State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0758

State of Minnesota,
Respondent,

vs.

DeAngelo Terrell Davis,
Appellant.

Filed May 28, 2019
Affirmed
Jesson, Judge

St. Louis County District Court
File No. 69DU-CR-2699

Keith Ellison, Attorney General, Ed win W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Mark 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 Jesson, Presiding Judge; Ross, Judge ; and Peterson,
Judge.


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

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
During pretrial identification show-up procedures, two eyewitn esses identified
appellant DeAngelo Terrell Davis as the person who threatened t hem with a gun. Davis
asserts the procedures were unnecessarily suggestive and theref ore challenges the district
court’s denial of his motion to suppress the pretrial identification evidence. Davis further
challenges the district court’s denial of his request for an ey ewitness-identification jury
instruction regarding the impact of race and the presence of a weapon on the reliability of
eyewitness identification. Because the district court acted within its discretion, we affirm.
FACTS
In July 2016, a fight broke out in the alley behind a house in Duluth. The fight was
broken up by two people, including A.B. According to A.B., one of the adult females
involved in the fight was named Hope. Shortly after the fight ended, two people stopped
by and spoke with A.B. and T.J. (a resident of the house) on th e sidewalk on the opposite
side of the street. During thei r conversation, they saw a car approach the house and stop
briefly. Then, after driving around the block, the car stopped in the middle of the street in
front of the house.
The driver of the car pointed an assault rifle through the open driver’s side window
at the group, including A.B. and T.J. With his finger on the t rigger, the male driver
repeatedly asked “who has my girl’s sh-t?” and “who touched my girl?” In response to the
questions, A.B. asked who his girl was. The male responded, “Hope.” At this point, A.B.
hid behind a vehicle and T.J. went into the house and told his roommate that someone was

3
outside with an assault rifle with a red dot sight on top.1 The roommate called 911. Police
were dispatched to the address.
While T.J. remained inside the house, the driver got out of the car and continued to
ask about his girl’s “sh-t.” A.B . took note of the driver and the car, although he was also
focused on the gun. After the driver got in his car and left, A.B. wrote down the car’s
license plate number.
When police officers arrived, an officer interviewed T.J., who described the driver
as a black male, 5’8” or 5’9” tall, in his early 20s with short black hair, no facial hair and
an average or muscular build. And he described the car as a “s ilver Mercedes-Benz or
looks like it was that type” of car. But he testified that he was not good with cars. 2 T.J.
also stated that the gun pointed at him was black, approximately three feet long, with a clip,
and a red scope or laser sight.
While T.J. was being interviewed, another officer interviewed A.B., who stated that
the car was a bronze Cadillac DeVille. And A.B. gave the offic er the car’s license plate
number. A.B. described the driver as a “[b]lack dude, his hair ’s probably about an inch
and a half off his head.” But A.B. had difficulty judging the black male’s age, stating he
was “[m]id 20s, maybe. I don’t know, man. It’s hard to judge black people because they—
they say black don’t crack, so y ou can be thinking that somebod y’s 30 and they’re 60.”
During the officer’s interview w ith A.B., another eyewitness ap proached and asked,

1 T.J. said he was familiar with guns from playing the video game Call of Duty.
2 While T.J. was speaking with an officer, a woman approached T. J. and inserted herself
into the conversation stating th at the car was a bronze Cadilla c DeVille. After T.J. was
asked to describe the color of the car, he stated it was a “really light brown.”

4
“[i]sn’t this him, [A.B.]?” and showed him a picture of the Fac ebook profile of “Da King
Davis” on her cell phone. A.B. responded, “[y]eah, that’s him. That’s him.”3
Looking up the license plate num ber, provided by A.B., police d iscovered it was
registered to a gold Cadillac DeVille, owned by a female, who r esided in an apartment
building in a different area of Duluth. Police drove to that a ddress to look for the car,
which was found in an alleyway le ss than one block from the reg istered owner’s address.
The car’s driver’s side door was open and the engine was warm. Officers then observed
two adults, one later identified as appellant DeAngelo Terrell Davis, and a child, leaving
the registered owner’s address. The registered owner was Davis’s former girlfriend.
When asked about the car, Davis stated he has a Cadillac, but that he does not drive
it because it is under repair in the alley. Davis insisted that the car door should not be open,
nor should the engine be warm, because the car had been parked in the alley all day. And
when the officers asked Davis where he had been that day, he said he had not left the house,
b u t l a t e r c h a n g e d h i s s t o r y , s t ating that he took his son to a restaurant that afternoon.
Around this point Davis became the primary suspect in the alleged crime and was detained
by officers.
Police officers separately drove T.J. and A.B. to the address w here Davis was
located to conduct a show-up identification procedure.4 Prior to the show-up, officers read

3 A.B. also described the gun as a matte black “AR-15-type assau lt rifle” with a “reddish
yellow” sight on top.
4 A show-up is a “one-to-one confrontation between suspect and witness to crime. A type
of pretrial identification proce dure in which a suspect is conf ronted by or exposed to the
victim or a witness to a crime.” State v. Taylor, 594 N.W.2d 158, 159 n.1 (Minn. 1999)
(quoting Black’s Law Dictionary 962 (6th ed. 1990)).

5
a “show-up advisory” to the witnesses several times during the drive and each witness
signed an advisory.5
On the way to the show-up, A.B. heard over the police radio whe re the show-up
would take place, and commented, “[h]e made it all the way wher e? Probably out east
Hillside or something, huh.” And over the radio, an officer st ated that they would clear
cars out so as to not “taint” the ID. When A.B. arrived at the show-up, Davis was brought
out. A.B. identified Davis as the person who pointed the gun at him, and stated with 100%
certainty he was the suspect.
During the show-up procedure involving T.J., the officer advise d T.J. that the
suspect was standing next to an Asian officer. T.J. then ident ified Davis with 100%
certainty, stating that he knew it was him because of his goatee.
During both show-ups, the witnesses remained in the car about 30 feet from where
Davis was standing. Davis was not restrained or handcuffed, and he slowly spun around a
few times as directed by nearby officers. The elapsed time fro m the alleged crime to the
identifications was around 90 minutes.
Officers then executed a search warrant at his girlfriend’s re sidence, where the
officers found a loaded black rifle-type gun equipped with a scope, with the serial number
scratched off under a mattress in the main bedroom. Investigators took samples, containing

5 The advisory reads: “I, Officer ________, am going to show you a person who might or
might not be the suspect in this incident. Do not assume the p erson is the suspect in this
incident because they are in the presence of [l]aw [e]nforcemen t. Please consider that
clothing may be different. It is OK if you don’t recognize the person. If you are unsure,
do not guess. If you recognize the person, tell me why or how you recognize him or her.”

6
several DNA profiles, from both the rear and forward grips of the gun. Davis could not be
excluded as a contributor. And the major DNA profile from the forward grip sample
matched Davis.
After his arrest, Davis filed a motion to suppress the evidence of the victims’ two
positive identifications of him. He asserted that the procedur e used by the police officers
for pretrial identifications—the two show-ups—violated his cons titutional due-process
rights. The district court denied his motion, and the case proceeded to a jury trial.
Before trial, Davis requested a cautionary instruction on eyewi tness reliability.
Specifically, he requested that the standard jury instruction b e amended to include a
standard cautionary instruction relevant to cross-racial identifications and the presence of
a gun. The district court denied Da vi s ’ s r eque s t e d c a ut i o na r y instruction and gave the
standard instruction instead.
At trial, both T.J. and A.B. testified, as well as several inve stigating officers and
forensic scientists. Both partie s introduced evidence of the p retrial identification
procedures, either through tes timony or body camera footage. T he testimonies given by
T.J. and A.B. were consistent with the above described statements. And Davis testified on
his own behalf. He explained that he spent time with his son t hat day, and did not drive
the Cadillac. Davis’s former girlfriend also testified that Da vis did not drive the Cadillac
that day.
The jury found Davis guilty on two counts of assault and one co unt of possession
of a firearm bearing a removed or altered serial number. Davis was sentenced to concurrent
36-month terms in prison. Davis appeals.

7
D E C I S I O N
Davis first argues that he is entitled to a new trial because t he district court
erroneously denied his motion to suppress a pretrial identifica tion that was inherently
suggestive. Second, Davis asserts that because the district court abused its discretion when
it denied his requested eyewitness-identification jury instruct ion regarding the impact of
race and the presence of a weap on on the reliability of eyewitn ess identification, he is
entitled to a new trial. We address each argument in turn.
I. The district court did not ab use its discretion by denying D avis’s motion to
suppress the pretrial identification evidence.

Davis contends the impermissibly suggestive identification evi dence rendered its
introduction a violation of his due-process rights. He bases this claim on the facts that the
police told both witnesses that the person they were to view was believed to be the suspect,
that the nature of the show-up led witnesses to believe Davis w as in custody because he
was flanked by armed officers in uniform, moving and turning at their direction, and
officers specifically pointed out Davis to both witnesses. This is particularly problematic
because there was no pressing need for a show-up that day, Davi s asserts, rather than a
less-suggestive photographic line up.
Generally, evidentiary rulings rest within the sound discretion of the district court,
and this court will not reverse those rulings absent a clear ab use of discretion.
State v. Griller, 583 N.W.2d 736, 742-43 (Minn. 1998). When reviewing pretrial orders
where facts are undisputed and the district court’s decision is a question of law, we

8
independently review the facts a nd determine, as a matter of la w, whether the evidence
must be suppressed. Taylor, 594 N.W.2d at 161.
Our independent review of ident ification testimony is grounded by the critical
question of reliability. Id. If the identification procedures the police used are tainted by
suggestion, “the result may be irreparable misidentification.” Id. To test the reliability of
identification, we use a two-part test: (1) we first determine i f t h e p r o c e d u r e w a s
unnecessarily suggestive; and (2) if so, we determine, under th e totality of the
circumstances, if the “identification created a very substantia l likelihood of irreparable
misidentification.” Id.
The first inquiry includes the pivotal question of whether the defendant was unfairly
singled out for identification. Id. In Taylor, for example, even though the police conducted
a one-person show-up by having the witness view the defendant a s he was removed from
a squad car in handcuffs, the court found the procedure was not impermissibly suggestive
because he was not singled out bas ed on a description, but beca use the witness already
knew his nickname. Id. at 161, 162. Similarly here, Davis was not singled out based on
his description. Although the witness descriptions from the sc ene were far from precise,
Davis was singled out based on the license plate of the car obs erved by a witness at the
crime scene. The car was registered to his former girlfriend a nd when police went to her
apartment, they found the former girlfriend, Davis, and the chi ld together. The car, still
warm with its door open, was nearby.
This tie between Davis and the license plate of the car leads us to conclude he was
not impermissibly singled out for a show-up. This conclusion is reinforced by our decision

9
in State v. Nunn. 399 N.W.2d 193 (Minn. App. 1987), review denied (Minn. Mar. 13, 1987).
In Nunn, police suspected that the defendant was involved in a robbery after a witness gave
a license plate number to the police, and the police located a car with that license plate
number outside of a residence, which the defendant was seen lea ving. Id. at 194. Within
an hour of the robbery, police took the defendant back to the s cene of the crime for a
show-up procedure and two witn esses positively identified the d efendant as one of the
robbers. Id. at 195. Based on these facts—not dissimilar to those before us—we concluded
the show-up was not impermissibly suggestive.6 Id. at 196.
But even if the identification procedure here was impermissibl y suggestive, we
would turn to the second part of the two-prong test and assess whether, in light of the
totality of the circumstances, the identification is reliable. Taylor, 594 N.W.2d at 161. In
doing so we consider five factors: (1) the witness’s opportunity to view the criminal at the
time of the crime; (2) the witn ess’s degree of attention; (3) t he accuracy of the witness’s
prior description of the criminal; (4) the level of certainty d emonstrated by the witness at
the photo display; and (5) the time between the crime and the c onfrontation.
State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). We address each factor below.
First, the assault occurred dur ing the middle of the afternoon on a sunny day, and
both witnesses were able to get a “good look” at Davis’s face. This weighs in favor of

6 Based upon the facts before us, our decision on whether the sh ow-up procedure was
impermissibly suggestive is a close one. But ultimately, we conclude that the show-up was
not impermissibly suggestive because of the license plate identification. Further, because
Davis had already been identified by his Facebook picture, this process could be considered
merely confirmatory. Taylor, 594 N.W.2d at 162.

10
finding the identifications reliable. Second, T.J. stated that he saw the man’s face, but he
was focused on the gun and scared for his life. He thought that the man was going to “put
at least a clip in [him]” and he could see the man had his fing er on the trigger of the gun.
A.B. testified that because he had been robbed before, he knew to “look at [his] face, look
at the gun” and to “make sure [he knew] the make, model, [and] year of the vehicle.” More
importantly, A.B. was able to accurately describe the vehicle a nd remember the license
plate number. The second factor w e i g h s f o r f i n d i n g A . B . ’ s i d e ntification reliable, but
slightly against T.J.’s identification.
Both witnesses provided accurate descriptions of Davis. T.J. described the man as
being a black male, 5’8” or 5’9” in height, in his early 20s with really short black hair and
an average or muscular build. A.B. provided the police with a similar description. T.J.
made no mention of any facial hair, but later stated that he recognized Davis because of his
goatee. And both T.J. and A.B. identified Davis with 100% certainty.7 Initially, T.J. made
no mention of any facial hair, but later stated that he recogni zed Davis because of his
goatee. This slightly reduces the reliability of T.J.’s identi fication. But overall, based on
the facts, the third and fourth factors weigh in favor of findi ng the identification of Davis
reliable.

7 Davis asserts that social scien ce research has shown that ther e is no statistical relation
between the accuracy of an identification and the witness’s degree of certainty. See, e.g.,
Steven D. Penrod & Brian L. Cutler, Improving the Reliability of Eyewitness Identification,
2 J. Psych. 281-90 (1988); Vicki L. Smith et al., Eyewitness Accuracy and Confidence:
Within-Versus Betwee n-Subjects Correlations , 74 J. Applied Psych. 356 (1989). We
acknowledge this research regarding the reliability of a witness’s certainty, but here, given
the totality of the circumstances, we conclude the witnesses’ identifications are reliable.

11
Finally, about 90 minutes passed between the crime and the show-up identification.
While Davis argues that 90 minutes is an extended period of time, other cases have upheld
identification evidence obtained after a longer period of time. See id. at 922 (48 hours);
State v. Lushenko, 714 N.W.2d 729, 733 (Minn. App. 2006) (three hours), review denied
(Minn. Dec. 12, 2006). The final factor weighs in favor of fin ding the identifications
reliable.
He r e , T. J . a nd A. B. h a d a m pl e t im e t o vi e w Da vi s , de s c r i be d hi m to police and
identified him with 100% certainty. Perhaps most importantly, A.B. accurately described
the car and provided the officers with the license plate number . After analyzing all the
factors, both identifications are also independently reliable and did not create a substantial
likelihood of irreparable misidentification.
II. The district court did not abuse its discretion when it den ied Davis’s request
for an eyewitness-identification jury instruction on cross-racial identifications
and the presence of a gun.

Finally, Davis argues that the district court abused its discr etion by declining to
adopt his proposed jury instruc tion on eyewitness identificatio n. Jury instructions are
entrusted to the district court’s discretion, and a district court’s refusal to give a requested
instruction will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d
43, 50 (Minn. 1996).
Davis requested that the jury instruction be amended to include t h e f o l l o w i n g
additions, in bold, to the standard cautionary instruction on eyewitness testimony:
Testimony has been introduced tending to identify the
defendant as the person observe d at the time of the alleged
o f f e n s e . Y o u s h o u l d c a r e f u l l y evaluate this testimony. In

12
doing so, you should consider suc h factors as the opportunity
of the witness to see the person at the time of the alleged
offense, the length of time the person was in the witness’s
view, the circumstances of that view, including light conditions
and the distance involved, the stress the witness was under at
the time and whether the eyewitness saw a weapon and was
distracted, and the lapse of time between the alleged offense
and the identification , and whether the witness and
defendant’s difference of race affected the accuracy of the
identification. You should also evaluate whether the
procedures employed by law enforcement had an impact
on the accuracy of the identifi cation. It is your duty to
evaluate not only the credibility of the witness, but also the
accuracy of the identification.

10 Minnesota Practice CRIMJIG 3.19 (2016). The distr ict court declined to add this
language, citing State v. Thomas , 890 N.W.2d 413 (Minn. App. 2017), review denied
(Minn. Mar. 28, 2017).
I n Thomas, the defendant, a black male, r obbed a white male at gun point . 890
N.W.2d at 415. Officers located a suspect matching the defenda nt’s description and the
victim identified that suspect at a show-up procedure. Id. at 415-16. Before trial, the
defendant proposed that the district court modify CRIMJIG 3.19 by adding a cross-racial
instruction. Id. at 416. The district court denied the request, noting the def endant did not
intend to call any expert witnesses, and this court held that “it is not an abuse of discretion
for a district court to refuse to give such an instruction when t he r e ha s be e n n o e xpe r t
testimony to support giving the instruction.” Id. at 420. Here, like Thomas, no expert
testimony was offered to support giving the proposed instruction.
While we acknowledge that scie ntific studies recognize the fal libilities of
eyewitness testimony, it is not the role of this court to exten d or change existing law.
13
Tereault v. Palmer,
413 N.W.2d 283, 286 (Minn. App. 1987), review denied ( M i n n .
Dec. 18, 1987). That task falls to the supreme court or the legislature. Id. And, as we
stated in Thomas, “[t]he day may come when our supreme court wishes to endorse a jury
instruction regarding cross-racial identification and reassess its decisions regarding the
admissibility of expert testimony on eyewitness identification. But that is not our role.” 8
890 N.W.2d at 420.
Davis argues Thomas is distinguishable because it “did not discuss an instruction on
the presence of a firearm, which was requested here.” But both cases involved the presence
of a firearm. Then Davis conten ds that scientific studies and caselaw “that recognize the
frailties of eyewitness identification and endorse jury instructions that include language on
cross-racial issues and the presence of a weapon are legion.” And he further asserts that
this court should reject Thomas as wrongly decided because t he holding and rationale in
Thomas are unsound. Davis cites one non-binding case to support his argument, but the
Minnesota Supreme Court has never held that the relevant patter n jury instruction is
inadequate or misstates the law. Nor has the supreme court decided Thomas was erroneous.
Finally, even if the omission of the requested instruction was error, the error was
harmless. Davis’s closing argu ment focused on the credibility of the victims’ testimony
8 The Minnesota Supreme Court Rules of Evidence Advisory Committee filed a report on
October 1, 2018, recommending “that the factors juries should consider when evaluating
the reliability of eyewitness identification evidence should be updated and modernized.”
But the committee could not agree on the details of the appropriate jury instruction. Report
on Eyewitness Identification (Oct. 2018), http://www.mncourts.gov/mncourtsgov/media/
PublicationReports/Publications-Reports-Rules-of-Evidence-Advisory-Committee-
Summary-Report.pdf

14
and identification of Davis, including references to the presence of a firearm and the racial
differences between Davis and A.B . and T.J. Davis’s counsel to ld the jury to carefully
consider the reliability of pretrial identifications and stated the reasons why they can be
unreliable. Further, the district court specifically instructe d the jury to carefully evaluate
A.B. and T.J.’s testimony and identified a number of factors the jury should consider while
doing so. We are not persuaded, given the record, that instructing the jury on cross-racial
identification would have altered the verdict.
Because caselaw supports the district court’s decision to deny giving the proposed
jury instruction, and because it is not this court’s position t o change existing caselaw, we
conclude that the district cour t did not abuse its discretion b y denying Davis’s request to
amend the standard jury instruction to include references to th e gun or cross-racial
identifications. Nor did the district court err in denying the motion to suppress the pretrial
identification procedures. Accordingly, we affirm.
Affirmed.