Defendant has been convicted of aggravated robbery, Minn. St. 609.245, 1 and sentenced to a term not exceeding 20 years, to be served conсurrently with any term imposed as a result of prior convictions. The issue on appeal is whether the state has established defendant’s identity bеyond a reasonable doubt.
On the morning of December 2, 1966, at about 3:30 a. m., Mrs. Karen Weidemann was attending the registration desk at the Lakes and Pines Motel in St. Paul when three men entered the office and at gunpoint took from the cash register and safe about $300. The only evidence implicating defendant was an identification made by Mrs. Weidemann from “mug shots” furnished by the police and a lineup which occurred immediately thereafter.
Mrs. Weidemann testified that at the time of the robbery defendant was standing about 15 feet from her and that she had an opportunity to obsеrve him for about 30 seconds. When she requested him to register, he drew a gun, pointed it directly at her, and told her to remain quiet and to open thе cash register.
*150 At the preliminary hearing, Mrs.. Weidemann testified that the entire episode took only about 80 seconds. At the trial, she indicated that it might have been as long as 2 minutes. However, she conceded that her eyes were riveted on the gun and that, understandably, she was nervous.
Although thе lights were on, the condition of lighting was described as “uneven” because there were shadows.
The first description of the robbers given to the police by Mrs. Weidemann was of young men 19 to 20 years of age who looked like “college kids.” She said they were unshaven but clean-cut. At trial, shе conceded that defendant did not look like a “college kid of 19 or 20” and testified that when she first described defendant she was “not quite sure оf anything * * *. It was happening very, very quickly.”
At the time of trial, defendant was 32 years old with receding hair, a white 3/4-inch cyst above his right eye which contrastеd with a ruddy complexion, a 1-inch scar from his lip to his chin, a cleft chin, and a deep crack in his lower lip. Mrs. Weidemann was shown several hundred pictures by the police before she identified the defendant on December 9, 1966, at about 1:30 in the afternoon. Immediately thereafter, at 1:45, defendant was brought in with two other men, one of whom was “quite a bit bigger” than defendant. She thereupon confirmed her identification.
The motеl records disclosed that defendant had registered at the motel on November 26, 1966, using his proper name and address.
Defendant had two prior convictions for burglary, one for forgery, convictions under the Dyer Act, for escape, and for carrying concealed weapons. He did not take the stand on his own behalf. At the time of trial, he was on parole.
We have sustained convictions on identification by a single witness in a number of cases. State v. Walters,
The testimony of Mrs. Weidemann that she identifiеd defendant at a lineup on December 9, although received without objection, clearly lacked probative value. The lineuр consisted of just three persons, one of whom was substantially larger than defendant. More important, however, Mrs. Weidemann had only a few minutеs earlier identified defendant from a picture in the police station. It is inconceivable that she would immediately thereafter fail tо select defendant out of the lineup.
This is a case where, in our opinion, proof on the one critical issue is permeated with dоubt. There was no corroboration of the identification. The victim had a limited opportunity to observe the robber briefly during a time when her аttention was concentrated on a gun pointed at her.
Testimony received without objection that Mrs. Weidemann went through hundreds of photographs furnished by the police removed any doubt in the jury’s mind that defendant had a prior criminal record. A number of recent cases have dealt with the problem of “mug shots” and lineups. United States v. Wade,
«* * * [w]e hold that each case must be considered on its own facts, and that convictiоns based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the phоtographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
In the instant case there was no evidence whatever to corroborate defendant’s implication in the crime other than Mrs. Weidemann’s selection of a photograph from a police file. 2 Necessarily, the pictures were limited to those who hаd criminal records. It is common experience in the trial of criminal cases that testimony of identification from such a gallery makes defendant’s conviction almost a foregone conclusion.
*153 Upon a retrial, the propriety of Mrs. Weidemann’s testimony disclosing by inferenсe defendant’s criminal record, and the admissibility of evidence based on the lineup procedures which were followed should be scrutinizеd by the trial court in light of the cases we have cited.
For the reasons stated, we hold that a new trial in the interest of justice is required.
Reversed and remanded for a new trial.
Notes
Minn. St. 609.245 providеs: “Whoever, while committing a robbery, is armed with a dangerous weapon or inflicts bodily harm upon another is guilty of aggravated robbery and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $20,000, or both.”
Defendant produced two students of the Vocational School in St. Paul who testified that they were in his company continuously during the early morning of December 2, when the robbery occurred.