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State of Minnesota v Ferguson

Case No. A10-0499 (MN S.Ct., Oct. 19, 2011)

Calvin Ferguson was convicted in Hennepin County District Court of first-degree premeditated murder for the death of Irene Burks. The court then sentenced Ferguson to life in prison without any possibility of release. Ferguson has appealed his conviction and raises eight separate issues. On appeal, Ferguson argues that (1) the district court abused its discretion by admitting hearsay evidence that “C.J.” or “B.J.” (Ferguson’s street names) shot Burks; (2) the court abused its discretion by allowing into evidence Ferguson’s bad acts testimony from another trial; (3) the State committed prosecutorial misconduct; (4) the court erred by precluding Ferguson from calling an expert witness on eyewitness identification; (5) the court abused its discretion by excluding evidence of an alternative perpetrator; (6) the court erred by limiting Ferguson’s impeachment of a witness; (7) the court erred by refusing to instruct the jury on circumstantial evidence; and (8) the cumulative effect of trial errors deprived him of a fair trial. We reverse on the alternative perpetrator issue and remand for a new trial.

Irene Burks was shot to death on September 12, 2006. At approximately 5:30 p.m. on the day she was shot, Burks went to the home of K.C. K.C. and Burks were close friends and routinely saw each other several times a week. After Burks arrived at K.C.’s home, she did not go inside the home but remained outside to speak with K.C. and K.C.’s daughter. Burks asked K.C. if she could use K.C.’s telephone. K.C. went back inside her home to get the telephone. Burks remained outside the home and continued to visit with K.C.’s daughter, who was standing in the doorway of the home. After retrieving the telephone, K.C. returned to the doorway. As she was handing the telephone to Burks, K.C. looked up and saw an African American man wearing a black hooded sweatshirt standing between two trucks parked across the street. As K.C. watched the man, he started running toward K.C.’s home. K.C. became alarmed when she saw a large object in the man’s hand, so she yelled out Burks’s name. When the man reached K.C.’s gate, he fired a gun at Burks. K.C. reacted by pulling her daughter inside the home and closing the door. K.C. testified that from inside her home, she heard approximately six more gunshots being fired outside. She then called the police. When the police arrived, K.C. opened the door and saw Burks lying in the front yard. K.C. located all of her children and saw that her daughter’s ankle was bleeding. The police determined that the daughter had suffered a gunshot wound and treated her injury at the scene. Meanwhile, an ambulance took Burks to the Hennepin County Medical Center, where she died of the injuries she sustained as a result of the shooting.

Several eyewitnesses observed some of the events surrounding the shooting. W.O., A.Q., J.W., and O.M. all lived in the neighborhood. W.O., A.Q., and J.W. reported seeing an individual wearing a dark-colored hooded sweatshirt leaving the scene of the shooting. A.Q. and J.W. stated that they saw the individual running toward a parking space in an alley opposite K.C.’s home. Shortly afterward, they observed a brown sedan back out of the same parking space and hit a garage before the sedan headed south down the alley. O.M. observed an individual get into a brown sedan, back into the garage, and head south down the alley.


Judge(s): Paul H. Anderson
Jurisdiction: Minnesota Supreme Court
Related Categories: Constitutional Law , Expert Witness
Supreme Court Judge(s)
Barry Anderson
Paul Anderson
Christopher Dietzen
Lorie Gildea
Helen Meyer
Alan Page
David Stras

Appellant Lawyer(s) Appellant Law Firm(s)
Sara Martin Office of the Minnesota State Public Defender
David Merchant Office of the Minnesota State Public Defender

Appellee Lawyer(s) Appellee Law Firm(s)
Lee Barry Office of the Hennepin County Attorney
Michael Freeman Office of the Hennepin County Attorney
Lori Swanson Office of the Minnesota Attorney General



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with which the defendant is charged." id. (internal quotation marks omitted). such extensively queried during voir dire about the frailties of eyewitness as part of an agreement on a federal considered in light of all of the evidence in the record, failed to create an inherent admissible." id. at *45. the court asked new jersey's criminal practice committee and iv. these telephone calls. folkens testified that burks's mother had called and said that "she ferguson's counsel impeached johnson with his felony convictions for being an this procedure is subject to exceptions if a blind examination is not possible. in said had given ferguson the gun in question, had been in prison at the time of the corrected her mistake. the record indicates that the testimony offered was ferguson's *2. copeland, 226 s.w.3d 287 (tenn. 2007); jordan v. state, 928 s.w.2d 550 (tex. crim. walked into an alley by the deli, and shortly afterward, a tan ford taurus came out of the ________________________ rule 404(b) to explain why the witness did not testify truthfully at the defendant's first in the shooting; and (3) evidence that johnson had a conviction for "accomplice after the eyewitness testimony was "counter-intuitive," we relied on our conclusion in transported together to the hennepin county courthouse. johnson testified that he knew c-27 system variables include the following: blind administration, preidentification shared guns with his fellow gang members. misstatements of evidence (footnote continued on next page.) of the shooting. a.q. and j.w. stated that they saw the individual running toward a indicate that several factors affecting the reliability of eyewitness identifications are not calculated to elicit or insinuate inadmissible character evidence is error " `whether the asked the court to allow her to question folkens about johnson's reputation for eyewitness reliability is "squarely within the discretion of the trial judge" (quoting united (discussing impeachment by evidence of character under rule 608); see also 3 mueller & reported seeing an individual wearing a dark-colored hooded sweatshirt leaving the scene rule 404(b). accordingly, i would hold that the district court erred by allowing drugs." ferguson went on to testify that he used guns in his capacity as an enforcer, and [must be] relevant," reyes, 18 f.3d at 70, and the probative value of the evidence for its ferguson sought to present the jury with an alternative perpetrator theory in i trust that during ferguson's new trial, the district court will carefully consider whether the constitutional right to confront and cross-examine one's accusers." united states v. state of minnesota defendant's guilt that corroborated (and was corroborated by) the other evidence that could affect the reliability of eyewitness identification and the state's burden to opportunity to cross-examine the declarant. crawford v. washington, 541 u.s. 36, 68 reason."); 1 christopher b. mueller & laird c. kirkpatrick, federal evidence 4:13 (3d witness. "the term `unfair prejudice,' as to a criminal defendant, speaks to the capacity alleged character trait"); united states v. himelwright, 42 f.3d 777, 782 (3d cir. 1994) the increase in attention devoted to the science of eyewitness identification has transcripts along with hundreds of scientific studies." id. the studies presented at the him that she had heard that the person who shot her daughter was named "b.j." burks's [u]se of 404(b) evidence for corroboration [has] inherent complications. almost 1,000 court cases, collectively." id. at *36 (citation omitted). name was b.j., and street names made it "easier to get away with like a crime"; (3) gang approach, as we suggested in litzau, would have been to allow testimony that folkens id. at 688. we have also held that the state commits prosecutorial misconduct when it 15 k.c.'s daughter, who was standing in the doorway of the home. after retrieving the the applicability of social science research to law. experimental methods and findings whether expert testimony would assist the trier of fact. folkens also testified that burks's mother called back a second time to say that she of witnesses by proof of untruthful disposition"). character testimony requires a variables,"12 identifications, we conclude the jury might have reached a different result if it had known hennepin county anderson, paul h., j. purpose, intent, etc. and therefore be admissible under 404(b). the label pdf. the report summarizes the results of an ajs study that sought to determine which he wore a black hooded sweatshirt with the letters "rtb," which was short for the id. we have said that "[t]his general exclusionary rule is grounded in the defendant's constitutional right to a fair trial." state v. ness, 707 n.w.2d 676, 685 (minn. 2006) truth or for a nonhearsay purpose, the probative value of the evidence must not be q. so you didn't need to do an inquiry into [the database] to look at all a man pacing back and forth nearby. e.w. testified that the man was african american, friend l.s., also known as "killer," was "telling on him" for some incident that ferguson c-11 harris over [the witness] and provided an explanation for [the witness's] willingness to c-24 new trial. these two issues are eyewitness identification and confrontation. i will evidence offered for a purpose other than to prove the truth of the matter asserted johnson's testimony unless the jury inferred that ferguson acted in conformity with his the assistant hennepin county medical examiner, who conducted the autopsy of here, the state attempts to defend the excerpts dealing with ferguson's street appellant. of the crime. the inquiry is not rejected because character is irrelevant; on testimony ferguson gave at a prior federal trial.2 an abuse of discretion. i trust that on remand, the foundation requirement will be applied ferguson's counsel then had the opportunity to vigorously cross-examine folkens and reference to ferguson's prior police contacts corroborated johnson's testimony that ferguson said he had to "take care of it" because c-28 state's key witness. "ninety-two percent of the participating experts had published articles or books on facts which the evidence is offered to prove and must not include the defendant's to present a complete defense. having held that the district court erred when it excluded 10 c-32 how. if similar past acts were corroborative only because they showed the overpersuade them as to prejudge one with a bad general record and deny presented to establish guilt."). accordingly, the jury may have misconstrued the b.j. and descriptions of the shooter's physical appearance and jennings's car matches witnesses' asked johnson, "do you remember telling my investigator that [ferguson] did not know clark ii did not purport to render testimony given at a prior proceeding immune from expert testimony might constitute error. see united states v. jackson, 50 f.3d 1335, 3 13 (u.s. aug. 5, 2011). a recent report by the american judicature society (ajs) confirms qualified as an expert by knowledge, skill, experience, training, or homicide. to focus his investigation on calvin ferguson, who went by the street names c.j. and b.j. identifications); state v. cheatam, 81 p.3d 830, 842 (wash. 2003) (holding that the trial abused its discretion by admitting hearsay evidence that "c.j." or "b.j." (ferguson's committee on the model criminal jury charges to draft revisions of jury instructions trial testimony. cautionary jury instruction. moreover, the court should look closely at new jersey's to other police involvement or arrests or things like that." the court then cautioned the number of times that a police officer testifying in a criminal case may not, under the exchange for a promise by the federal prosecutor to, at the prosecutor's complete a. yes, sir. under the comment to minn. r. crim. p. 11, "when the omnibus hearing is held 8 abused its discretion by excluding such evidence. id. at 547. we then held the court did estimator variables include the following: stress, weapon focus, duration, distance examination."); see also state v. scacchetti, 711 n.w.2d 508, 513 (minn. 2006). the received the information from a cousin. burks's mother also testified that she called 295 u.s. 78, 88 (1935)). state v. atkinson, 774 n.w.2d 584, 589 (minn. 2009)). included within this right is "the statements of others.' " 650 n.w.2d at 182 (quoting state v. williams, 525 n.w.2d 538, from folkens's work as a narcotics and gang officer. second, the state misstated facts and saw that her daughter's ankle was bleeding. the police determined that the daughter name b.j., and that when he and ferguson were in jail together, ferguson told him "had michael o. freeman, hennepin county attorney, lee w. barry, assistant county knowledgeable declarant (and therefore presumably believed by the jury). that a person identified as either b.j. or c.j. committed the murder. the state also general character and propensity. evidence, trial courts may not exclude expert testimony [regarding eyewitness reliability] scientist who testified that the cartridge casings found at the scene were the type used in a eyewitness testimony. nevertheless, if ferguson offers eyewitness identification expert connecting jennings to the victim. not a hearsay exception but rather is nonhearsay. gunshots being fired outside. she then called the police. when the police arrived, k.c. evidence might corroborate a witness's testimony by showing plan, garage, and head south down the alley. other act alone shows that punishment is deserved." 1 mueller & kirkpatrick, supra, the admission of out-of-court statements by burke's niece that c.j. or b.j. shot burks the form of opinion or reputation, but subject to these limitations: (1) the she has chosen the suspect from the lineup, id. at *21, or fails to tell the witness that the folkens that folkens knew ferguson from his work in the gang unit and in narcotics. 37-38 (minn. 2004); state v. mcdonough, 631 n.w.2d 373, 388 (minn. 2001). present a complete defense. state v. larson, 787 n.w.2d 592, 597 (minn. 2010) (citing decided whether the district court abused its discretion when it excluded expert distortion, contamination, or false memory. but scientists have isolated many of the i am mindful of the state's concern that without some explanation the jury would witness, id. at *72, or the suspect "brandished" a weapon, id. at *79. eyewitnesses also the state introduced additional evidence suggesting that irene burks was being of discretion.8 precinct and the description you had, you believed that that person had arguments defense counsel urged the jury to view the identifications of 1026 (8th cir. 2008) ("unfair prejudice does not refer to the legitimate probative force of the existence of problems with eyewitness misidentification. see gary l. wells, nancy johnson's prior statement that ferguson denied involvement with the murder ness, 707 n.w.2d at 685. that the fifth amendment of the united states constitution prohibited the use of his prior standing between two trucks parked across the street. as k.c. watched the man, he also testified that ferguson told him that a fellow gang member called "izzy" was burks. k.c. was the only eyewitness who was able to identify ferguson from a photo eyewitness identification, 32 wm. mitchell l. rev. 1, 19-21 (2005). under these was being transported to the hennepin county courthouse, but that ferguson thought his 772 n.w.2d 459, 465 (minn. 2009). that the defendant does not confuse or mislead the jury. state v. hannon, 703 n.w.2d findings," id. at *36. the court concluded that these revisions were necessary "because be left to speculate as to why the investigation focused on ferguson; but a better stored information.' " id. at *18 (citing elizabeth f. loftus, eyewitness testimony 21 relating to eyewitness identification and the factors that can lead to misidentifications. might logically be persuasive that he is by propensity a probable perpetrator running toward her as she was standing next to the victim. k.c. also testified that she the witness for truthfulness has been attacked by opinion or reputation and narcotics were improper because they suggested that folkens knew ferguson from context for the police investigation. we review a district court's evidentiary rulings for the state's case and there is no substantial corroboration of that identification by other on the erroneous exclusion of the alternative perpetrator evidence. nevertheless, i write abstracts. by contrast, the special master estimated more than two burks three days before the shooting, and (6) the fact that jennings was not in custody on ferguson also argues that the state committed misconduct by stating: race bias, private actors, and speed of identification. id. at *28-35. prove the truth of what is asserted in the statement." state v. litzau, 650 n.w.2d 177, there is no one answer to the problem, but there are a number of safeguards ferguson claims the admission of the b.j. and c.j. hearsay testimony caused him folkens would later testify that he knew from his time working in united states v. bailey, 319 f.3d 514, 520 (d.c. cir. 2003) (emphasis original); see also been identified to you as calvin ferguson, isn't that correct? as previously noted, the state chose seven excerpts from ferguson's testimony at messages in code. when viewed in the context of the ultimate issue in this case-- then "whether the error was harmless beyond a reasonable doubt." state v. hall, defense counsel referred to this testimony as grand jury testimony, but later (4) ferguson wore jeans, black shoes, and a black hoodie with "rtb" airbrushed on the we concluded that the specific evidence suggesting the alternative perpetrator's presence c-33 defend evidence that ferguson was an enforcer by asserting that the evidence criminal acts, or ill name among his neighbors, even though such facts judge." (citing state v. coe, 298 n.w.2d 770, 771-72 (minn. 1980).) o.m. saw ferguson at the scene. the state's assertion--that w.o. and o.m. burks's mother identified c.j. or b.j. as the shooter in her first telephone call to folkens. with the foregoing background in mind, i now turn to my analysis of ferguson's c-7 14 id. at *16. testimony was not admissible as corroboration evidence. therefore, because the state 10 at issue in helterbridle and miles, the testimony of k.c., the single eyewitness who " `it is permissible to introduce evidence of a motive of the third person to commit the that burks's mother called folkens to say that she heard that c.j. or b.j. shot irene burks. province of the jury"); state v. hollen, 44 p.3d 794 (utah 2002) (reasoning that exclusion identification. prosecutors do not have to prosecute if they think the to me, and that was calvin ferguson. was in several ways similar to the descriptions of the shooter provided by witnesses. that evidence fits into a chain of logical inferences, no link of which may be the inference the contrary, it is said to weigh too much with the jury and to so street names) shot burks; (2) the court abused its discretion by allowing into evidence witness."). here, the record of the bench conference does not contain the basis for the the safeguards listed in helterbridle were present in this trial. appellant gang members use street names to help them get away with crimes. ferguson stated that unit, worked in narcotics, all of those years of experience you had to have been gratuitous and served only to imply that ferguson was a person of bad "threshold showing that the evidence the defendant seeks to admit has an `inherent fact to first-degree murder." we review evidentiary rulings for an abuse of discretion. and (8) the cumulative effect of trial errors deprived him of a fair trial. we reverse on the daughter." folkens went on to testify that his conversations with burks's mother led him admission of ferguson's street name testimony and ferguson's other federal testimony reversed and remanded. rolling 30s bloods gang; (2) the rolling 30s bloods had street names, ferguson's street to the description of the shooter, the alternative perpetrator's vehicle matched the right to present evidence showing that an alternative perpetrator committed the crime the sixth amendment to the united states constitution provides a defendant with "blind." accomplice after the fact, fleeing a peace officer in a motor vehicle, third-degree adequately protect defendants against misidentifications, the new jersey court revamped evid. 401, 403, 801, or 804. additionally, ferguson argued that his testimony in (2006). there are also a growing number of appellate decisions in other jurisdictions to the jury, we fully agree with the trial court in this case that the jury reasoning that "[t]he abuse testimony demonstrated the degree of control exercised by prior police contacts. moreover, the state's reference to folkens's 21 years of experience (footnote continued from previous page.) and some are not--called "estimator variables."13 the credibility of a witness may be attacked or supported by evidence in c-10 in the third precinct, he "would get to know" members of the community, and during with the foregoing principles in mind, and the reputation evidence will be admitted if c-34 of which she received when she was lying on the ground. the state also called a forensic ferguson to the shooting, as well as evidence that no other eyewitness identified c-22 evid. 404(b), which forbids the use of other crimes, wrongs, or acts to prove character in c-20 v. vance, 714 n.w.2d 428, 436 (minn. 2006)). when reviewing for an abuse of silva, 380 f.3d 1018, 1020 (7th cir. 2004); see also taylor, 545 f.3d at 335. on remand, evidence that ferguson used the name "b.j." "to make it easier to get away with crimes" court also explained that the admission of testimonial statements does not violate the q. and you drew upon that as your experience as an officer who had returning to the deli at around 4:00 p.m. shortly thereafter, burks again left the deli. "[n]inety percent or more" found ferguson objected to the admission opened the door and saw burks lying in the front yard. k.c. located all of her children id. at 375 (citing harrison v. united states, 392 u.s. 219 (1968)). but our holding in evidence offered in atkinson. in particular, jennings's physical appearance matches c-4 protocols, investigators are instructed to conduct "blind" photo lineups; that is, any jersey supreme court decision, in addition to the factors our court has set out in miles tattoo of the letters c.j. on his arm, and three days before the shooting--september 9, 123 f.3d at 653. doubt. hall, 764 n.w.2d at 842. an error is harmless beyond a reasonable doubt " `[i]f account when assessing eyewitness testimony. the eyewitnesses were all the error were not committed. state v. quick, 659 n.w.2d 701, 716 (minn. 2003) hennepin county protocol for photo lineups, adopted in november 2003, outlines several (2004) ("where testimonial evidence is at issue . . . the sixth amendment demands what constitute a reasonable inference based on the evidence. therefore, i would conclude he fired a gun at burks. k.c. reacted by pulling her daughter inside the home and closing governed by minn. r. evid. 702, which states: ferguson's bad acts testimony from another trial; (3) the state committed prosecutorial descriptions of the shooter's car. both pieces of evidence suggest jennings was present denied ferguson his constitutional right to present a complete defense and entitles him to had heard from the community that a c.j. was responsible for shooting her daughter." not possible. folkens's report does not indicate why the photo lineup was not conducted the state may not show defendant's prior trouble with the law, specific identified ferguson, was central to the state's case. testimony was necessary to corroborate the testimony of burks's mother and sergeant because we are remanding for a new trial on other grounds, our court has not name as being corroborative of the hearsay evidence that "c.j." or "b.j." shot burks. but ferguson argues that the state committed misconduct by eliciting testimony from court " `should follow the clear wording of rule 404(b) and look to the real purpose for complected." she said his nose was "a little wider," and he had "medium-sized lips." evidence may refer only to character for truthfulness or untruthfulness, and anything about [the murder]?" the state objected, and the court upheld the objection on science require admission of eyewitness identification expert testimony and/or a id. at *36-37. this consensus marks a lineups, from laboratory experiments to dna exonerations, the record *37 (citations omitted). 4 denied the opportunity to present expert testimony on the reliability of these calvin ferguson, confrontation problem. although ferguson does not make this argument, i nevertheless confrontation clause if the statements are not offered to prove the truth of the matter in response to ferguson's foundational evidence, the state argues that there must the exclusion of expert testimony on eyewitness identification might constitute an abuse discretion when excluding expert testimony on eyewitness identification under the alternative perpetrator evidence is admissible only if the defendant makes a charged offense"). was compounded when the state in its closing argument asked the jury to use ferguson's 30s bloods. he stated that he and other members of the rolling 30s bloods had street and that relevance does not depend on a defendant likely acting in conformity with an attorney, minneapolis, minnesota, for respondent. this context and thus violated the court's pretrial order regarding testimony of ferguson's 182-83 (minn. 2002) (quoting united states v. reyes, 18 f.3d 65, 69 (2d cir. 1994)); see may, however, be admissible for other purposes, such as proof of motive, the supreme court of new jersey elaborated: perjure herself on his behalf at the first trial." id. at 677. although we called the abuse state's objection, the arguments, or the reasons for the ruling by the court. therefore, on a10-0499 perpetrator evidence does not end our inquiry. to determine whether the erroneous c-18 district court conducted an off-the-record bench conference out of the presence of the explain the inclusion of ferguson's picture in the photo lineup shown to the state's key support of the facts set forth above. the state also introduced ferguson's testimony from the court did not address either party's other arguments, including ferguson's minn. r. our conclusion that the district court erred when it excluded the alternative ferguson in the anoka county jail in december 2008, during which time both men were also minn. r. evid. 801(c). hearsay evidence is generally not admissible because "it does not argue that the evidence was admissible for any other legitimate purpose, i would respondent, exclusion of the alternative perpetrator evidence infringed on ferguson's constitutional c-15 test, the probative value of the testimony was substantially outweighed by the danger of evidence). we have previously concluded that juries can misunderstand tip evidence as alternative perpetrator issue and remand for a new trial. this error infringed upon his constitutional right to present a complete defense. ferguson eyewitness identification; (5) the court abused its discretion by excluding evidence of an as previously noted, burks's mother and sergeant folkens disagree on whether (stating that defendant's other acts "may explain the conduct of other people, apparently evidence involved eyewitness misidentification.' " id. at *9 (quoting another source). 498, 506 (minn. 2005) (citing taylor v. illinois, 484 u.s. 400, 411 n.15 (1988). "[n]ationwide, `more than seventy-five percent of convictions overturned due to dna a. yeah, with the combination of c.j. and b.j., that meant only one person state v. nissalke, 801 n.w.2d 82, 99 (minn. 2011) (quoting state v. larson, 788 n.w.2d and helterbridle. if the expert eyewitness testimony is not "otherwise appropriate," the the admission of other acts evidence is a "close call," the evidence should be excluded. therewith," plainly the rule would call for exclusion. on the other hand, proving identification beyond a reasonable doubt are other safeguards. the balancing test, "the non-hearsay purpose by which the evidence is sought to be justified 5 previously been ruled inadmissible). prepared a second photo lineup consisting of profile views of the same individuals for these purposes are not exceptions to the prohibition against using evidence of a person's says, my mom was standing next to me at the time she saw the defendant. prohibited because of its prejudicial effect. more specifically, the court said: 11 (footnote continued on next page.) did not describe. johnson testified that ferguson told him--again without referring to a defects in the photo lineup procedure used here and the recent developments in social ferguson's prior contacts with the police when folkens testified about why he knew that and lighting, witness characteristics, characteristics of the perpetrator, memory decay, (cal. 2000); benn v. united states, 978 a.2d 1257 (d.c. 2009); echavarria v. state, 690 p.2d 709 (cal. 1984), overruled on other grounds by people v. mendoza, 4 p.3d 265 ii. atkinson, in which we noted that evidence of an alternative perpetrator's presence at the warrant the court's attention. identity as the shooter in the charged offense without first drawing an inference as to his guilt shall not escape or innocence suffer.' " id. at *54 (quoting berger v. united states, ferguson to present an alternative perpetrator defense. ferguson presented multiple 707 n.w.2d at 686 (quoting state v. frisinger, 484 n.w.2d 27, 32 (minn. 1992)). in eyes," a broad nose, and "chubby" lips. the man was wearing a black hooded sweatshirt court-appointed special master. id. at *1. at the hearing, the special master heard burglary, and being a felon in possession of a firearm. ferguson's counsel also elicited the common law required: unavailability and a prior opportunity for cross- juries damning information that is not subject to cross-examination . . . would eviscerate tahash, 280 minn. 155, 157, 158 n.w.2d 504, 506 (1968)). the use of questions c-17 we review a district court's evidentiary rulings, including the admission of expert evid. 801(d)(2)(a) statement of a party-opponent exception, and the minn. r. defendant unless the declarant is unavailable and the opponent has had a prior misconstrue the tip as substantive evidence of the defendant's guilt. see id. ("[i]t is she left the deli for a while and purchased some food at a nearby restaurant before here, the state's leading questions compounded the previously identified problem in cases where the eyewitness identification was a particularly important factor in the the alternative perpetrator evidence, and that the court's error was not harmless beyond a (internal quotation marks omitted). courts may limit the defendant's evidence to ensure c-6 as ferguson notes, a witness's prior inconsistent statement is not hearsay, and is of unfair prejudice because of the danger that the jury would misuse the testimony for its the united states supreme court, explaining, "research shows that juries tend to `over [who] had killed her accumulated this information and you knew that that combination of 7 trial. id. at 677-78. we affirmed the district court's decision to admit this evidence, be offered into evidence for the purpose of explaining actions undertaken pursuant to a i. several jurisdictions--while declining to hold that a district court abuses its refer to the substance of statements given to them by nontestifying witnesses in the from asking johnson about johnson's statement to ferguson's investigator that ferguson order to show "action in conformity therewith." the state argues that ferguson's 2006--burks spoke to him on the telephone. further, jennings's physical description wrongful convictions across the country. conclude that it was improperly admitted. fact to understand the evidence or to determine a fact in issue, a witness grounds, the admission of any testimony by irene burks's mother or sergeant folkens legal state of eyewitness identification. 2011 wl 3715028 (n.j. aug. 24, 2011). this the foregoing factors all work to produce varying but significant rates of character and propensity as a "necessary link in the inferential chain." psychology of eyewitness perception, memory, retrieval, and identification, had been ferguson claims that the district court improperly allowed the state to introduce id. at *16-18. the special master found that, of 64 cognitive psychologists, injuries she sustained as a result of the shooting. a recent opinion by the new jersey supreme court provides an illuminating response to leading questions by the state, folkens explained that when he was on patrol at *45, noting that jurors "do not intuitively understand all of the relevant scientific south down the alley. o.m. observed an individual get into a brown sedan, back into the examination of burks's mother, the state elicited testimony that she called folkens to tell confronted with the realization that the current legal framework fails to eyewitness identification, and many in the group had testified as expert witnesses in eyewitnesses to make accurate identifications from memory. see id. at *18. memory cain, 545 f.3d 327, 335 (5th cir. 2008). in litzau we noted that " `[w]e have said a safeguards against unreliable eyewitness identifications are a factor in determining safeguards and determine if those safeguards are appropriate here. specifically, the court not meant to be exclusive." minn. r. evid. 404(b) comm. cmt.--1989. use of other-acts parking space in an alley opposite k.c.'s home. shortly afterward, they observed a testimony that folkens "worked in the neighborhood," and that "he [knew] mr. ferguson prove guilt beyond a reasonable doubt. (footnote continued from previous page.) ferguson's case and that he had stated, "[y]ou don't get no assistance from helping the allusion to prior misconduct is contained in the question which the prosecutor asks or in evidence may be probative. we noted in helterbridle that "we do not mean to suggest that we think the additional safeguards. proper instruction of the jury on the factors in jury. later, ferguson's counsel made a record of the conference, explaining that she had corroboration evidence requires an inference that the defendant was acting in accordance argues that the district court properly admitted the b.j. and c.j. hearsay testimony to helterbridle and on the fact that the testimony of the several eyewitness was not crucial asserted therein but only to explain the basis for the police investigation of ferguson. ferguson, who was depicted in the second photograph, as the person who shot irene constituted plain error. 648 n.w.2d 681, 687-88 (minn. 2002). we noted, "it appears crime, not the crime itself. id. we then concluded that the remaining evidence, when "[a]llowing agents to narrate the course of their investigations, and thus spread before testimony was admissible to corroborate the testimony of several of the state's witnesses. i. acts (also known as spreigl evidence) is that it might "be used for an improper purpose, fundamental elements of the defendant's defense." id. (internal quotation marks 9 this record, it is not possible to determine whether a proper foundation for the reputation scene of the shooting. finally, jennings was arrested for possession of a firearm without the gang's access and use of guns; clothing worn on "that day"; the hooded sweatshirt truth. moreover, the testimony was of marginal probative value to establish the context him a fair opportunity to defend against a particular charge. information showing the district court why his expert testimony would have helped the another study found a misidentification rate of 41 percent. id. at *10. 12-month reduction in johnson's sentence for another crime and that l.s., who johnson testimony "rehabilitative evidence," id. at 677 n.2, that evidence was actually admissible c-12 defendant's guilt was legally insufficient. c-26 k.c. looked up and saw an african american man wearing a black hooded sweatshirt c.j. hearsay testimony as substantive evidence of ferguson's guilt despite the fact that jurisdictions. it is a compelling argument. as jurists, we must be aware of studies that placing jennings at the scene of the crime but has also offered additional evidence michelson v. united states, 335 u.s. 469, 475-76 (1948) (footnotes omitted). here, there potential of the evidence being used for an improper purpose outweighed mistake or accident. in a criminal prosecution, such evidence shall not be c-2 "rolling 30s bloods," airbrushed in red ink on the back. he said that these colors, (1) it was relevant under minn. r. evid. 401; (2) it was not unduly prejudicial under tendency to connect the alleged alternative perpetrator to the commission of the crime, state v. helterbridle, 301 n.w.2d 545, 547 (minn. 1980). denying him a fair opportunity to defend himself against the charge of shooting burks. [the defendant] was a person of bad character who had frequent contacts with the police." 354 n.w.2d 21, 24-25 (minn. 1984). address this issue to provide guidance to the district court on remand, and to highlight my survey grew out of a court-mandated hearing on eyewitness identification conducted by a but which was based on more than 850 photo lineups collected from four police departments, ferguson argues that the state committed misconduct by arguing that w.o. and with a propensity to commit bad acts. evidence that ferguson was an enforcer for a gang nonhearsay purpose must not be " `substantially outweighed by the danger of unfair character who had contacts with the police through gang and narcotics activities. minn. r. evid. 403; and (3) it fell under two hearsay exceptions, the minn. r. ferguson argues that the district court erred by admitting testimony that c.j. or march 15, 2010. indictment, ferguson pleaded guilty to conspiracy to distribute crack cocaine and testified could use the evidence as to the identity of the shooter. in our decision to affirm the exclusion of the expert testimony in that case: factors that can result in a misidentification by an eyewitness. id. at *18-42. some of except as otherwise provided by the united states constitution, the state constitution, [k.c.'s] ability to observe that individual and then ultimately make this "corroboration" thus merely invites a closer look at exactly how the character of a person in order to show action in conformity therewith. it when it excluded the alternative perpetrator evidence. ferguson argues that the court defense at all." ferguson's counsel also showed that the state agreed to recommend a jennings, (2) their common nickname, (3) jennings's listing as c.j. in burks's phone, approximately 1:30 p.m. on the day she was shot, burks went to a neighborhood deli. the afternoon of september 12, 2006. he said that he saw burks at the deli, and also saw violates ferguson's confrontation rights under the united states constitution. izzy taken care of it, [ferguson] wouldn't have had to do it." the state also claims the required procedures. see amy klobuchar & hilary lindell caligiuri, protecting the 5 to identify ferguson as the person he saw at the scene of the shooting. folkens also presented evidence that ferguson was known as b.j. and c.j. the state contended that it testing jurors' understanding of eyewitness reliability evidence, 46 jurimetrics j. 177 544 (minn. 1994)). in an earlier decision in state v. hardy, we were even more explicit when: expert testimony on eyewitness identification evidence in state v. miles, 585 n.w.2d 368 almost invariably be declared unconstitutional when it significantly undermines that a jury will find an innocent person guilty.15 at trial, during direct examination about the calls from burks's mother relating to ferguson, folkens retrieved a photograph of ferguson and prepared a six-person which person in the lineup is the suspect, id. at *11, gives the witness feedback that he or address each of these issues in turn. *20-28. 2 district court then convicted ferguson of first-degree murder and sentenced him to life in the past thirty years. excerpts, the federal prosecutor elicited testimony that (1) ferguson was part of the (s.d. 1990) (explaining that expert testimony on the unreliability of eyewitness the question of eyewitness identification. i begin my analysis by noting that the introduce evidence of the untruthful character of another until the latter has testified as a a new trial, we do not need to reach the other issues raised by ferguson. folkens a second time to tell him that the correct name was "c.j." she testified that both court should consider alternative approaches to educating jurors on the variables that "can o p i n i o n jurors "both understand and evaluate the effects that various factors have on memory," id. defendants who can show some evidence that suggestiveness occurred during the 12 knowledge and experience of the average layperson and if the expert does not "invade the i agree with the majority of our court that ferguson is entitled to a new trial based identification would assist the jury in assessing the reliability of eyewitness testimony"). misconduct. first, the state elicited testimony that sergeant folkens knew ferguson at 187; see also thompson, supra, 608.01, at 323 (explaining foundation for reputation 4 c-19 given our court's decision to reverse and remand for a new trial, i conclude it is erred by denying his motion to introduce evidence of an alternative perpetrator, and that 25, 36-37 (minn. 2010)). this foundational requirement " `avoid[s] the use of bare e.w. testified that he was on the porch of a house within viewing distance of the deli on evidence is generally not admitted "for the purpose of establishing the alternative the jury found ferguson guilty of first-degree and second-degree murder. the shooter. moreover, the prejudicial effect of the district court's error in allowing the eliciting testimony that folkens selected ferguson's photograph based on the tip from lay jury and the testimony of the expert will not add precision or depth to concurring, anderson, paul h., j. we review a district court's decision to admit evidence under the abuse-of- izzy did not. but as previously noted, rule 404(b) does not permit corroboration if the home, she did not go inside the home but remained outside to speak with k.c. and k.c.'s a. no, that combination only pointed me to one person. the american psychological association (apa) recently filed an amicus brief to edwards had little or no relevance to ferguson's identity as the shooter, or to corroborate 839 p.2d 589 (nev. 1992); people v. legrand, 867 n.e.2d 374 (n.y. 2007); state v. (4) the tattoo of c.j. on jennings's arm, (5) the telephone call between jennings and the day of the shooting despite an arrest for possession of a firearm without a permit. 1 to prevent convictions of the innocent based on unreliable eyewitness found the statements were not hearsay and admitted this testimony. discretion standard. state v. pendleton, 759 n.w.2d 900, 908 (minn. 2009) (citing state (quoting watkins v. sowders, 449 u.s. 341, 352 (1981) (brennan, j., dissenting) (internal that we were "troubled" by the prosecutor's repeated attempts to elicit testimony that had relating to the accuracy of eyewitness identification may in fact be helpful ferguson's testimony in edwards also included a statement that he was an character." huddleston v. united states, 485 u.s. 681, 686 (1988). we have said that a see, e.g., state v. chapple, 660 p.2d 1208 (ariz. 1983); people v. mcdonald, testimony during the state's case in chief. the omnibus hearing court granted the discretion, make a motion to reduce the mandatory minimum sentence for ferguson's moreover, the state's reference to folkens's work in the gang and narcotics units appears association in support of petitioner at 3, perry v. new hampshire, no. 10-8974 eyewitness identification expert testimony cross-examined as to the reliability of their testimony and in closing on an erroneous view of the law. dobbins v. state, 788 n.w.2d 719, 725 (minn. 2010). litzau, 650 n.w.2d at 182. "tips that inform law enforcement of criminal activity may defendant's character and the likelihood of "action in conformity did not bar admission of testimony from an earlier trial when the testimony was elicited s y l l a b u s evidence impeaching johnson's testimony was relevant, and its admission was not ferguson also argues that the district court abused its discretion by limiting his johnson's reputation for untruthfulness is not hearsay. for example, "evidence that an arresting or investigating officer received great potential to be credited by the jury. such a tip can be particularly discretion, exercised its discretion in an arbitrary or capricious manner, or based its ruling were both offered to impeach johnson's statement that ferguson had confessed to him. only tended to prove that he shot burks by means of an impermissible inference that he ability to impeach derrick johnson with (1) testimony by folkens that johnson had a helterbridle in light of recent developments in social science and caselaw in other id. at *1 (emphasis added). alternative perpetrator to the crime. id. acknowledging that it was a "close question," integrity of the criminal justice system and the courts' ability to conduct fair trials." id. at the court in clark ii, a double homicide case, addressed whether a defendant's eyewitnesses misidentify more often when the suspect is of a different race than the (internal quotation marks omitted). i conclude that harris does not stand for the proposition that the state may 595 n.w.2d 860, 86869 (minn. 1999)). in atkinson, the defendant produced evidence specifically red and black, were the colors that identified the rolling 30s bloods, as witness during the display. id. at 20. ferguson asserts that the edwards testimony was inadmissible under minn. r. now widely known that eyewitness misidentification is the leading cause of c-9 jennings also drove a car that matched some of the descriptions of the car seen at the showups; description-matched foils; child-witness accuracy; and lineup fairness." id. at (2d ed. 1996)). at each of those stages, the " `information ultimately offered as i note that a statement of a party-opponent under minn. r. evid. 801(d)(2)(a) is determine whether the expert is qualified to provide the testimony, and whether the life in prison without any possibility of release. ferguson has appealed his conviction with the [burglar's] latent print would have been unjustified . . . because the because we conclude that the verdict might have been different if the jury had on cross-examination, defense counsel challenged the use of the photo lineup, 11 peter n. thompson, minnesota practice--evidence 608.01, at 323 (3d ed. 2001) broader issue of reliability of eyewitness identification testimony is unimportant." states, 519 u.s. 172, 180 (1997); see also united states v. brandon, 521 f.3d 1019, sequential photographic lineup that included ferguson's photograph. folkens then met i would conclude that the questions referencing folkens's experience with gangs science.9 forced to testify at the first trial to refute illegally obtained and admitted confessions. b.j. shot burks constitute out-of-court statements that were inadmissible hearsay because prohibited by any legal authority. therefore, i would hold that the district court abused blanket exception under 404(b), "the exception could devour the rule, for other acts could not harmless beyond a reasonable doubt and infringed on ferguson's constitutional right burks's mother, and that he had not bothered to use the police database that allowed for the state contends that ferguson's federal testimony was admissible to corroborate the an abuse of discretion. state v. jenkins, 782 n.w.2d 211, 229 (minn. 2010) (citing state scrapings at the scene, but the state could not link any of this physical evidence to united states v. commanche, 577 f.3d 1261, 1267 (10th cir. 2009) (holding that inadmissible testimony under the guise of showing how the police came to know about c-1 going to go take care of it." an enforcer would "make sure it's safe . . . for us to sell witness attempted an identification, but the sequential photo line-up procedure produced world settings." id. at *42 (internal quotation marks omitted). likelihood of a criminal act raise concerns about how the information in the tip will be substantially outweighed by its danger of unfair prejudice. in minnesota, the probative rule 404(b) lists several purposes for which other-acts evidence may be offered. alley. the car sped up until it caught up with burks's car, and then it followed her. room table. k.c. viewed all six photographs in the photo lineup and identified calvin found that misidentification occurred in over 30 percent of all photo lineups where the identification. id. at *45, *48-49. at the pretrial hearing, the court will investigate all circumstances--have suggested that under different circumstances, the exclusion of such mother further testified that she heard this information from her niece who, in turn, had of a police investigation. i would conclude that, under the minn. r. evid. 403 balancing mr. johnson's testimony about his statements and the investigator coming in to testify in his defense, ferguson attempted to admit evidence about an alternative al. eds., 4th ed. 1992)). as admitted, the b.j. and c.j. hearsay testimony presented a risk at the scene of the crime connected the alternative perpetrator only to the location of the the door. k.c. testified that from inside her home, she heard approximately six more "enforcer" for the rolling 30s bloods. he described the role of an enforcer as follows: statement of a witness who does not testify at trial may not be offered against a criminal on the day she was shot, burks went to the home of k.c. k.c. and burks were close our court has twice considered whether a district court abused its discretion by qualified as an expert on these issues in many states, and would testify concerning these jury evaluate the accuracy of k.c.'s eyewitness identification. moreover, the state, "ninety percent or more of the experts found research on the following topics the spreigl evidence would be relevant." id. (internal quotation marks omitted). c-14 admitted unless (1) the prosecutor gives notice of its intent to admit the excluding expert testimony on eyewitness identification evidence. in helterbridle, the explanation why johnson's statement was not admissible to impeach him. between five-nine and five-eleven with a medium build, and the man had "medium beady special master). i make no attempt here to list all of the factors that can result in the list in rule 404(b) of noncharacter purposes for use of other-acts evidence "is particular piece of information'; and retrieval--the `stage during which a person recalls 11 b.j. shot burks. during pretrial proceedings, ferguson moved to preclude, on hearsay "person that's most likely to take care of [a problem for the gang]"; and (7) the bloods in opening statements, the state talked about the expected out-of-court statements, 6 q. and in your 21 years of experience and from working in the third study after study revealed a troubling lack of reliability in eyewitness the state introduced the evidence to give context to the police investigation. degree and second-degree murder under minn. stat. 609.185, 609.19 (2010) state of minnesota, and raises eight separate issues. on appeal, ferguson argues that (1) the district court prison without the possibility of parole. ferguson filed his notice of direct appeal on court must "carefully consider whether expert testimony on the reliability of eyewitness the worry with a tip containing a specific charge of criminality is that it has that "there should be no reference to other police involvement . . . or things like that." defense counsel, and the court utilized some of the safeguards we outlined in miles. k.c. k. steblay, & jennifer e. dysart, a test of the simultaneous vs. sequential lineup 9 folkens who both testified to the background hearsay regarding c.j. and b.j. perpetrator's guilt, but to create a reasonable doubt as to the defendant's guilt." id. ferguson also argues that the state committed two instances of prosecutorial acted "on information received," or words to that effect. 650 n.w.2d at 182 n.3 (citing minn. r. evid 702). we have said that an expert opinion will not assist the trier of fact mueller & kirkpatrick, supra, 4.37 at 857 (arguing that if corroboration provided a he also acknowledged that lineup. folkens showed the same lineup to a.q. and j.w., but neither of them was able crime, threats by the third person, or other miscellaneous facts which would tend to prove a jury will draw a deadly and decidedly improper three-step inference, from bad act to 764 n.w.2d 837, 841-42 (minn. 2009); see also id. at 844 n.4. at the scene of the crime. moreover, ferguson produced other evidence that connects before a judge other than the trial judge, the trial judge, except in extraordinary the federal trial that focused on ferguson's membership in a gang; his street name, b.j.; perpetrator foundational evidence, with respect to jennings, was sufficient to allow with k.c. at her home and showed her the photo lineup while they both sat at the dining inadmissible.' " state v. harris, 521 n.w.2d 348, 354 (minn. 1994) (quoting state v. ferguson claims that the testimony from burks's mother and folkens that c.j. or as did defense counsel, who referred to the statements as "rumor." during direct 3 c-5 we have stated repeatedly that " `[t]he state will not be permitted to deprive a confrontation used by the jury. as the seventh circuit said in lovelace: 8 separately because i believe that several other remaining issues raised by ferguson on retrial, the district court admitted evidence of the defendant's abuse of a witness under social psychologists, and other experts surveyed,10 case." state v. jones, 678 n.w.2d 1, 16 (minn. 2004) (quoting state v. hawkins, the state opposed the motion, contending that this "information comes in . . . every day followed by someone shortly before she was shot. the state's evidence showed that, at folkens recalled that burks's mother said "c.j." initially, and "b.j." on the second specific incident--"[t]hat it was killer's weapon. the gun belonged to him." johnson call. lori swanson, attorney general, st. paul, minnesota; and admissible to impeach a witness's testimony at trial. see state v. moua, 678 n.w.2d 29, its discretion when it precluded ferguson from impeaching johnson with his prior introduce other-acts evidence simply because it has some small tendency to bolster the behalf of his gang. this evidence had no other relevance to ferguson's identify as the claim that the district court erred when it denied his request to permit expert testimony on defendant's conviction.7 conclusion despite evidence that k.c. testified that she saw the shooter as he ran toward defendant of a fair trial by means of insinuations and innuendos which plant in the minds giving context to a police investigation. see williams, 525 n.w.2d at 545. this from calling an expert witness to testify about the unreliability of eyewitness on the record before us, i would conclude that the excerpts from ferguson's testimony in people and the `buzz' or talk in the community." 3 mueller & kirkpatrick, supra, 6.30, suggesting the alternative perpetrator's presence at the scene of the crime and evidence moreover, courts have also noted circumstances under which ed. 2007) (describing unfair prejudice as either emotion based or based on misuse of statement that ferguson had denied responsibility for the shooting. alternative perpetrator; (6) the court erred by limiting ferguson's impeachment of a eyewitness identifications bear directly on guilt or innocence. at stake is the very she said the shooter was wearing a blue or black "hoodie." police officers also examined evidence of another crime, wrong, or act is not admissible to prove the 12 on august 7, 2008, a hennepin county grand jury indicted ferguson for first- different verdict if the jury had known the information regarding jennings. we reach this 2010) (citing state v. peterson, 764 n.w.2d 816, 821 (minn. 2009)). expert testimony is we also noted in miles that the presence of the foregoing safeguards was a factor we begin our analysis by addressing ferguson's claim that the district court erred calvin ferguson was convicted in hennepin county district court of first-degree called "b.j." later, burks's mother called back to tell folkens that the shooter's name issues at trial. the court denied the motion. misstatement of the evidence. neither witness identified ferguson so the state's supposed to shoot irene burks, and if "izzy [had] taken care of it, [ferguson] wouldn't witness; (7) the court erred by refusing to instruct the jury on circumstantial evidence; evid. 804(b)(3) statement against interest exception.3 sentence. if it were, evidence could slide past the rule against improper course of their investigation, when those statements inculpate the defendant." taylor v. the defendant. in state v. strommen, we held that admission of testimony elicited from value/prejudicial effect balancing test falls under minn. r. evid. 403. to satisfy the the science of eyewitness identification, we can better meet the " `twofold aim . . . that described the shooter as a "black male, about five-nine, thin build, medium to dark experiments on the malleability of human memory. but according to expert opposed to blue, which was associated with a different gang. suggestion in its closing statement that three eyewitnesses were able to corroborate 1 1340 (5th cir. 1995) (concluding that the decision to admit expert testimony on was considerable danger that ferguson's federal testimony would weigh too heavily with that time, he became familiar with ferguson. folkens testified about how he selected a evidence. neither the district court at trial, nor the state on appeal, has offered any other 572 n.w.2d 286, 292 (minn. 1997) ) (internal quotation marks omitted). an error is not additional evidence connecting the alternative perpetrator to the crime. the state cites identification is corroborated. it's corroborated by [k.c.'s daughter] who tendency to connect the alternative perpetrator to the crime. id. at 591-92. c-31 that the state made misstatements with respect to the evidence and that these respectively. he was arrested shortly thereafter. at trial, the state elicited testimony in of evidence has the burden to show it was erroneous and prejudicial." state v. burrell, misconduct; (4) the court erred by precluding ferguson from calling an expert witness on c-23 discretion, we will not disturb a district court decision unless the court abused its resulted in a better understanding of how human memory works. understanding how cartridges but found none. he also testified that the state found tire tracks and paint in supreme court the ground that johnson's statements were "self-serving," saying, "mr. johnson was conviction. opportunity, intent, preparation, plan, knowledge, identity, or absence of acquaintance of burks, to the shooting. the court denied ferguson's motion. when those factors "are within the control of the criminal justice system"--called "system identification. before trial, ferguson filed a motion to permit the expert witness's cross-examination and persuasive argument by defense counsel are behavior that would otherwise be hard to decipher."). on the basis of the calls from burks's mother and his prior knowledge of "evidence is admissible under rule 404(b) only if it is relevant for a permissible purpose k.c. and burks, and that k.c. ultimately identified ferguson in a photo lineup. ferguson c-21 all defendants accused of criminal behavior have the constitutional right to because the district court's exclusion of the alternative perpetrator evidence to suffer unfair prejudice that affected his right to a fair trial. in response, the state `the period of time that passes between the event and the eventual recollection of a to the defendant's case. id. at 371-72. description of the shooter's vehicle, the alternative perpetrator's nickname matched that evidence . . . (2) the prosecutor clearly indicates what the evidence will be appellant with skepticism. while in some circumstances expert testimony state introduced, and there is no other evidence in the record that indicates why burks testimony had been established and thus whether exclusion of the testimony constituted the objection, but reminded the jurors to rely on their own recollections of the testimony. had the opportunity to see and did identify particular features of the shooter's face. c-30 testimony on eyewitness identifications was within the discretion of the district court, and confidence relationship; memory decay; exposure times; sequential presentation; 301 n.w.2d at 547. we then went on to list several examples of possible safeguards that not abuse its discretion by excluding the evidence. id. we again upheld the exclusion of such as suggesting that the defendant has a propensity to commit the crime or that the we conclude that there is a reasonable possibility the jury may have reached a american judicature society (2011), http://www.ajs.org/wc/pdfs/ewid_printfriendly. witness" has testified before any evidence of untruthful character evidence is allowed. ferguson went by the names b.j. and c.j. the court indicated that the state could elicit back to send a message, "like with that warning thing"; (5) he admitted wearing "the the identification in closing arguments. further, the court instructed the jury on factors would not be assisted by its admission. the arresting officer that he knew the defendant from "prior contacts and incidents" names referred to the same person. the state also elicited testimony from folkens about knowledge of johnson's reputation. should consider the reliability of the eyewitness identification in light of the recent new ferguson makes an additional argument that we should revisit miles and the "overarching concern" behind excluding evidence of other crimes, wrong, or where expert was allowed to testify about factors affecting reliability of eyewitness misstatements constituted prosecutorial misconduct. its very limited probative value. objection. prejudice.' " litzau, 650 n.w.2d at 183 (quoting minn. r. evid. 403). `memory' can be distorted, contaminated and even falsely imagined.' " id. (quoting the [noncharacter/purposes under] the rule's general exclusion of other-acts evidence." ness, friends and routinely saw each other several times a week. after burks arrived at k.c.'s ________________________ the united states supreme court has said that other-acts evidence is generally during closing argument. offers the opponent no opportunity to cross examine the declarant on the statement that admission of ferguson's federal testimony. character evidence. to decide if rule 404(b) evidence is admissible for identifications. from social science research to the review of actual police investigation of calvin ferguson with the deceased.' " id. (quoting state v. jenkins, 782 n.w.2d 211, 224 (minn. 2010)). necessarily understood by jurors. see, e.g., richard s. schmechel et al., beyond the ken? for the government at the court trial of joe darrel edwards in united states v. edwards. offered to prove . . . and (5) the probative value of the evidence is not states. in this testimony, ferguson admitted to being part of a group called the rolling and told him that she had just heard from her niece that the person who shot burks was was not prosecuted until the police had more than eyewitness when we said: federal testimony concerning access to guns and his status as gang enforcer to draw the testimony will be helpful to the trier of fact. see anderson, 789 n.w.2d at 235 (citing a tip for purposes of explaining why the police conducted surveillance is not hearsay." about (1) the similarities in physical descriptions and characteristics of ferguson and corroborated k.c.'s identification of ferguson as the shooter--constitutes a clear telephone, k.c. returned to the doorway. as she was handing the telephone to burks, was murdered. important to note that the admission of the statement of burks's niece presents a potential [e]ven a limited elicitation, for nonhearsay purposes, of general testimony 773 n.w.2d 303, 315 (minn. 2009) (internal quotation marks omitted). "the risk is that a permit on april 4, 2006, but was not in police custody on the date of the shooting. criminal investigation; their function, courts reason, is to give context, rather than to violates a district court order. see state v. fields, 730 n.w.2d 777, 782 (minn. 2007). untruthfulness. the state objected to this line of questioning, and the court sustained the perpetrator, christopher jennings. ferguson offered the following foundational evidence. minnesota rule of evidence 404(b) states: education, may testify thereto in the form of an opinion or otherwise. united states v. edwards, a case in which ferguson had testified on behalf of the united its treatment of eyewitness identification. the court now allows pretrial hearings for houle, 239 f.2d 71, 77 (1st. cir. 2001) (internal quotation marks omitted); see also guise of explaining how [the] investigation focused on defendant, relate hearsay id. at *51-52. the new jersey court hopes that the revised jury instructions will help but on the other hand, while ferguson's offer of proof noted several subjects noncharacter uses for other-acts evidence. the united states supreme court has said that c-8 identifications. we said: minnesota rule of evidence 608(a) states: for example, one study found a misidentification rate of 68 percent. id. at *12. memory works has, in turn, given rise to substantial concerns regarding the ability of establishes the declared fact." reyes, 18 f.3d at 69. 2 seventy to 87% found the following research reliable: weapon focus; the accuracy- "[t]here is almost nothing more convincing [to a jury] than a live human being who takes in every trial in this courthouse" to give "context" to the police investigation. the court suspect might not be included in the lineup, id. at *23-24. the power to grant relief if it is convinced that the evidence of a convicted which the evidence is offered,' and ensure that the purpose is one of the other permitted send messages in code to people in prison. thousand studies related to eyewitness identification have been published in showed that the alternative perpetrator's physical description was in several ways similar calvin ferguson. they were admitted for the truth of the matter asserted. the state argues that the ferguson as b.j. johnson testified that ferguson told him that he did not know why he 13. identifications to link him to the crime. the jury members were 6 held that these pieces of evidence did not create an inherent tendency connecting the states v. moore, 786 f.2d 1308, 1312 (5th cir. 1986)); johnson v. state, 526 s.e.2d 549, was only relevant to show that ferguson was the shooter by inviting the inference that he 13 j.w., who had told folkens that he had seen the suspect from the side. j.w. was unable substantial" evidence connecting the defendant to the crime was present, the district court (2) evidence of truthful character is admissible only after the character of 7 before trial, ferguson asked the district court to preclude folkens from referring to testimony). the plain language of rule 608(a) also contemplates that the "target w.o., a.q., j.w., and o.m. all lived in the neighborhood. w.o., a.q., and j.w. the plea agreement required ferguson's substantial assistance with the government in admissible testimony of another witness. i would also conclude that ferguson's federal if scientific, technical, or other specialized knowledge will assist the trier of that experience. were read to the jury had relevance to the disputed issue of identity without inferences of be some direct evidence placing the alternative perpetrator at the scene of the crime, plus the verdict rendered is surely unattributable to the error.' " id. (quoting state v. juarez, viewings, simultaneous versus sequential lineups, composites, and show ups. id. at assessing the probative value, a court "must identify the precise disputed fact to which the jurors and overpersuade them to judge ferguson based on his general record, thus hearing, and ultimately relied upon by the court, are based on serious and verifiable (emphasis added.) several eyewitnesses observed some of the events surrounding the shooting. 552-53 (ga. 2000) (holding that "[w]here eyewitness identification is a key element of v. shannon, 583 n.w.2d 579, 583 (minn. 1998)). "a defendant appealing the admission unfair prejudice. thus, the district court should not have admitted the b.j. and c.j. bias; post-event information; child suggestivity; alcohol intoxication; and own-race bias. journals, evaluated through the lens of meta-analyses, and replicated at times in real- misidentifications.14 proof specific to the offense charged, instead of understanding the tip evidence as merely testimony was not hearsay because the statements were admitted to give the jurors shot from an indeterminate distance and that she died of multiple gunshot wounds, some statute, by these rules, or by other rules applicable in the courts of this state." id. irene burks was shot to death on september 12, 2006. at approximately 5:30 p.m. proves that the possibility of mistaken identification is real. indeed, it is ambulance took burks to the hennepin county medical center, where she died of the about which he proposed to offer expert testimony, the offer did not include relevant sergeant bruce folkens led the investigation of burks's murder. shortly after the that the alternative perpetrator had a tattoo similar to the shooter's tattoo. id. at 591. we as the court explained: with dark pants. e.w. testified that when burks left the deli, the man he was watching circumstances will adhere to the findings and determinations of the omnibus hearing folkens acknowledged that hennepin county photo lineup protocol requires that was acting in accordance with his character as someone who committed violent acts on that the defendant has the propensity to commit the crime charged."). i conclude that we would help prevent convictions of the innocent based on unreliable eyewitness identity--i conclude that this federal trial testimony had little relevance to ferguson's evidence for the purpose of corroboration, however, calls for closer scrutiny. as the derrick johnson also testified for the state. johnson was incarcerated with 3 mueller & kirkpatrick, supra, 6.30, at 191-92 ("one party should not be allowed to ("[w]hen evidence of prior bad acts is offered, the proponent must clearly articulate how leading questions about the lineup: suspicion, and safeguard[s] a third person from indiscriminate use of past differences the state relies on state v. harris, 560 n.w.2d 672 (minn. 1997), to justify the had denied involvement in the shooting. during cross-examination, ferguson's counsel corroboration, the court must determine what is being corroborated and ferguson argues that the district court abused its discretion when it precluded him district of columbia circuit court observed: be proved in essentially any case in which there was some other proof of guilt of the ii. simultaneous procedure, with no difference in the number of correct suspect picks. id. at c o n c u r r e n c e omitted). lead to misidentifications." id. at *50, *54. as our courts and jurors grow to understand "consists of three stages: acquisition--`the perception of the original event'; retention-- important benchmark on the limitations of eyewitness identification--the new jersey rule 608(a) allows impeachment of witnesses by evidence of untruthful character. him shoot ms. burks. [o.m.], who saw the defendant get out of the car. c-25 worked out in the community in third precinct, who worked in the gang jennings's initials are c.j., he was listed as c.j. in burks's cell phone contacts, he had a offered to prove character in order to show propensity to commit the charged crime and identifications. 301 n.w.2d 545, 546-47. we concluded that the admissibility of expert daughter. burks asked k.c. if she could use k.c.'s telephone. k.c. went back inside her public defender, st. paul, minnesota, for appellant. in the man's hand, so she yelled out burks's name. when the man reached k.c.'s gate, the record reflects that during ferguson's cross-examination of folkens, the ferguson can lay a proper foundation with evidence showing that folkens had sufficient photo lineups be conducted using a double-blind procedure.6 misunderstanding can arise even when the state has cautioned the jury that it should not should have considered whether the excerpts of ferguson's federal trial testimony that premeditated murder for the death of irene burks. the court then sentenced ferguson to defendant was convicted on the basis of two eyewitness identifications, after having been c-13 k.c.'s eyewitness identification of ferguson is unsupported by the record and did not concerns about the admission of this testimony. app. 1996); state v. clopten, 223 p.3d 1103 (utah 2009). have been tested and retested, subjected to scientific scrutiny through peer-reviewed rebuts k.c.'s eyewitness identification with a lack of any physical evidence connecting t.b. called folkens and told him that someone who went by the name c.j. shot burks. the answer which the witness gives.' " id. (quoting tahash, 280 minn. at 157-58, jennings to burks, and to the crime. thus ferguson has not only produced evidence c-3 vs. filed: october 19, 2011 ferguson as the shooter. in light of the absence of physical evidence and other innocent/convicting the guilty: hennepin county's pilot project in blind sequential the community that the defendant, calvin ferguson, had used both of these names. 4.28, at 746 (discussing risks under similar fed. r. evid. 404(b)). we have said that if for the death of the second victim. 296 n.w.2d at 374-75. clark ii held that defendant's v. reviewing constitutional error, we first determine whether the district court erred, and of the testimony arguing that it did not meet the admissibility requirements of minn. r. ferguson argues that the district court abused its discretion by prohibiting him concluding that ferguson had not laid a proper foundation. testimony by seven experts that ultimately "produced more than 2,000 pages of quotation marks omitted)). without question, a misidentification can be devastating-- the fifth circuit has said law enforcement "cannot, through their trial testimony, tendency to connect the alternative perpetrator to the commission of the charged crime.' " officer with knowledge of which photo is of the suspect should be out of the view of the "[t]he threshold inquiry a court must make before admitting similar acts evidence under dramatic change in the scientific community's understanding of eyewitness identification. id. at *19. for example, acted in accordance with his propensity to commit crimes. the state also attempts to propensity inference--that ferguson was "enforcing" when he murdered burks. that a tip had been received that led to defendant's prints being compared scene of the crime is insufficient on its own to create an inherent tendency connecting the 6. the supreme court has held that under the sixth amendment, a testimonial hearsay .40 caliber handgun. the forensic scientist testified that he looked for fingerprints on the reasonable doubt, we hold that ferguson is entitled to a new trial. of the shooter, and the alternative perpetrator had a connection with the victim. requirement of jury unanimity is also a safeguard. finally, this court has [w.o.], who saw the defendant running across the street after [k.c.] saw of expert testimony on reliability of lineup procedure was not an abuse of discretion at a pretrial omnibus hearing, the state moved to admit excerpts of ferguson's testified that she saw the shooter standing across the street facing her and then saw him see state v. amos, 658 n.w.2d 201, 203 (minn. 2003). at trial the district court reaffirmed the admission of ferguson's testimony in photo lineup method--sequential or simultaneous--is more accurate. see id. the study, prejudicial where it addresses a disputed issue or is made by a the district court erred when it excluded evidence that had an inherent tendency to reliable: suggestive wording; lineup instruction bias; confidence malleability; mugshot k.c. on the reliability of k.c.'s eyewitness identification and argued the unreliability of pieces of information that may have incriminated jennings and so had an "inherent ferguson's counsel also objected to these statements. the district court did not rule on to prosecute ferguson on the basis of the single eyewitness identification that resulted 1 test for introducing eyewitness identification], researchers conducted some misidentify more often when a police officer unconsciously indicates to the witness once the defendant lays foundation for the evidence by proving its inherent relevant factors that might "affect reliability in deciding whether an identification is holding that courts have abused their discretion by excluding eyewitness expert testimony thus, regardless of whether investigative background evidence is offered for its from this less than ideal photo lineup procedure. in contrast to the eyewitness testimony of some concededly relevant evidence to lure the fact-finder into declaring guilt on a recognition of the limitations of eyewitness identification and the usefulness of the jury was not given any cautionary instruction limiting the manner in which the jury 489 n.e.2d 795, 804 (ohio 1986) (holding that, where other "uncontroverted or that the purpose in asking the offending questions was to illicit a response suggesting that anderson, paul h., justice (concurring). to prove fear on the part of victims or others, and knowing of that fear helps understand started running toward k.c.'s home. k.c. became alarmed when she saw a large object the state then had seven excerpts of ferguson's testimony in edwards read minn. r. evid. 702. in applying rule 702, the court must exercise its discretion to alternative perpetrator to the crime. 774 n.w.2d at 590 (citing state v. flores, c-29 monikers and that physical description matched a potential suspect as instructions, lineup construction, avoiding feedback and recording confidence, multiple believe' eyewitness testimony." brief for amicus curiae american psychological harmless if there is "a reasonable possibility that the verdict might have been different" if edwards.5 about them as well." received the alternative perpetrator evidence, we hold that the district court's error was connect an alternative perpetrator to the shooting of the victim because the evidence rights, we must determine whether the court's error was harmless beyond a reasonable open class of permissible purposes referred to in rule 404(b)'s second when police officers arrived at the scene, they took a statement from k.c. k.c. the jury's ability to reach conclusions about that subject which is within to explain the conduct of the witness. see 1 mueller & kirkpatrick, supra, 4.37, at 857 eyewitness expert testimony. in state v. henderson--an opinion likely to become an more than one-third fewer known-innocent ("filler") identifications than did the guess what were deemed self-serving statements were excluded, and that would include admission of ferguson's federal testimony. in harris, an appeal following a conviction exclusion under our rules of evidence--rather, it merely held that the fifth amendment 158 n.w.2d at 506); see also state v. ray, 659 n.w.2d 736, 745 (minn. 2003) (noting testimony given at his earlier trial for the death of one victim was admissible at his trial at 16. therefore, we hold that the district court erred when it excluded the evidence after identification may be admitted if the subject matter of the testimony lies beyond the unlikely that the jury did not consider the [tip] evidence as substantive evidence of state to instruct folkens to avoid the subject at trial. procedure followed by the minneapolis police was not what we would expect. the ferguson's statement to johnson, and johnson's statement to the defense investigator, id. testimony of derrick johnson. johnson testified that he knew ferguson by the street evidence that johnson had previously told folkens that johnson knew nothing about 585 n.w.2d at 372. our decisions in helterbridle and miles indicate that the presence of furthermore, other-acts evidence must be relevant to the consequential fact or testimony from edwards. the state argued that this evidence was admissible because during the 1970s, when the [united states] supreme court decided [the of the jury a prejudicial belief in the existence of evidence which is otherwise methods: an initial report of the ajs national eyewitness identification field studies, edwards was inadmissible under minn. r. evid. 404(b) because the testimony was corroboration, in and of itself, is not a separate purpose belonging in the the mere fact of being "self-serving" is not, in itself, a reason to exclude impeachment testimony, that decade produced only four published articles in psychology hoodie" on the "night of the shooting"; (6) he considered himself an "enforcer," the each time a misidentification occurs, there is a strong possibility made a motion to introduce evidence that connected christopher jennings, an as justice william j. brennan said, (minn. 1998). rejecting the defendant's argument that the scientific evidence on the evidence, but rather its capacity to lure a jury into declaring guilt for an improper 2 charles t. mccormick, mccormick on evidence 249, at 103-04 (john w. strong et was actually "c.j."1 names, and that his street names were c.j., b.j., and "bad news." ferguson testified that was not offering the evidence about the identity of the shooter for the truth of the matter testimony. ferguson's offer of proof stated that the witness was an expert on the had suffered a gunshot wound and treated her injury at the scene. meanwhile, an the search of nicknames. on redirect examination of folkens, the state again asked shooting, in late september or early october 2006, burks's mother telephoned folkens these monikers. asserted. see crawford, 541 u.s. at 59 n.9. but some federal courts have concluded that hearsay testimony. photograph of ferguson and then included the photograph in the lineup shown to the the stand, points a finger at the defendant, and says `that's the one!' " id. at *13 "the research [relied upon by the court] represents the gold standard in terms of minnesota rule of evidence 402 provides: "all relevant evidence is admissible, without carefully weighing whether the evidence would assist the jury"); state v. buell, did not err in excluding eyewitness expert testimony); state v. hill, 463 n.w.2d 674, 677 testimony from his first trial was admissible at his second trial unless defendant was character or propensity as a "necessary link in the inferential chain." united states v. ferguson. tendency" to connect jennings to the commission of burks's murder. jones, 678 n.w.2d outweighed by its potential for unfair prejudice to the defendant. brown sedan back out of the same parking space and hit a garage before the sedan headed noted that we were not aware of any reported appellate decisions that held that a court evidence is unreliable. trial courts may suppress identification testimony if defendant is a proper candidate for punishment for his or her past acts." state v. fardan, 260 n.w.2d 150, 159 (minn. 1977)). exclusion of alternative perpetrator evidence "will identification and were instructed by the trial court on factors to take into as a member of the community or neighborhood," but that there would be "no reference asked without, i believe without objection, about his own inconsistent statements, but i reversed and remanded. the third person committed the act,' in order to cast a reasonable doubt on the state's see also reyes, 18 f.3d at 70; litzau, 650 n.w.2d at 182 n.3. but tips that point to the home to get the telephone. burks remained outside the home and continued to visit with character as an enforcer for the gang. thus, the evidence was inadmissible under evidence or otherwise. members had guns and shared guns "all the time" in order "to protect each other"; this case, the investigating officer's report should indicate why a blind identification is kirkpatrick, supra, 6.29, at 174 (stating that fed. r. evid. 608 "governs impeachment david w. merchant, chief appellate public defender, sara l. martin, assistant state he did not follow hennepin county photo lineup protocol. moreover, the state decided other acts or character to show action in conformity with character. rather, they are court undertook a painstaking and comprehensive survey of the current scientific and "[i]f we was to have a problem, [the enforcer] would be the person that's most likely anderson, paul h., justice. prove criminal activity." united states v. lovelace, 123 f.3d 650, 652 (7th cir. 1997); ground different from proof specific to the offense charged." old chief v. united testimony, for an abuse of discretion. state v. anderson, 789 n.w.2d 227, 234-35 (minn. response to the state's identity-of-the-shooter evidence. the state presented evidence the forensic evidence found at the scene--footprints, tire tracks, and bullet casings. to identify a suspect from the second lineup. bad person to guilty person or give way to the emotional impulse to punish because the foundation. for reputation testimony, the character witness "must be acquainted with the c-16 c.j. and b.j., folkens testified that ferguson went by the street names c.j. and b.j. in testimony on remand, i hope that the district court will carefully consider whether the research on eyewitness identification reliable.11 rule 404(b) is whether that evidence is probative of a material issue other than worn on the "night of a shooting"; role as gang enforcer; and gang's method of sending by a legally obtained confession. evid. 404 argument. after reviewing ferguson's offer of proof, we conclude that the alternative we have held that the state commits misconduct when it introduces otherwise in the neighborhood does not excuse the state's direct violation of the court's order. with the investigative hearsay testimony and violated the district court's pretrial order the identification procedures rendered the evidence unreliable. effective the right to be confronted with the witnesses against him. see also minn. const. art. i, into the record by the court reporter who had transcribed the testimony. in those office of appellate courts the foundational evidence offered by ferguson surpasses the foundational irene burks, also testified for the state. the medical examiner testified that burks was two remaining issues bear attention given that we are remanding this case for a (citing state v. spreigl, 272 minn. 488, 495, 139 n.w.2d 167, 171 (1965)). iii. evaluating eyewitness identification testimony and on the state's burden of we have said that "[h]earsay is evidence of a declarant's out-of-court statement to have had to do it." johnson's testimony about izzy was the only motive evidence that the "wanted to correct herself and said that it wasn't c.j., it was b.j.1 reputation for untruthfulness; (2) johnson's statement that ferguson denied involvement [t]he subject of the testimony is within the knowledge and experience of a state's motion, relying on state v. clark, 296 n.w.2d 372 (minn. 1980) (clark ii),4 in reaction. often the proof shows threatening, violent or abusive behavior, which tends literature containing the words "eyewitness" and "identity" in their

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