State v. Bruggeman

263 N.W.2d 870, 1978 N.D. LEXIS 243
CourtNorth Dakota Supreme Court
DecidedMarch 15, 1978
DocketCr. No. 616
StatusPublished

This text of 263 N.W.2d 870 (State v. Bruggeman) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bruggeman, 263 N.W.2d 870, 1978 N.D. LEXIS 243 (N.D. 1978).

Opinion

VOGEL, Justice.

The appellant (Bruggeman) was found guilty of theft of property, a Class C felony. He appeals, and we affirm the conviction. The only question raised on appeal is the admissibility of an identification of the defendant by a police officer.

On January 16, 1977, the defendant was employed by West Fargo Union Stockyards as a yardman. On that date, a shipment of ewe lambs was received from Richard Pfli-ger. They were unloaded from trucks and placed in the alleys of Central Livestock, a commission merchant which leased space at the stockyards. The sheep were consigned to Central. The owner of the sheep and a friend named Jack Pfeiffer arrived and looked at the sheep. They immediately recognized 19 sheep in an alley assigned to McDonald Livestock, to which none of the sheep had been consigned. Knowledgeable sheepmen can recognize sheep from different flocks by the pattern of their shearing, as well as by size and general appearance. The two men inquired as to the count of sheep at Central and found a discrepancy in numbers. They asked the supervisory employees at Central, and subsequently McDonald, to examine the sheep in the McDonald alley, and all of them agreed that the sheep in the McDonald alley were part of the same lot as the sheep in the Central alley.

Upon investigation, it was found that the defendant Bruggeman was one of the two employees who had “yarded” the sheep— that is, had placed them in alleys. It was further discovered that 19 sheep had been recorded as consigned by an Allen Hanson, whose address was Glyndon, Minnesota, although the original entry record, called a “brand sheet,” gave the address as Glydon. The brand sheet bore an employee number [871]*871assigned to the defendant Bruggeman, as did one of the records relating to the receipt of the lot of sheep from Pfliger.

Suspicion therefore centered upon Bruggeman immediately. A check was written to Allen Hanson, and mailed to Allen Hanson at Glyndon, Minnesota, by certified mail. An employee of the stockyards then alerted the chief of police at Glyndon by telephone and in person, asking the chief of police to watch for any one of three automobiles Bruggeman might be driving and to observe whoever picked up the check at the postoffice. The next day, the chief of police noticed one of the three vehicles described to him pass by the window of the police station. He observed the driver, and described him as a young man with several days’ growth of beard, wearing a blue and white cap and dark-rimmed glasses. The chief of police went to the postoffice and observed a young woman sign for the envelope addressed to Allen Hanson. When she returned to the vehicle, the male driver drove out of town by a circuitous route, and the chief of police had a second opportunity to observe the driver at a distance of about 15 to 25 feet.

The next day, he observed Mrs. Brugge-man, whom he stated was not the young woman who had picked up the check, and also observed Bruggeman at the yard office in the stockyards, where he identified him as the man he had seen driving the vehicle at Glyndon. He also identified Bruggeman as that person at the preliminary hearing and at the trial, and identified a single photograph of Bruggeman.

The chief of police ascertained that the vehicle he observed at Glyndon was registered to Greg Bruggeman.

We are asked to reverse the conviction because of error of constitutional dimensions in allowing the identification in evidence. We decline to do so.

We have had two occasions recently to consider the question of single-photograph identification. State v. Azure, 243 N.W.2d 363 (N.D.1976), and State v. LaFromboise, 246 N.W.2d 616 (N.D.1976). We have also been referred to several Federal eases, in-eluding one upon which the appellant most relies, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Since deciding that case, the United States Supreme Court has decided Moore v. Illinois, -U.S.-, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).

The first thing to be noted about the Federal cases is that all of them relate to identification of an alleged criminal by a victim of that criminal or by an undercover officer purchasing contraband. In all of them, the identification was crucial to the prosecution, since there was little or nothing to connect the defendant with the offense except the identification.

The present case is not at all similar, as the facts we outlined above show. The evidence connecting the defendant with the crime was probably ample, even without the identification of the chief of police, to convict. In addition to the evidence outlined above, it was shown by the prosecution that Bruggeman misspelled Glyndon in a handwriting sample in the same way it was misspelled on the brand sheet for the 19 missing sheep, and it was also shown that he had taken time off from work for an hour and a half at the time the check was being picked up at the Glyndon postof-fice, about 15 miles from his place of work. He told his supervisor he was going to the doctor’s office. No person by the name of Allen Hanson was known to a long-time postoffice clerk at Glyndon. Time records also indicated that Bruggeman was at work at the time the 19 sheep were diverted to the McDonald pens.

Thus this case is factually far different from the single-photo identification cases relied upon by the appellant. Here, the identification was made by a trained police officer while performing a routine piece of investigation. Bruggeman was already a suspect when he was observed by the chief of police, who promptly identified a photograph and the defendant himself as the person he had seen driving the vehicle used to transport the young woman who picked up the check made out to the fictitious Allen Hanson.

[872]*872In many respects this case is similar to United States ex rel. Robinson v. Vincent, 871 F.Supp. 409 (S.D.N.Y.1974), affirmed 506 F.2d 923, cert. denied sub nom. Robinson v. Vincent, 421 U.S. 969, 95 S.Ct. 1962, 44 L.Ed.2d 458 (1975). In that case a policeman saw the prone victim of a shooting, with the assailant standing over him, watched the assailant run away and pursued him, viewing him for a total of about 10 seconds, and later identified him at a station house and a preliminary hearing, after seeing a single photograph. There were some discrepancies in descriptions given at various times, but the identification was always positive. It was held that the identification, even though without a lineup and made after seeing the photograph, was not made under circumstances so suggestive as to require exclusion of the testimony. The court said:

“Moreover, Voltaggio was not himself a victim of the robbery or shooting; the danger discussed in Wade that a victim’s ‘understandable outrage may excite vengeful or spiteful motives’ is consequently, absent. See United States v. Wade, supra, 388 U.S. [218] at 230, 87 S.Ct. [1926] at 1934 [18 L.Ed.2d 1149]. On the contrary, Voltaggio was a trained police officer who upon observing the commission of a crime immediately concentrated his efforts upon apprehending the assailant and his accomplices.

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Related

United States v. Wade
388 U.S. 218 (Supreme Court, 1967)
Manson v. Brathwaite
432 U.S. 98 (Supreme Court, 1977)
Moore v. Illinois
434 U.S. 220 (Supreme Court, 1977)
United States v. Ben Herbert Sutherland
428 F.2d 1152 (Fifth Circuit, 1970)
State v. Azure
243 N.W.2d 363 (North Dakota Supreme Court, 1976)
State v. LaFromboise
246 N.W.2d 616 (North Dakota Supreme Court, 1976)
United States Ex Rel. Robinson v. Vincent
371 F. Supp. 409 (S.D. New York, 1974)

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Bluebook (online)
263 N.W.2d 870, 1978 N.D. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bruggeman-nd-1978.