an expert witn ess on the subjects of
human memory and the resulting limitations on eyewitness testimony, as stated in his
written report. Relying on State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980), the
district court concluded in a pretrial ruling that Dr. Habe r’s testimony would not be
admitted because it would not be helpful to the jury. Dr. Haber authored a second report,
tethering his proposed testimony to the facts of the case. Still, the district court declined
to permit the proposed testimony. I agree wholeheartedly with the majority’s analysis of

CS-2

the district court’s evidentiary ruling under the abuse -of-discretion standard and the
limitations on our role as an error-correcting court. The district court applied the relevant
authorities and did not abuse its discretion in its expert-testimony ruling.
Nevertheless, reliance on the Helterbridle “safeguards” against the jury affording
potentially undue weight to eyewitness testimony seems insufficient in light of scientific
advancements since that 1980 opi nion. Helterbridle assumes that the crucible of cross -
examination and other ordinary trial protections will expose to the jury the weaknesses of
an inaccurate eyewitness identification. But cross-examination is of little help in the truth-
seeking process when a witness sincerely believes that his testimony is accurate, even when
it is not. As Dr. Haber reports, multiple peer -reviewed studies prove that the certainty of
an eyewitness does not correlate with the accuracy of that witness’s testimony. Given what
we now know about the limitations of eyewitness testimony, a jury needs something more
in its quest for the truth than cross-examination of a witness certain of what he has seen, or
argument by counsel that the witness did not see that of which he himself is certain.
The authorities binding on this court do not require that a district court either admit
expert testimony or craft a specific jury instruction concerning eyewitness testimony and
its limitations. Compare State v. Miles , 585 N.W.2d 368 , 372 (Minn. 1998) (upholding
exclusion of expert testimony on eyewitness -identification evidence), and Helterbridle,
301 N.W.2d at 547 (same), with State v. Ferguson, 804 N.W.2d 586, 604-10 (Minn. 2011)
(Anderson, Paul H., J., concurring) (discussing the reliability of eyewitness testimony and
recent developments in other states, including New Jersey, concerning whether expert
testimony or a jury instruction should be implemented to ensure jury understanding of the

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limitations of eyewitness testimony), State v. Henderson, 27 A.3d 872, 919 (N.J. 2011)
(revising framework for eyewitness identification evidence in New Jersey, including
changes to jury instructions and pretrial procedures), and State v. Clopten, 223 P.3d 1103,
1112 (Utah 2009) (explaining applica tion of Utah’s rules of evidence to proffered expert
testimony with the expectation that the result would be “liberal and routine admission of
eyewitness expert testimony”).
In sum, the current state of Minnesota law is that it is within a district court ’s
discretion to decline a proposed jury instruction concerning the known limitations on
eyewitness testimony when a party does not proffer supporting expert testimony, but when
a party does proffer such expert testimony, it is equally within the district court’s discretion
whether to admit or exclude it. And it is not for this court to change the law. Thomas,
2017 WL 163712, at *5 (declining to require a jury instruction concerning cross -racial
eyewitness identification when the supreme court has not end orsed such an instruction);
LaChapelle v. Mitten, 607 N.W.2d 151, 159 (Minn. App. 2000) (“[T]his court is limited in
its function to correcting errors . . . .”), review denied (Minn. May 16, 2000); Tereault v.
Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he task of extending existing law
falls to the supreme court or the legislature, but it does not fall to this court.”), review
denied (Minn. Dec. 18, 1987).
Although this jury was left without significant information concerning the frailties
and limitations of eyewitness testimony, I concur because we, like the district court, are
bound by Helterbridle.