Jones v. StateJones v. State
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Thе writ of error to review the judgment was improvidently issued by the clerk of this court as over a year elapsed from the date of the judgment of conviction; consequently, the writ of error to review the judgment is dismissed.
The writ of error to review the order denying the motion for a new trial raises two questions of law. While it was pointed out in State v. Simmons (1973), 57 Wis. 2d 285, 289, 203 N. W. 2d 887, and State v. Wollmer (1970), 46 Wis. 2d 334, 335, 336, 174 N. W. 2d 491, that the test to be applied in reviewing a trial court’s order denying a new trial is whether there has been an abuse of discretion, this test is not applicable where a question of law is presented, as the applicable test is whether the court was in error. State v. Mabra (1974), 61 Wis. 2d 613, 213 N. W. 2d 545.
The two questions raised on this review are: (1) Whether the defendant had a right to counsel at an informal confrontation in the lobby of the district attorney’s office prior to his being charged with a crime at which the victim-witness identified him as the armed robber; and (2) whether such informal confrontation was unduly suggestive and tainted the in-court identification so that neither identification should have been admitted in evidence at the trial.
Sometime later, a lineup was conducted in the Safety Building in which Jones appeared along with three or four other black males. Ellis sat some 15 to 20 feet from the lineup but was unable to identify any of the lineup participants as the man who robbed him because he did not have his glasses with him and could not distinguish one from another. Ellis was told to return to the detective bureau around 8:30 or 9, later in the morning. When he arrived that morning, he was not referred to the bureau of identification but was taken by a detective to the anteroom corridor outside the district attorney’s office. There he sat with the detective. Shortly thereafter, Jones appeared in the corridor accompanied by another detective and two officers on his way to the district attorney’s office. Ellis, upon seeing Jones, voluntarily identified Jones to the detective sitting with him as the man who had robbed him the preceding evening; later in the district attorney’s office, Ellis repeated the identification and Jones was then charged with armed robbery.
While Ellis was sitting in the district attorney’s office, there was present another cab driver, Jose A. Pierce, who had been similarly robbed the preceding evening and who had positively identified Jones at a showup conducted earlier that morning in the detective assembly as the man who had robbed him. There is a dispute in the record whether at this point Ellis talked to Pierce. At the
Wade
hearing, Ellis said he did not; Jones testi
At the time of the lineup in the early morning when Ellis could not identify anyone, Jones was without an attorney and also at the time of the meeting outside the district attorney’s office. Although Jones had contacted аn attorney, he was not notified of this informal confrontation. There is nothing in the record to indicate, if it is material, that the police staged this informal confrontation outside the district attorney’s office. The parties all treat this as an informal confrontation or one out-of-a-crowd identification, and this court will so considеr it.
The issues of the lack of an attorney and the suggestiveness of the out-of-court identification were the subject of a motion to suppress prior to trial, which was denied. At the trial, the prosecution put in evidence both of the identification of Jones by Ellis outside the district attorney’s office and an in-court identification and thе parties were subjected to cross-examination. The issues were again raised on the motion for a new trial, which was supported by a Wade hearing.
Right to counsel.
The first issue is whether Jones should have been afforded counsel at the pretrial, informal confrontation outside the district attorney’s office. In
United States v. Wade, supra,
the United States Supreme Court held that an accused was entitled to counsel at a “critical stage” of the prosecution and that a post-indictment lineup was such a critical stage. Counsel was required to insure the preservation of the accused’s basic right to a fair trial as affected by his right to cross-examine the witnesses against him and to have the effective assistance
In Gilbert v. California (1967), 388 U. S. 263, 87 Sup. Ct. 1951, 18 L. Ed. 2d 1178, the supreme court held that the absence of counsel at pretrial lineups was a ground per se for excluding testimony of the lineup identification at trial. The per sе exclusionary rule was not limited specifically to post-indictment identifications either in Wade or in Gilbert and was subsequently stated without such limitation in Foster v. California (1969), 394 U. S. 440, 442, 89 Sup. Ct. 1127, 1128, 22 L. Ed. 2d 402. Of course, the prosecution had the right at trial and the opportunity of proving by clear and convincing evidence that an in-court identification had a source independent of a pretrial out-of-court identification. United States v. Wade, supra, citing: Murphy v. Waterfront Commission (1964), 378 U. S. 52, 79, note 18, 84 Sup. Ct. 1594, 12 L. Ed. 2d 678; Nardone v. United States (1939), 308 U. S. 338, 60 Sup. Ct. 266, 84 L. Ed. 307. The proper test to be applied was adopted from Wong Sun v. United States (1963), 371 U. S. 471, 83 Sup. Ct. 407, 9 L. Ed. 2d 441:
“ * “ [W] hether, grаnting establishment of the primary illegality, the evidence to which instant objection is madehas been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ ” United States v. Wade, supra, page 241.
After these decisions, this court decided
Wright v. State
(1970), 46 Wis. 2d 75, 175 N. W. 2d 646, and
Hayes v. State
(1970), 46 Wis. 2d 93, 175 N. W. 2d 625. In
Wright,
this court stated that the substantial equivalent of the federal post-indictment stage began after the issuance of the wаrrant or complaint. In
Hayes
this court took the view that the critical stage at which an accused was entitled to counsel was that point in the proceeding when it had “moved from a purely investigatory to an accusatorial stage.” Under this view of the Wisconsin and Federal Constitution’s guarantee, the defendant would be entitled to counsel prior to being formally charged with a crime by a warrant or complaint. However, in
Kirby v. Illinois
(1972), 406 U. S. 682, 92 Sup. Ct. 1877, 32 L. Ed. 2d 411, the United States Supreme Court severely limited the application of the
Wade-Gilbert
rule under the federal constitution and held that an accused had no right to counsel at a lineup conducted prior to the commencement against thе accused of an adversary, judicial, criminal proceeding.
Kirby
then held that the criminal proceeding commenced for federal constitutional purposes when the state government had committed itself to prosecute “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” After
Kirby,
this court reshaped the Wisconsin law to reflect the
Kirby
limitation by withdrawing the language in
Hayes
which hаd established the mark between the investigatory and the accusatorial stage and recognized the mark as that time when the warrant is issued or a complaint filed.
State v. Taylor
(1973), 60 Wis. 2d 506, 521, 522, 210 N. W. 2d 873;
State v. Russell
(1973), 60 Wis. 2d 712, 720, 211 N. W. 2d 637; see
also:
Jones argues that even under Kirby he was entitled to counsel at the informal confrontation outside the district attorney’s office. He had obtained counsel the night before; the police officers knew who counsel was; and there was no urgency for the confrontation and he was brought to the district attorney’s office for the рurpose of issuing a complaint against him; and under these facts, there was a beginning of the adversary proceeding against him. This would have been a good argument under Hayes; it has no merit under Kirby and the subsequent cases in Wisconsin. If the line of demarcation is to be definite, the complaint or the warrant must be issued. Anything prior to that time falls on the wrong side of the linе. Consequently, no constitutional right of Jones was violated because of absence of his counsel at the informal confrontation outside the district attorney’s office.
Informal confrontation.
Jones claims the informal confrontation was unduly suggestive and tainted the in-court identification. In
Stovall v. Denno
(1967), 388 U. S. 293, 87 Sup. Ct. 1967, 18 L. Ed. 2d 1199, the United States Supreme Court announced that, independent оf any
Wade-Gilbert
claim, an accused might gain relief if he could establish that he had been subjected to a confrontation “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Wheth
Not every instance of suggestiveness in a confrontation procedure violates due process. See Neil v. Biggers (1972), 409 U. S. 188, 93 Sup. Ct. 375, 34 L. Ed. 2d 401. Law enforcement authorities are required to make reasonable efforts under the circumstances to conduct a fair presentation for identification so as to avoid the likelihood of misidentification which is a primary evil to be avoided. The police should avoid suggesting identification.
Jones argues that the informal confrontation in the district attornеy’s outer lobby was unnecessarily suggestive because: (1) It was a one-to-one confrontation such as condemned in
Stovall v. Denno, supra,
because the accused did not mingle in the room with the other people but was escorted through the room to the district attorney’s office in handcuffs by a detective; (2) the district attorney’s office’s lobby or outer office was suggestive of guilt and a more accusatorial setting than a formal lineup in a police department; (3) there was no compelling reason for this type of confrontation because a formal confrontation was available and in fact had been used earlier in the morning when the other cab
Obviously, objections four, five and six are not based on the record but are merely speculation of what might have happened. This is not proof of the suggestiveness of the lineup. We do not consider this informal confrontation as a one-to-one confrontation, nor are the facts clear that Ellis saw the hаndcuffs upon Jones. Ellis testified he did not; but even if he did, that fact alone would not be sufficient suggestiveness.
The identification of Jones by Ellis in the district attorney’s outer office or lobby was not prompted by the police; Ellis was not told why he was taken to the district attorney’s office; he did not expect a confrontation. So far as the rеcord shows, Ellis, upon seeing Jones, spontaneously identified Jones. This was a natural reaction under the circumstances.
Jones’ third argument that there was no compelling reason for this confrontation does not necessarily make the confrontation suggestive. There is no evidence to show that the prior formal lineup hаd any influence on Ellis’ unprompted identification; although, in the first lineup Ellis could not identify Jones because he did not have his glasses — he did have his glasses on in the district attorney’s outer office.
In respect to the reliability of Ellis’ identification itself, Ellis had an opportunity to observe Jones twice, once when he put on the dome light prior to the robbery and again when Jones told him to look at the revolver. Jones was only two to three feet away at both times. In both instances, Ellis’ degree of attention was high. A description of Jones given to the police immediately after
“As indicated by our cases, the factors to be considered in evaluating the likеlihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and thе confrontation.”
See also United States ex rel. Phipps v. Follette (2d Cir. 1970), 428 Fed. 2d 912; Sobel, Eye-Witness Identification (1972), pp. 64, 69, sec. 37. The Biggers pronouncement has been accepted in Pate v. State (1973), 61 Wis. 2d 25, 30, and State v. Russell (1973), 60 Wis. 2d 712, 721, 211 N. W. 2d 637.
We think the trial court committed no error in allowing the out-of-court identification in evidence and it follows that the in-court identification was likewise properly admitted. At the
Wade
hearing the trial court found the in-court identification “was an independent recollection of his own based on his observations as he viewed the defendant at the time of the trial.” This determination the trial court is competent to make. It
By the Court. — Writ of error to review the judgment is dismissed; the order denying a new trial is affirmed.