State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-1235

State of Minnesota,
Respondent,

vs.

Eric Benjamin Colon,
Appellant

Filed August 6, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-16-20674

Lori Swanson, Attorney General, St. Paul, Minnesota (for respondent); and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Stauber,
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
WORKE, Judge
Appellant challenges his convictions for motor vehicle theft and fleeing a peace
officer in a motor vehicle , arguing that his waiver of counsel was not valid and that the
district court erred by refusing to suppress show-up evidence. We affirm.
FACTS
On August 3, 2016, Officers Moua and Taylor were conducting surveillance in an
unmarked car when they located a stolen vehicle. The officers observed that the driver was
a white male with a bald o r shaved head wearing a white shirt. The officers attempted to
stop the vehicle, but the driver accelerated. The officers reported their pursuit and were
joined by squad cars that took over the chase. The driver continued through se veral red
lights before turning and stopping in the street.
C.I. and M.K. were outside when they heard a “car tearing around a corner, moving
very quickly” and police following. When the car stopped in front of their house, C.I. and
M.K. watched a “stocky” person who w as “bald or [had] very, very short hair” wearing
“shorts, light [colored] sneakers, and a t-shirt” get out of the car and run. C.I. waived down
police officers and pointed in the direction the driver ran. C.I. and M.K. approached Officer
Misgen and stated that they could identify the driver.
Minutes later, Officers Moua and Taylor heard that the vehicle had stopped, and
that the suspect who fled was a “white male, bald, [wearing] a white t-shirt and jean shorts.”
Shortly thereafter, the officers observed a male matching that description walking from the
direction of the vehicle. The officers approached appellant Eric Benjamin Colon, who was

3
breathing heavily, and told him that he matched the description of some one who fled a
stolen vehicle and woul d be detained for a show-up with witnesses. Colon became
“agitated and upset.” Officers placed Colon in the back of a squad car for officer safety
because he “kept tensing up.”
When Officer Misgen heard that a suspect had been stopped approximately a block
and a half from where the chase ended, he drove C.I. and M.K. to the location. Colon was
“uncooperative” and unwilling to participate in the show -up. He “laid down on the back
of the seat” and refused to get out of the car . C.I. and M.K. stepped up to the car, saw
Colon simultaneously, and stated “that’s him.”
Colon was charged with theft of a motor vehicle and fleeing a peace officer i n a
motor vehicle.1 The district court appointed Colon counsel, but Colon moved to proceed
as pro se counsel. Although statin g that it was a “terrible idea ,” the district court granted
Colon’s motion.
In addition to police officers and forensic analysists, the two eye witnesses testified
at Colon’s jury trial. The jury found Colon guilty as charged. The district court sentenced
Colon as a career offender to 60 months in prison on the theft -of-a-motor-vehicle
conviction and 25 months in prison concurrent for his conviction of fleeing a peace officer
in a motor vehicle. This appeal followed.

1 The record shows that Colon was previously sentenced as a career offender. Colon’s
criminal history includes several theft -of-a-motor-vehicle and fleeing -a-peace-officer-in-
a-motor-vehicle convictions. Prior to this offense, Colon had 12 criminal-history points.

4
D E C I S I O N
Waiver of right to counsel
Colon first argues that his waiver of the right to counsel was not valid. A criminal
defendant is guaranteed the constitutional right to counsel. U.S. Const. amend. VI; Minn.
Const. art. I, § 6. A criminal defendant also has a constitutional right to represent himself.
State v. Rhoads , 813 N.W.2d 880, 885 (Minn. 2012). When a defendant requests to
represent himself, the district court “must determine (1) whether the request is clear,
unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives
his right to counsel.” State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).
This court will reverse a district court’s finding that a waiver of counsel is valid if
that finding is clearly erroneous. State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998). “A
finding is clearly erroneous when there is no reasonable evidence to support the finding or
when an appellate court is left with the definite and firm conviction that a mistake
occurred.” Rhoads, 813 N.W.2d at 885. W hen the facts are undisputed, however, this
court reviews de novo whether a waiver of counsel was knowing and intelligent. Id.
“[T]he waiver [of the right to counsel] shall in all instances be made in writing,
signed by the defendant, except . . . if the defendant refuses to sign the written waiver, then
the court shall make a record evid encing such refusal of counsel.” Minn. Stat. § 611.19
(2016); Minn. R. Crim. P. 5.04, subd. 1(4) (stating that the district court must ensure that
a defendant “enter on the record a voluntary and intelligent written wa iver of the right to
counsel”); but see State v. Nelson , 523 N.W.2d 667, 670 (Minn. App. 1994) (stating that
an oral waiver of the right t o counsel was valid despite the writ ten-waiver requirement).

5
Here, there is no form 11 “Petition to Proceed as Pro Se Counsel” in the record. But Colon
filed a handwritten “Petition to Proceed as P ro Se Counsel ,” on which he noted: “I
acknowledge form 11 rules.” Colon’s written petition to proceed as pro se counsel supports
a determination that his waiver was valid.
Before accepting a waiver, a district court must advise the defendant of the nature
of the charges, included offenses, allowable punishments, that there may be defenses or
mitigating circumstances, and additional facts necessary to understand the consequences
of the waiver of the right to counsel. Rhoads, 813 N.W.2d at 889. Here, when accepting
Colon’s waiver, the district court stated: “I think representing yourself is a t errible idea.
You are constitutionally entitled to do it but I would be less than honest with you if I told
you anything other than it’s a horrible idea and lots of people like to do it and they end up
regretting it.” The district court noted that Colon had been through the system many times
before, and has “above-average knowledge and understanding of the risks” associated with
representing himself. The district court’s comments may not have met the requirements of
the on-the-record advisory, but the fac ts and circumstances of the case sho w that Colon’s
waiver was valid. See id. (stating that a district court’s failure to have an on -the-record
inquiry does not render a waiver deficient when the particular facts and circumstances of
the case show that the waiver was valid).
Determining whether a defendant adequately waived his right to counsel depends
on the unique facts and circumstances of the case, including factors such as the defendant’s
background, experience, and conduct. Id. at 884; see also Worthy, 583 N.W.2d at 275-76
(“Whether a waiver of a constitutional right is valid depends upon the particular facts and

6
circumstances surrounding that case, including the background, experience, and conduct
of the accused.”). Here, the record shows that Colon was aware of the charges , included
offenses, and allowable punishments because he had a copy of the complaint and had
previously been convicted of the same offenses. Additionally, the record shows that Colon
understood the criminal-justice system, represented himself previously, and planned a legal
career.
For example, during the three months before his trial, Colon filed and argued several
motions. He moved the district court: to amend the complaint; “for ex parte
communication”; for discovery held by the public defender’s office; for “free phone calls”
to “research investigators, experts in different fields such as DNA, audio, video, [and] jury
consultants”; for a “warrant to obtain cell phone records”; for funds for an investigator; for
unrestricted phone calls; for disclosure of evidence; to suppress show-up evidence; to
dismiss for a discovery violation; for funds to obtain the services of a DNA expert; for his
investigator to have access to t he vehicle to collect material for DNA and fingerp rint
testing; for funds to obtain the ser vices of a “video tech/expert ”; for a probable -cause
hearing; for hearing transcripts; to offer evidence of “squad video and audio in a power
point presentation”; and for in-camera review of Minneapolis Police Department Internal
Affairs incident review files regarding the high-speed chase. Colon also requested copies
of the judge’s bench book and rules of evidence and procedure. And he requested and was
granted use of a state-provided laptop for his opening statement and closing argument.
When the district court noted security issues related to Colon’s request for
unrestricted phone calls , Colon responded that the jail still monitor s the calls because

7
“[t]hey’ve done it before when [he] was pro se.” When the district court explained to Colon
that he would have to piece reports together to establish chain of custody, Colon replied:
“I’m very familiar with the discove ry going through prior cases.” When the prosecutor
stated that the state planned to call a Spreigl witness, Colon stated: “If the prosecution is
planning on doing Spreigl, I’m definitely going to want a Spreigl hearing . . . . I might want
to even offer some reverse Spreigl on the issue.”
Finally, in lieu of cooperating with a presentence investigation, Colon wrote a letter
to the district court. Colon stated that he grew up around “law enfo rcement, lawyers, and
judges.” Colon stated that after he was relea sed from prison in August 2016, he was
“enrolled to start paralegal classes.” Colon des cribed his hobbies, including “reading law
books and journals.” He stated: “I have never felt more satisfaction than representing
myself at trial.” And he asked the district court to sentence him to probation so that he
could “continue with [his] quest in the legal field.” Based on the facts and circumstances
surrounding the case, including Colon’s background, experience, and conduct, his waiver
of the right to counsel was valid.
Identification
Colon next argues that the show-up procedure was unnecessarily suggestive and the
totality of the circumstances does not show that the identifications were reliable. Criminal
defendants are guaranteed due process of law. U.S. Const. amend. XIV. The admission of
pretrial identification evidence violates due process if the procedure “was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
State v. Hooks, 752 N.W.2d 79, 83-84 (Minn. App. 2008). Whether a defendant has been

8
denied due process by the admission of pretrial identification evidence is reviewed de novo
by this court. See Spann v. State, 704 N.W.2d 486, 489 (Minn. 2005).
Pretrial identification evidence is evaluated under a two-prong test. State v. Ostrem,
535 N.W.2d 916, 921 (Minn. 1995). First, this court must determine whether the
identification procedure was impermissibly suggestive. Id. An identification procedure is
impermissibly suggestive if the suspect is unfairly singled out for identification. Id.
Second, even if the i dentification procedure is found to be impermissibly suggestive, the
identification is admissible if the totality of the circumstances show the witness’s
identification is reliable. Id.
This court considers five factors when determining whether the identification is
independently reliable despite a suggestive procedure: (1) the witness’s opportunity to view
the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the witness’s
accuracy in a prior description of the criminal; (4) the witness’s level of certainty at the
show-up; and (5) the time between the crime and the show-up. Id.
The district court held a hearing on Colon’s motion to suppress the show -up
evidence. The officers testified that a typical show-up involves bringing a witness to the
location of the suspect and having the witness sit in the back of a squad car while the
suspect stands illuminated by a spotlight. When there are two witnesses, officers typically
do two separate show-ups. In this case, however, Colon was in the back of a squad car for
safety concerns and refused to get out and participate in the show-up. Because the officers
did not want to use force on Colon, the witnesses stepped up to th e car to identify the
suspect. The witnesses were less than ten feet from the vehicle as Colon was illuminated

9
by a flashlight. The officers testified that the witnesses saw Colon simultaneously and
exclaimed at the same time “that’s him” and stated that the officers “had the right suspect.”
The district court concluded that, although the procedure was unnecessarily
suggestive, the totality of the circumstances show that the identifications were sufficiently
reliable so as not to create a substantial li kelihood of misidentification. The district court
found that the procedure was unnecessarily suggestive because C olon was handcuffed in
the back of a squad car, he was the only suspect presented , and the witnesses were not
separated for the identification . While the state does not challenge this finding, and this
procedure would typically be impermissibly suggestive, here, it was Colon’s conduct that
required the officers to conduct the procedure in this manner.
Officers testified that Colon was “upset,” “agitated,” “tensing up,” lying in the back
of the car, and refusing to get out. The officers did not want to use force on Colon, so they
allowed him to remain in the back of the car for the show-up. The officers stated that they
typically conduct a show-up in the field in order to release an individual not identified as
the suspect. Under the circumstances, it does not appear that the officers had many options
in gaining Colon’s cooperation without physical force, which likely would have made the
procedure more suggestive. T ypically, this procedure would be determined to be
impermissibly suggestive, however, the circumstances here necessitated the manner in
which the procedure was employed, making it suggestive, but not unfairly so.
But even if the procedure was impermissibly suggestive, a review of the five factors
supports the district court’s determination that the identifications were sufficiently reliable
so as not to create a substantial likelihood of misidentification.

10
First, we consider the witnesses’ opportunity to view the criminal at the time of the
crime and their degree of attention. Around midnight, the witnesses were outside when
they heard a car turn down their street with police in pursuit and they ran to see what was
happening right in front of their house. The witnesses “c[a] me forward while [officers]
were standing there saying that they had observed the male flee out of the vehicle.” When
asked if they were able to identify the suspect, both “said they could.” It seems that a high-
speed chase in the middle of the night is going to capture an individual’s attention. And it
also seems that the witnesses believed that they adequately viewed the driver when they
willingly approached officers and stated that they could identify him.
Next, we consider the accuracy in the witnesses’ prior description of the criminal.
Here, the witnesses did not provide a prior description other than stating that they observed
a male flee. Regarding the witnesses’ level of certainty at the show -up, officers testified
that the witnesses simultaneously stated: “That’s him,” and that the officers “had the right
suspect.” Lastly, in looking at the time betwe en the crime and the show -up, o fficers
reported their initial pursuit at 11:54 p.m. and at 11:58 p.m., the description of the suspect
was aired. At 12:00 a.m., Colon was stopped. At 12:07 a.m., an officer radioed the
witnesses’ positive identification. Approximately ten minutes passed between the time the
witnesses saw the dri ver and identified Co lon. Even if the show -up procedure was
impermissibly suggestive, it was reliable under the totality of the circumstances . The
district court did not err in admitting the identification evidence.
Affirmed.