*1 error, Plaintiff Defendant in error. Jones, State, July Argued No. State 155. June 1970. Decided reported 42.) (Also N. 178 W. *4 plaintiff For the in error there were oral briefs and argument by Charles Rowan of Milwaukee. argued
For the defendant error the cause was Hodan, Theodore attorney J. assistant district Milwau- county, kee with whom on the brief were Robert W. War- attorney ren, general, McCann, and E. Michael district attorney.
647 concern- Defendant raises numerous issues J. Wilkie, identity testimony defendant ing of the admitted toas disposi- are and which choose to consider we first which They are: tive of this case. pretrial lineups held such
1. the Milwaukee Were represented at such stage he entitle defendant a as to lineups by counsel? lineups represented at so, such
2. If defendant was by counsel? totality these circumstances were
3. Under suggestive lineups and unfair to the as the defendant? independent or the
4. court room Were identifications lineups ? direct of the Milwaukee result generally lineups are the same The involved in case this Wright v. State.2 witnesses ones reviewed as of the details are different and some and the crime lineup different Union are Credit the St. Elizabeth’s Union respects American Motors Credit from crucial Wright. by lineup court in examined this Necessity counsel. de- Wright, the same wherein was lineup here, court the first Milwaukee as
scribed “ place after lineup here ince did take decided that [s] or, warrant, presence counsel, the issuance 3 required.” counsel, alternative, waiver of in the Here, case had been issued so this no warrant such Hayes State,4 decision controlled court’s right involving Wright day on the same decided Hayes lineup. In we decided prewarrant to counsel at stage, an accusatorial matter reached that since lineup. The Hayes instant to counsel at entitled stage and we think had also reached matter 2 Supra, footnote 1. page Id. at 175 N. 2d 625. W. Wis. *6 the Milwau- Hayes, to counsel at
under was entitled Jones lineups. kee counsel.
Presence of 5 Wright question of whether in of the Our discussion adequately lineups had counsel at the Milwaukee Jones in aspects and the decision all of that issue considers Wright present at those provided and that counsel was lineups repeated here.6 lineup.
Suggestiveness of quoted Wright. There we in issue raised This same v. from Stovall the standard test as fairness “7 process of law of due Denno: £. . . a claimed violation totality depends on the a confrontation conduct of 8 surrounding In Stovall the ....’” of circumstances it recognized Supreme that the conduct United States Court sug unnecessarily may procedure be “so of identification gestive irreparable identifica mistaken conducive 9 process of law. a denial of due tion” as to be Wright specifically trial court’s concurred in the we holding lineups in that case were that the Milwaukee fairly conducted.10 lineups
The record this case demonstrates materially approved in from those here were different case, Wright. lineup in the instant At the first Milwaukee 5 pages Supra, 1, footnote at 83-86. 6 correctly represented held trial court here that Jones was attorney lineups. by an at the Milwaukee 7 Sup. 1967, (1967), 293, 302, 388 87 18 Ed. 2d 1199. U. S. Ct. L. 8 supra, 1, page Wright State, v. footnote at 86. 9 Denno, supra, 7, page footnote at also: v. 302. See Stovall 440, Sup. 1127, S. Ct. Foster v. U. California L. Ed. 2d 402. 01 Wright supra, page State, footnote Negro viewed with other two defendants were two (both thirties) pres- police in the male officers their American Motors ence of several both the witnesses rob- Union Credit Union Credit and the St. Elizabeth’s Wright were identified At the time beries. Jones Union the American Motors Credit individuals involved in standing (victims robbery) robbery witnesses employees up pointing The four to the defendants. identifica- Union no St. Credit Elizabeth’s tions. in which held a few later
At second minutes police defendants and the two officers were the two same again presented Credit Union to the four St. Elizabeth’s *7 put required on employees, to two were the defendants given in find no reason camel-colored overcoats. We clothing putting special on two record for the the this No claim two robbers defendants. union attired in overcoats at the time the credit were robbery. lineup At Heiden identified Jones Wright thereupon up pointed out the and he stood defendants. employee of Credit Union
No other St. Elizabeth’s lineup at this or when identified either defendant again lineup. in a came back third defendants reported Karen testified that first her identi- Kane she attorney’s in district fication of Jones office some lineups. after claimed that she She minutes lineup step did him at but that she identified the first identify Heiden to him then or when saw forward she lineup point up at the to because stand Jones second afraid. was she totality of that under the circumstances
We think lineup unfair and identification of Jones was Milwaukee suggestive for two reasons: (and Wright) presented line-
1. as second Jones special up in a manner calculated to were clothed attract persons make them from attention and to stand out other lineup.11 in that alleged victim of crime More than were one identify
present permitted at the time and were to same way by a influence Jones identification an person. respect other In think conduct of we lineups quite lineup procedure these similar criticized in Gilbert California.12 Gilbert, present over 100 witnesses were when Gil- brought stage. Many bert was onto a witnesses were victims other numerous in which crimes Gilbert was suspect. There was audible wholesale identification of by many Gilbert pres- of the and in each witnesses other’s (accompanied by ence. Here the identification audible physical designation by pointing) of Jones and Wright during the American Motors with several robbery victims both that and the St. rob- Elizabeth’s bery present, followed second where witness pointed Heiden to Jones and identified him as Eliz- a St. unfairly suggestive robber, abeth’s to the other three being victims who were asked to make identifications. procedure substantially This different approved than the one Wright, (according where case) record identifying in that each witness wrote on piece paper person the number picked of the each out lineup.13 *8 lineup made at the identifications as testified to proceedings in these unquestionably prejudiced the de- fendant and we must reverse his conviction on this ground. 1 1 generally: Thompson See (Okla. 1968), v. State Crim. 438 page 287,
Pac. at 2d 289. 12 (1967), 263, Sup. 1951, 388 U. S. 87 Ct. 18 L. Ed. 1178. 13 Wright State, supra, 1, page v. footnote at 86.
651 Jones. In-court identifications of of though identifications Milwaukee Even necessary, of in view out, it ruled still Jones are again identification will new trial which issue state-produced, in-court raised, whether the to consider sufficiently testimony from a source identification lineups. independent the defective Kane employees Heiden and Elizabeth’s both St. While they lineups, they identified Jones at testified independent identification in-court to an testified also they they eye claimed on an defect which based Jones We are thus time the crime committed. noticed at the be determined it presented which with situation exploitation come about identification whether this has “ sufficiently ‘by distin- lineup, or unfair means Maguire, primary guishable purged taint.’ to be 14 Guilt, (1959).” 221 Evidence things prior opportunity test, Under any discrepancy alleged act, be criminal observe description actual pretrial and the defendant’s tween by picture prior description, of defendant prior identify aon lineup, the defendant failure to to the alleged act lapse of time between the and the occasion 5 identification,1 pertinent for this are and the consideration. court’s eyewitnesses to rob- Kane Heiden and were
Both
Im-
approximately
five minutes.
bery
lasted
which
police that he
mediately
crime,
Heiden told the
after
identify
later
participants, but
not be
would
able
general description
gave
police a
robbers
he
tall,
Negro
5 and 6 feet
between
between
were
males
(1963),
488,
471,
Wong
371 U. S.
States
Sun
United
v.
407,
441;
v.
Sup.
United States Wade
9 L. Ed. 2d
Ct.
Sup.
1926,
twenty years twenty-five Karen old. Kane said eighteen twenty Negro males between robbers were years Heiden nor Kane identified defend- old. Neither any photographic Neither from witness ant source. although lineup Kane identified at the first witness Jones recognized immediately upon him see- later indicated she twenty- ing approximately addition, there was him. robbery lineup day lapse of time between and the six by the These fac- which defendant was seen witnesses. at identifications of defend- tors indicate that in-court solely improper lineup ant here from the and that arose Yet independent existed for the identifications. no source they based their in-court both testified witnesses eye on Both of his noticeable defect. identification Jones opportunity to what see was described witnesses robbery bulging eye at defendant’s the time the as they again occurred. Both testified observed this eye their defect at based upon factor. not think We do this a reason- there concluding independent for able basis there was source contrary, On the for the Jones. would identifications it eye defect mention of contained that since no seem given police by description im- in the witnesses fatally mediately robbery, after the which was suggestive for the identifica- the sole basis in-court origin independent no tion of the defendant. There was contemplated Gilbert, and in Wade and therefore case not have been in-court identification should preclude on the new allowed.16 This the state does attempting in this to establish an identi- trial matter from sufficiently independent defendant fication invalidity.17 lineups free constitutional tainted to be 16 California, supra, pages 272, See Gilbert v. footnote 273. People Rptr. See v. Caruso Pac. Cal. *10 Jones’ confession. case, the defendant held in
After the second inculpatory to Jackson. Detective made statements per Wright presiding judge to previous Case, refused Jones, his in which he admitted mit the statement of participation case, be admitted American to Motors during That in that case. state into evidence the trial inculpatory time the state ment at the same was made Judge Rice, question However, here made. ment in testimony hearing,18 permitted of this after Goodchild Judge hearing given. After this to statement Rice following ruling: com- “Now, the defendant Det. Jackson did advise forgetting rights or pletely all of to remain his silent answering questions telling stop him that he could not any right attorney an and that he had a to have time during interrogation. find, however, that present I Attorney Attorney Mr. talked an Sekora and to Jones firm Conen, with the same both whom are associated he he assumed that and that Mr. Conen when testified representing the time and did discuss Mr. Jones at him, rights tell al- and did him to remain silent with his specifically, though did tell him he does not remember obligation anything, say to make state- had no to that he ment anyone. Det. whether He not remember does speak client or him if he could to his Jackson asked defendant, says however, he Det. that asked Jackson immediately speak and he could to his client Mr. Conen if particular Mr. and he did with Jones thereafter discuss immediately from resulted this discussion admissions by Det. the defendant before this admission was made right to have the Jackson told him that he continued remain anything for or said would be used he silent against him. 2d ex rel. v. Burke 27 Wis. See State Goodchild Roney 753; (1969), 44 2d State Wis. 2d 133 N. W. N. W. opportunity “I rule then that Mr. Jones attorneys to discuss this situation with two attorney say fact that the did to Mr. he could Jackson that question right him do in an result effective waiver of the represented by attorney to be at the time these admis- sions were obtained effective waiver is described Supreme the Miranda Decision and the Court of Wis- consin. say “I should for the I record that find Mr. Jack- present during son did not rogation Conen to be ask inter- Jones’s inquire and that Det. Jackson did not of Conen specifically represented if he Mr. Jones.” ruling,
Defendant several on this claim- makes attacks *11 ing among things given other that he never an ade- was 19 quate warning concerning right Miranda to remain his warning given long and that silent was too before interrogation protect rights. his constitutional
Attorney
testimony
arguments.
Conen’s
rebuts these
previously
Wright
indicated,
As
court in
found that
this
Attorney
represented
during
Conen
the defendant
lineups.
case, Attorney
prior
In this
Conen testified that
police
to Jones’ statement
to the
he advised Jones that
any duty
obligation
any
he
“not under
or
to make
any
anyone
statement or make
and
disclosures to
could
rely
privileges.”
testimony
on his constitutional
This
clearly
police may
indicates that while the
failed
have
give
duty
warnings
proper
their
to the defend-
ant,
by
attorney
this failure was cured
the defendant’s
advising
rights.
intervening
by
him of his
This
action
Attorney
shortly
Conen
before the statements were made
warnings by
answers
claim
defendant’s
that
given
long
police were
too
before the statement
to be
prejudiced.
effective. Defendant was not
Defendant ob-
jects
finding
Attorney
represented
to the
that
Conen
him
any
finding
at
time,
against
great
but this
is not
weight
preponderance
and clear
evidence,20
of this
has
19
Arizona, (1966),
Sup.
Miranda v.
1602,
384 U. S.
Ct.
Defendant contends representing in- him made the Conen was the time he culpatory statements, erroneously ruled the trial court Attorney to Detective Jackson statement Conen’s question he effective could defendant was an attorney. right represented Ac- waiver cording defendant, alleged not to the waiver was any strategy or part of trial and he did not authorize participate facts circumstances sur- it.21 The rounding alleged waiver, unclear, indicate while police Shortly Attorney after Conen left the otherwise. admitting station, his the defendant made his statement allegation robbery. participation in the St. No Elizabeth’s involuntary the result is made that this statement overreaching position police. The defendant’s throughout any state- trial was that never he Judge finding by ment to Detective Jackson. The Rice inculpatory made the state- that defendant at the time he right present to have counsel ment had waived his great weight preponderance against and clear evidence.22 judicata.
Res
*12
Judge
prior
argues
counsel
Defendant’s
Mueller’s
admitting
involvement
ruling
his
that Jones’ statement
robbery
inadmissible should
American
was
in the
Motors
prevent
con-
judicata
in
case and thus
be res
inculpating him in the St.
statement
of the
sideration
disagree.
robbery. We
Elizabeth’s
Although
same
were made at the
two statements
these
excluding
ruling
prior
a
in a
case
time, the claim that
21
Sup.
Mississippi
(1965),
443,
Henry
85
379 U. S.
Ct.
v.
See
1,
(1966),
408;
384
86
Brookhart v. Janis
U. S.
13 L. Ed. 2d
Sup.
1245,
one the Miranda had statement because been given long judi- too before the confession should res be cata case is untenable. argues correctly judi-
The state that the doctrine of res applies only previous cata where the determination guilt issue of or innocence.23 reaches ultimate People Dykes the issue raised was whether physical suppressed during prosecu- an evidence earlier tion of the defendant a court because had found illegal, search and seizure to could be received evi- subsequent at a trial of dence the same defendant for judge another before a different offense concurrent jurisdiction. That court stated: “A determination either of fact or law cannot be said adjudication an directly to be unless it a matter settles question in issue. A of fact an becomes issue when it is one which must be determined before the ultimate deci- Dykes’ sion can be reached. Whether the search of car legal question an essential of fact. It related only admissibility to possession evidence. Proof of guns many in the car could have made in been ways, sought proved process but each fact to be in the or, would not be a fact words, issue in other a fact the municipal judgment. existence of which was essential to the judgment ruling court suppressing or the question evidence determined law; an incidental but it determined no of law or issue fact which had to be de- cided before the court could determine the guilt, issue of Dykes namely, guns whether in his car. preliminary ing the to mind. One would be ruling. By informer, court in had been Many “Only suffering instances doctrine of collateral another case confusion seized for the refusal of the to the dismissal, People receipt ruling misapplication holding injustice have or estoppel rejection exclusion a People itself right a would result from later of the doctrine come bound would be of offered evidence. People of evidence which ruling every ruling do, at of another penalized, name expense former apply- generally: See Annot. 9 A. L. R. 3d 203. 24 (1966), App. Rptr. 578, 579, Cal. 52 Cal. *13 exercising estoppel, from collateral of under the doctrine already right seen have of choice. We an undoubted exten- an unrestrained injustice can result from that by the offered that was of evidence the doctrine. sion guilt of conclusively People both defendants. established would have strength gone Dorrough on has free Dykes’ trial municipal ruling in first court a of binding upon in the rob- court held to which be was join Dor- Dykes loose to bery rough also turned trial. will People, upon preying citizens unless robbed his prove he upon permitted that retrial, are guns using very did, unquestionably victims, which he him. that were taken from admissibility of the one, retrial, “In a if there is upon for if offered People’s be ruled evidence should time.” the first Here, too, case the doctrine of res instant judicata inapplicable. admissibility ruling Judge settled
While Mueller’s Wright Case, had no it of confession defendant’s for subsequent prosecution the defendant effect on Judge Mueller Moreover, at the time another crime. Attorney ruling, benefit of did not have the made his he testimony the defendant he advised Conen’s Attorney rights prior confession. to the his defendant’s trial testify in American Motors was unable to Conen recuperating attack at from a heart because he was Judge informed of the sub- Thus, time. Mueller Attorney the defend- with conversation stance Conen’s Attorney Judge Conen told Here, Rice knew that ant. ruling rights. He free to enter his defendant his ruling. Judge prior regardless Mueller’s poisonous tree. Claimed fruit of in the identification Defendant that since his claims any constitutionally defective, subse- lineup was Ohio improper it quent is likewise since any illegality first of this subse- tainted page Id. at *14 658 26
quent poisonous the identification the “fruit of tree.” is Defendant also of defendant claims the confession have been barred evidence for the same reason. should illegal, lineup may completely the been While Ohio have nothing lineup there in record to indicate that this is this any subsequent way influenced the argument made the or defendant his confession. lineup, Ohio defendant that had it not been for the the not have been returned for the subse- would to Milwaukee quent proceedings. discussing Supreme
The United Court States issue, has said: by “. . . is not court the case envisioned [T]his exclusionary application rule
where no because has government indepen- learned of the evidence ‘from an States, source,’ Silverthorne Lumber Co. v. United dent 392; 385, 251 U. S. nor a case in which the con- is this police nection between the conduct of the lawless discovery challenged evidence has ‘become so v. dissipate 338, the taint.’ Nardone United attenuated as to States, 308 U. S. all evi- 341. We need hold that poisonous simply ‘fruit of dence is tree’ because it light illegal would not come have to but for the actions police. apt question Rather, of the more granting ‘whether, primary case is establishment illegality, objection the evidence to which instant by exploitation illegality been at has come or by distinguishable purged sufficiently instead means be primary Maguire, Guilt, taint.’ Evidence of 221 (1959). . . .”27 case, assuming In the instant even the Ohio defective, any subsequent activity by police the Milwaukee sufficiently distinguishable original dissipate illegality. robbery
Moreover,
only charge against
was not the
de-
prior
fendant since
return from Ohio
his
a criminal
See Silverthorne Lumber Co. v. United States
Sup.
385,
182,
S.
U.
Ct.
are exact, suspects of To be three in criminal cases. cations mines, land to wit: (?) Stage.
(1) Accusatorial
Upholding
of
the
identification and conviction
holdup,
credit
court
this defendant
in another
union
by
represented
the
held that
counsel at
the defendant was
lineups
lineups
case,
in
here
involved
that
same
as
Wright
(1970),
v.
2d
involved.
State
Wis.
day, this
2d
N. W.
another case decided
same
court,
prewarrant
lineups,
be-
as to
made a distinction
investigatory
identifications.
tween
and accusatorial
Hayes
of the defendant one of that held St. Elizabeth’s credit union in that defendant suspect during another camel-colored one of wore coats lineups suggestion the three conducted. There no objected any way counsel for the defendant to the donning any of the camel-hair coats. Nor con- is there nection between camel-colored and the credit union coats holdup robbery armed place here involved. The took hardly September, the season for overcoats. The testi- mony defendant, wearing jacket reveals a carrying gun, leaped get money. a over counter quite gymnastic That would feat for an overcoat attorney wearer. The appeal, for the defendant on this at the time argument, forthrightly of oral stated that the camel-colored relationship coat had no to the crime here *16 majority involved. holds, The however, that a camel- person colored coat makes a stand out. persons were four lineup, suspects
There in the two police and two officers. The viewers were to determine they recognized any if of holdup the four one of as the gang. the Thus viewers were concerned with facial fea- identifying tures, body general build, characteristics, ap- pearance. putting How could person overcoat on a wearing jacket whom the witness had seen a make identi- person fication of as who one committed the crime likely? involved more on the Criminals lam don different clothing they than wore at the of scene their crimes to escape detection, not to facilitate it. If clothing, in not any way similar to that worn at time the of crime, might important, equally rele- form and fit that not be lineup garments that person If vant? one in the wears might this large, are too or too not several sizes small police depart- Perhaps special “attract attention”? also bring lineup par- are in to tailors to insure ments Or, similarly ticipants properly fitted. are attired saying persons lineup majority a don that all in must garment? so, type If it color and of would same say so, to to for the future what rather than best leave a render sartorial dissimilarities subject to future attack. Bandwagon?
(3) What bandwagon aspect lineups majority finds a citing Supreme involved, de here a United Court States over hundred to various cision which one witnesses and, other, in a room crimes were one after shouted perpetrator suspect out their identifications as number of crimes. Gilbert a California Sup. 1951, 18 Ct. L. Ed. 2d 1178. No student U. S. bandwagon group deny aspect psychology would upon piling identifications one other of shouted However, was such mob scene. here the defendant during lineups participating in two identified three as Company Eliz crimes: The American and St. Motors there four record were robberies. The shows abeth’s robbery Elizabeth from the St. witnesses wit identification was made. Two when oral these identify defendant never able to were nesses mob no participant crime. So there here was wagon. fact, band, since the defend scene, no and no bandwagon any lineup, ant was not identified at first away from, toward, tendency, was, there moved if one Supreme the United identifications States the wholesale objectionable. Additionally, defendant, Court found represented by found, counsel at these court has having any type lineups objection no present. Or is the more than crime one witnesses *17 majority saying police-conducted that a identification incident, particular must to be limited one with permitted no or of other witnesses victims incidents goes present? beyond meant, If what it well that is is Case, Gilbert but it had now and better be stated exploded later.
Prompt
suspects
proper
an
and
important
enforcement,
tool of law
not alone for the iden-
crime,
tification
one
re-
who committed a
but
for
custody
suspicion
lease from
who are
and
cleared
those
by
lineup.
determining
Despite
role in
innocence
its
guilt,
majority opinion
well as
as
here
hazard-
makes
in-custody
police-conducted,
lineups.
ous
The
use
prudent prosecutor
may
law officer
this state
in-custody lineups,
well conclude that
use of
even with
defendant,
by
here, represented
counsel,
as he was
his
against
jeopardizing
particular
an
involves
entire case
so,
defendant.
If
the direct confrontation between wit-
suspect,
upon
ness
or identification based
examina-
may
photographs,
appeal as, perhaps
tion
well
less
certainly
reliable, but
vulnerable
later
less
courtroom
important
so,
seeking
If
attack.
tool in
truth
investigations
criminal
will
taken
have been
from law
always,
enforcement officers. As
it will be the innocent
suffer,
suspected
inaccurately
will
who
those
of criminal
gen-
involvement
well
as
of crime
victims
and the
public.
say
eral
It
not too much
that
decision
places
path
new hazards
of effective law enforce-
ment, all the more fearful
their
because
exact location
range
of blast is not made clear.
finding
writer
affirm
would
here,
the conviction
police-conducted lineup
investigatory,
suggestive,
it was not
represented
and that defendant objection
procedure
counsel who made no
to the
fol-
Alternatively,
majority
lowed.
correctly
because the
finds
admissible,
confession to be
I
defendant’s
would hold
error,
if
existed,
beyond
to be “. . . harmless
*18
Chapman
v.
reasonable doubt.”
California
24,
Sup.
824,
If
U. S.
Ct.
Gray, Casualty Respondent, Rural Insurance Heritage Appellant: Company, Defendant Company, Defendant. Mutual Insurance Argued June June 26, 1970. No. 345. 1970.Decided reported 817.) (Also N. W.