*1 (Minn.1982); control, Lee v. Crook motor home left Newmar’s their fail- Co., Bottling ston Coca-Cola 290 Minn. preserve ure to the evidence eliminates their (1971). ability to demonstrate that the defect was present at the time of or caused the fire. support This record little to contains plaintiffs conclusion have summary judgment sustained Reversed and for de- First, expert’s either burden. affidavit fendant reinstated. beyond
contains facts few those which could expected complaint. be contained in the pleadings record, are not included
but expert’s affidavit which contains no
specific support factual bare
conclusions that the motor home was defec
tively designed system, in its dual fuel exits proxi construction and that such defects mately injuries caused the fire and sustained Minnesota, Respondent, STATE of by Mary legally oppose insufficient to sum mary judgment. See Federal Ins. Co. v. Express, Pratt’s 308 Minn. COGSHELL, Clifton Lamont petitioner, Appellant. appeals The court of has concluded that No. C9-93-1146. sufficient requi- evidence exists to raise the site of material identifying photo- issue Supreme Court of Minnesota. fact— graphs by plaintiffs’ expert, diagrams, taken Oct. blueprints system of the fuel and a recall significance letter of unclear issued anoth-
er manufacturer of motor homes which had substantially system
used a identical fuel
which had concluded system that a dual fuel
could not be eliminated as a fuel leak source. is our conclusion that these items are
insufficient prima to establish a case of facie liability. apparently 90 photographs by plaintiffs’ expert during
taken his investi-
gation record; are not cannot be de- clearly, accurately
termined to compre-
hensively depict either remains the motor repairs;
home or the nature of the
virtue of analysis an earlier properly expert’s
excluded as derivative of the investi-
gation. Similarly, blueprints are not of “diagrams”
record and the to which ap-
pellate court refers are but hand-rendered
illustrations the vehicle and the dual fuel
system produced during deposition Tillman,
Douglas president former
now-defunct Promatic Corрoration, which supplied components operating por- system
tions of dual incorporated fuel
into the Patton motor home. circumstances,
Under apparent these it is plaintiffs even if the could demonstrate
that a design defect existed the time *2 Stuart, M.
John Minnesota State Public Defender, Swanson, G. Assistant Scott Defender, Minneapolis, appellant. Public III, Humphrey, H. At- Hubert Minnesota Paul, General, Foley, Ramsey torney Tom St. Hill, County Attorney, Darrell C. Assistant Ramsey County Attorney, St. for re- spondent.
OPINION TOMLJANOVICH, Justice. Defendant, Cogshell, was Clifton Lamont guilty by a district court of con- found degree, crime in the third trolled substance 3(a) 1(1) 152.023, § Minn.Stat. subds. (1992), he sold crack co- based on evidence police officer.1 The caine to an undercover decision, unpublished in an appeals, court of conviction, rejecting de- affirmed defendant’s prej- that the trial court fendant’s cоntention a udicially admitting evidence of erred by defendant on prior similar offense disputed identity pursuant to Minn. issue of 404(b). affirm. R.Evid. 9, 1992, Paul p.m.
At 9:35
on October
St.
Dunnom, working under-
Police Officer Janet
probation
and concur-
defendant’s
was revoked
1. Defendant was sentenced
the trial
prison,
of 48 months and months
presumptive sentence
rent sentences
months
offense,
aggravated
rob-
prior convictions of
severity
when
executed for
level VI
de-
history
bery
fifth
and controlled substance
committed
criminal
conviction,
gree.
a result of the
score of three. As
cover,
itself,
went to
house located
DeSoto
state could use the
part
ongoing
facts,
Paul as
of an
underlying
Street
without
reference
investigation.
previously
impeaсh
credibility
he testified.
bought
people
609(a)(2)
crack cocaine there from
iden- The court
that under Rule
ruled
(later
“Tony”
tified to
and “Challota”
her as
*3
two false information convictions could be
Dobbs).
identified
Lucille
This time when
as
impeach
credibility
used to
if
defendant’s
he
cocaine,
buy crack
she said
wanted to
she
prior
The court
testified.
ruled
running
hallway
two
men came
down
controlled substance
could not
conviction
displayed
toward
rocks of crack
her and
their
impeach
credibility
used to
if
defendant’s
he
cocaine.
said the taller man
Challota
was
testified,
but ruled
evidence of the con-
nephew
okay
her
for Dunnom
and was
to
duct on which that
was
based was
buy
bought
from
three
them.
rocks
404(b)
admissible under Rule
as other-crime
from the taller man
two
and
rocks for
$50
prove identity,
evidence to
since the state’s
from
other man.
$50
Because Dunnom
identity, consisting primarily
evidence on
ongoing investigation
was
with an
involved
eyewitness
Dunnom’s
identification testimo-
complete,
that was not
Dunnom did not then
ny, was weak.
Instead,
any
get
make
arrests.
she tried to
behalf,
Defendant
testified in his own
good
a
look at the two men and remember
claiming
credibility
impeached
alibi. His
appearances
their
so she could
them by
robbery
conviction and the two false
leaving
house,
later. After
she described
cousin, Larkin,
statement convictions. His
officer,
to
two men
another
who was
testified in his behalf.
activity
monitoring
outside
her
from
by
are not
troubled
the trial
hоuse.
eyewitness
court’s
to
decision
admit the
iden
later,
16,
Over two months
on December
testimony
tification
of Dunnom. The trial
Sergeant
Nelson
Neil
received information
justified
court
appeals
from a
informant that
confidential
in concluding
photo display
that the
did not
had
been involved
the sale. He assembled
process.
process
violate due
Due
is violаted
men,
defendant,
photographs
including
six
display
display
such a
was so unnec
and
showed them
Dunnom. Dunnom
essarily suggestive as to
a
create
substantial
identified defendant as the taller seller.
irreparable
likelihood of
misidentification.
questioned
Defendant was arrested and
Brathwaite,
Manson v.
U.S.
S.Ct.
day.
the following
knowing
He admitted
a 2243,
(1977);
Biggers,
Paul that retail sellers However, require new trial in this case. package in that product area their opportunity prosecu we take this to caution way, only same we can look to the record on against eliciting tors such evidence. appeal because that is the record on which Affirmed. admissibility the trial court its based deter mination. We believe the issue of GARDEBRING, Justice, dissenting. whether the trial court abused its discretion admitting case, the evidence on this I In respectfully record dissent. this judges appellant’s close and that other reasonable trial state offered evidence of might well possession have exercised that discretion dif crack cocaine to However, ferently. identity after careful delibera establish and “involvement with tion, we do drugs.” not believe the trial court The trial court admitted the eva- meaning preju On the prejudicial of "need” and "unfair sion of other-crime evidence was er context, Bolte, dice” in this see State v. 530 requiring ror the award a new trial. 2, (Minn. 1995). N.W.2d 3 nn. object 4.Defendant also did not to the remarks Bolte, (Minn. In State v. 198 prosecutor argument closing of which he 1995), carefully we set forth the to be correct test appeal. complains on determining improper used in whether admis
125 dence, reasoning objection, wide-spread fied to the and sale appellant’s use of crack over cocaine, commonly you bags sell that sellers hold “you possess before can must truism, buyers, if it of crack their hands to show the is a is sufficient drugs.” This prevalent of packaging method justification previous of the for admission ease, quantitiеs, wrapped in such in small provide sales is incident in this would plastic bags. It is well settled that when any prior drug-related for admission basis admissibility Spreigl evidence is un- charged any activity by any clear, given must the accused the benefit drug-related prepared crime. I am not later rejected. doubt evidence of admissible to broaden boundaries Titworth, N.W.2d Spreigl to allow such rеsult. upon an this court has not insisted While Minnesota R.Evid. forbids ad- offense absolute between mission evidence the relevance of required we have depends that “disposi- inference similarity the two crimes and some between points directly to tion” criminal behavior. distinguish the some characteristics which Spreigl exactly evidence offered here is every from inсident prior misconduct similar otherwise, such evidence. To conclude I be- by other individu of misconduct committed intellectually lieve is dishonest. Landin, In als. v. N.W.2d State previously has not allowed admission (Minn.1991), “[In where] we said cases evidence, such should not do here. so iden Spreigl evidence offered establish tity, Spreigl must be similar offense Finally, I note that this case illustrates loсation or offense either irony process. Spreigl operandi.” Id. at 859. See also State DeWald, trial directed (Minn. DeWald, 502-03 courts to withhold decision on admis- *6 1991). Eling, In State v. Spreigl sion of evidence until state has (Minn.1984), the was similar presented and admit the its case charged crime in that each involved a to the only where state’s case is “weak.” The robbery in pharmacy which the defendants trial court here identified it as “the ultimate floor, on the de ordered the victims to lie case,” because, presumably as the state weak drugs” A and manded “Class ordered acknowledges, Cogshell’s conviction turned push In victims “not to the button.” on the identification of a sin- uncorroborated Hudson, (Minn.1979), we gle made nine weeks after trans- witness robberies which allowed admission Indeed, any link action. between the crime only days and had occurred five before appellant was first made a confi- perpetrator used the same words may informant who not have dential highly only in It is ironic that been reliable. weak, is thus a case where the evidence contrast, case, this the state identifies grant prejudice high, we trial the risk of do be- two “similarities” time location admitting marginally option court’s July current tween the 1991 incident questionably reliable evidence relevant and they offense: were “close” position. faltering to bolster the state’s occurring apart, and some fifteen months Although grant courts considera- they Paul. Even the state trial were both regard evidentiary rul- operan- distinguishing can no ble discretion di, Spreigl I that admission of ings, other involved conclude than both incidents discretion; an pieces packaged in a evidence here was abuse several of crack cocaine not have been admitted. plastic bag displayed in the seller’s the evidence should Further, evidentiary ruling while such hands. These characteristics are indistin- analysis, I virtually subject error also to the harmless guishable from the characteristics of this was not harmless in every city the decision street sale cocaine believe case, ease. given of the state’s hardly relevant the weakness can be said case, for a I and remand matter disputed in this would reverse issue testi- new trial. perpetrator. The state’s own witnesses J., joins Page, in the dissent of Garden-
ing, J. Minnesota, Respondent,
STATE of Irving PETTEE, Petitioner,
John
Appellant.
No. C6-93-939.
Supreme of Minnesota. Court
Oct.
Rehearing Dec. Denied