*1 Plаintiff-Respondent,† Wisconsin, State Defendant-Appellant-Petitioner. Ricky McMorris, Court
Supreme argument September No. 95-2052-CR. Oral 30, 1997. October 1997. Decided (Also 384.) reported in 570 N.W.2d 16, 1997. for denied December reconsideration †Motion *3 defendant-appellant-petitioner there were For argument Stern, W. Union Walter and oral briefs Grove. argued plaintiff-respondent the cause was
For the attorney general, by Stephen Kleinmaier, assistant W. Doyle, E. assistant James the brief was with whom on attorney general. JUS- ABRAHAMSON, CHIEF S. 1. SHIRLEY unpublished decision of an This is a review
TICE. appeals, McMorris, 95-2052- No. State the court of (Wis. 1996), App. op. unpublished Oct. Ct. CR, affirming reversing part part of the an order and Barry, County, Dennis J. Racine Court for Circuit Judge. of the defen- denied the motion court The circuit suppress Ricky two identifications: McMorris, to dant, (1) eyewitness's defen- of the in-court identification (2) dant pre-trial post-indictment, con- in a
defendant *4 his of to and the absence notice ducted without right to Amendmеnt his Sixth counsel violation counsel. part appeals ofthe that affirmed The court of denying to motion the defendant's court order
circuit suppress The defendant identification. in-court part appeals seeks review of this of the court of deci appeals part sion. The court of reversed that denying circuit court order suppress the defendants motion to constitutionally lineup defective identifi challenges cation. Neither the State nor the defendant part appeals
this
of the court of
decision.1 The court of
appeals remanded the cause to the circuit court for
proceedings,
parties agree
further
cause must be remanded.
that
only
¶ 3. The
issuebeforethis courtis the admis-
sibility
eyewitness's
ofthe
in-courtidentificationofthe
lineup
defendantafter an identificationin a
that vio-
right
lated the defendant's Sixth Amendment
to
eyewitness's
counsel.Weholdthat the
in-courtidenti-
suppressed
ficаtionshouldbe
becausethe Statehas not
convincing
eye-
shown clear and
evidencethat the
witness'sin-courtidentificationof the defendanthad
"independentorigin,"
is,
an
that
that the sourceofthe
in-courtidentificationwas the
tion of the robber
independent
observa-
during
robbery
and was
lineup
of a
that violatedthe defendant's
SixthAmendment
to counsel.SeeUnitedStatesv.
(1967).Accordingly,
Wade,
I. undisputed purposes ¶ 4. Thefactsare for ofthis 3, 1994, Jordan, review.On December Patricia a 67- part 1 The State did not seek review of this of the decision appeals because, explains, court as the State's brief Supreme United States Court has declared evidence of an made at a which was held without notice in the absence of counsel must be excluded from the trial. California, See Gilbert 388 U.S. 272-73 *5 year-old knife-point as wоman, was white robbed grocery working Pleas- at a store in Mt. she was alone ant, WI. According
¶ man the Jordan, to a entered up register was store, walked to the cash where she change. working for was and asked her some Jordan standing the man stand- counter, behind the was ing couple side. a of feet across from her on the other register opened provide the Jordan the cash When change, pointed her, a her to leave the man knife at told money open and from the drawer. the cash drawer took drawer, the from the Jor- As the robber removed cash register away about 10 feet from the cash dan backed continuing slicer, to watch and hid behind a meat while eyeglasses wearing at the Jordan was her the robber. robbery, the was well lit. After time ofthe store police. the store, left the Jordan called robber robbery, after the 6. About 15 to minutes Police Jason of the Mt. Pleasant Officer Wortock Department Jor- He arrived at store. interviewed gave physical description she dan and took down the an was robber. Jordan testified that robber wearing male, tall, feet at least six African-American golfer’s cap jacket. She that she and a tan said white She never seen the robber before. described had single-edged tapered, knife about knife he used as a long. to the rob- sole inches Jordan eyewitness. bery as the and is hereafter referred to police otherwise, recovered, never search warrant or cap jacket knife, of the robber. or robbery day Officer on the 7. Later Long Investigator Jayn showed Bell and Fulton suspects, potential photographs six including, photographs All the one the defendant. hair, men, with facial of African-American some were Apparently police some without. were uncertain at eye- this time whether the robber had facial hair. The identify anyone witness did not the defendant or else *6 рhoto array from the as the robber. taped 8. A store surveillance camera the rob-
bery entirety. According tape, robbery its approximately to the the lasted 25 seconds. The videotape shortly robbery viewed the after the and turned it over to Officer Wortock who viewed the video- tape including with officers, several other Bell Officer Investigator Long. and seeing videotape, 9. After Officer Bell con-
cluded that the like robber looked the defendant with they grown whom up Bell was familiar because had neighborhood. the same Officer Bell testified that he had seen the defendant on 29, November 1994, four days robbery responding before the while to a civil dis- turbance call, and had observed that at that time the wearing defendant had full facial hair and was a tan (The jacket cap. and a defendant was not involved in disturbance.) the civil upon
¶ 10. Based her observation of the video- tape subsequent in-person and her obsеrvation of the County defendant at the Racine Jail where he was charge, Investigator incarcerated on an Long unrelated concluded that the defendant was the robber. Prior to robbery, Investigator Long had not been acquainted with the defendant. January
¶ 11. On 4, 1995, the defendant was charged robbery, public with armed and a defender appointed days the defendant's counsel. Five later on January Investigator Long, 9, 1995, with the assis- Corporal tance of staged lineup James Stratman, a with including five African-American males, the defen- approximately dant, all of weight whom were the same age had and all of whom facial and as defendant operating police Apparently at this time hair. were premise hair. on that the robber had facial After asking step initially in the another man to for- ward, as identified the defendant robber.
¶ 12. The defendant's counsel did not attend the lineup, his at no did the defendant waive time Investigator Long presеnt. and Cor- to have his counsel poral notify to the defendant's counsel Stratman failed lineup, saying they about the were unaware present was entitled have counsel defendant lineup procedure. post-indictment did not officers lineup, photograph the either video or still camera. eyewitness subsequently ¶ 13. The identified the hearing January preliminary defendant at on *7 jail wearing orange he uniform and when was an prelim- attorney next to an at a table. At the was seated inary hearing she knew the testified that long sure if he the had sideburns but was not robber prelimi- a asked at the had mustache or beard. When why nary hearing the the she had selected defendant at lineup, him, in testified that she chose the part, he tall. because was pre-trial
¶ filed a motion to 14. defendant ground suppress lineup that the identification on the improperly lineup had conducted the the been pre-trial his He filed a motion absence of counsel. also claiming suppress identification, it the that to in-court by lineup the unconstitutional out-of-court was tainted an identification did not have and that the in-court lineup. origin independent theof suppress refused to the The circuit court 15. concluding police lineup that had identification, the lineup procedure good acted in faith and that impermissibly suggestive. not otherwise The circuit jury court ruled would be instructed that the deprived right had defendant been of his to counsel at lineup. granted appeals ¶ 16. The court of the defendant appeal suppression leave to order and ordered the lineup suppressed. part This of the court appeals decision is not before us. appeals addition, In the court of affirmed admitting the circuit court decision the in-court identi- ground by fication on the State had shown convincing independent clear and evidence that an source existed for the in-court identificа- tion and that the in-court identification had not been lineup part tainted identification.2 This appeals court of decision is before us on review.
HH I—I previously ¶ 18. This court not has discussed the applicable determining standard of review in whether an source exists for an in-court identifica- tion made after a that violated an accused's Sixth Amendment has, to counsel. The court how- applicable ever, considered the standard of review analogous an issue of attenuation Fourth Anderson, Amendment context. In State v. 165 Wis. 2d (1991), 441, 447-48, 477 N.W.2d this court charac- question a terized as fact constitutional whether suppressed prior evidence should be as the fruit of illegal sufficiently search or whether evidence was
2 conclusion, reaching In appeals this the court of consid certainty testimony ered the preliminary hearing hearing. suppression See State v. (Wis. McMorris, 2052-CR, unpublished No. op. at 11 n.5 Ct. 95 — 2, 1997). App. Oct. 164 Adhering purged the taint. to attenuated so as to be of analysis, characterize as a constitu- the Anderson we question independent fact the whether an source tional lineup exists for an in-court identification made after a an accused's Sixth Amendment to violated ordinarily apply counsel, and we the standard ofreview applied questions of constitutional fact.3 Questions fact are of constitutional some- questions law, to as mixed of fact and times referred requiring happened the court to determine what and legal particular whether the facts found fulfill a stan- reviewing Ordinarily, question dard.4 when a mixed engage two-part appellate law, fact and courts inquiry. inquiry The first relates to the circuit court's appeals findings nor this of fact. Neither court findings a circuit of historical court will reverse court's clearly evidentiary they fact unless are erroneous. or inquiry question The second relates to the whether satisfy evidentiary con- historical or facts relevant inquiry made this stitutional standard. Such an is and court of court of the circuit court satisfy deciding appeals. However, in whether the facts may court benefit from the constitutional standard this reasoning upon the circuit court and and draw may upon appeals the circuit court's court of draw 3 Myers, v. see Tomlin analysis, 30 F.3d For a similar 1994). (9th 1241 n.12 Cir. asserts that not all courts use this stan
The State's brief deciding The cases the identification issues. dard of review cites, however, identification issue do not involve the State case, an namely an in-court identification after posed in this the Sixth Amendment. in a that violated See Brief for State at 14 n.1. 3, 17-18, Santiago, See State 206 Wis. 2d 556 N.W.2d *9 advantage. Nevertheless, this court
observational against independently measures the facts a uniform constitutional standard. independent principal
¶ reason for 20. appellate of matters of constitutional fact is to review uniformity making.5 provide decision constitutional appellate applying rule, In constitutional the skeletal provide guidance out the rule and to liti- courts flesh gants, lawyers, appellate trial and courts. parties, conclude, 21. We as did the that independent whether an source exists for an in-court lineup identification made after a an violated right ques- accused's Sixth Amendment counsel is a to tion of constitutional independent fact which we determine appeals,
of the circuit court and court benefiting analyses. from their
I I I
analysis begins
summary
¶ 22. Our
awith
of the
relating
admissibility
an
law
to
in-court identifi-
cation of an accused after
suppressed
in a
is
deprived
because the accused was
lineup.
to counsel at the
parties acknowledge,
agree,
¶ 23. The
and we
controlling
Supreme
United States
Court deci
Wade,
sion
this case is United States v.
identification
to a
defec-
lineup
tive
in violation of an accused's Sixth
right
per
Amendment
to counsel is not
se inadmissible.
constitutionally
Wade,
See
burden of
clear and
after identification
admission of in-court identification
pre-
lineup
not
in a
in which an accused's counsel was
occurred. Two reasons
sent and no waiver of counsel
support
imposing
First,
State:
Wade
this burden on the
"vagaries
identification"
warns ofthe
identification]
[eyewitness
"[t]he
testi-
hazards of such
mony."
Second, is a
Wade,
U.S. at 236-37. burden disregard inherent in identi- the difficulties meaningless the Sixth and would render fication lineup. counsel at a Amendment According Court, to determine to Wade " 'sufficiently identification is dis- whether the in-court tinguishable purged- primary taint,'"
to be including consider factors the fol- court should various (1) lowing: prior opportunity the witness had to (2) activity; alleged criminal the existence observe any discrepancy any pre-lineup description between (3) any description; identifica- and the accused's actual (4) any person prior lineup; to the tion of another prior picture to the identification lineup; of the accused (5) identify prior a alleged failure to the accused on *11 (6) lapse the occasion; the of time between (7) lineup identification; and the facts crime and the concerning lineup. the conduct of the See disclosed Wade, at 241. 388 U.S. applied the to 27. The court has Wade test admissibility
determine the
subsequent
of in-court identifications
lineups
that
the accused's Sixth
to
violated
e.g.,
Harper,
See,
to counsel.
State v.
Amendment
(1973).7
543, 546, 205
1
57 Wis. 2d
N.W.2d
IV.
Applying
factors,
the
the defendant
Wade
argues
constitutionally
lineup
that the
defective
taints
eyewitness's subsequent
in-court
identification.
the
applied
The
has also
the
test in a case in which
court
Wade
by lineup
arrest
followed
a
identifi
the accused's unlawful
was
Walker,
cation and an in-court identification. See State v.
denied,
158, 188-89, 453
Wis. 2d
N.W.2d
cert.
¶ 30. hand, On the other tunity to observe the robber was limited. The entire incident lasted a mere 25 seconds. While a court cannot specify necessary a minimum amount of time to opportunity demonstrate a sufficient observe, length perpetrator of time for observation of the is important.8 money Moreover, as the robber took the register, out of the cash moved back about 10 feet and hid behind a meat slicer while still observing eyewitness, therefore, him. The was not directly facing throughout *12 the robber the entire 25- reviewing second incident. After the surveillance videotape, the circuit court found that the
8
543, 546,
Harper,
See State v.
57 Wis. 2d
¶ has also viewed The court 31. tape videotape, from the difficult to determine and it is looking eyewitness sрent time how much hearing, suppression knife At the face. or the robber's eyewitness acknowledged she concentrated on give robbery. during a She was able knife description Furthermore, in this the knife. detailed eyewitness dangers identifi- inherent in case, the usual may this was a exacerbated because cation have been identification.9 cross-race circumstances, 25 seconds Under these 32. eyewit-
may provided time for the have sufficient not features so that she could the robber's ness to observe independent of the in-court make an lineup. unconstitutional any factor considers dis- The second Wade description pre-lineup
crepancy and the a between eyewitness appearance. The testified accused's actual 9 Doyle, Eyewitness & James M. See Elizabeth F. Loftus (1992) ("It Testimony: Civil and Criminal 97 is well-established difficulty recognizing comparative individ that there exists a own."); a race different from one's Neil Colman ual members of McCabe, Right Lawyer Lineup: Support at a State to a from Psychology, 22 Ind. L. 914 Experimental Rev. Courts and ("Several (1989) eyewitnesses literature on have reviews of the than identifications are less reliable concluded that cross-race race."). suspect are members of the same when the witness iden dangers a discussion of the inherent For cautionary jury desirability using detailed tification fallibility regarding the identifica instruction 376, 383-84, tions, Waites, 462 158 Wis. 2d N.W.2d see State 450, 465, State, (1990); Hampton v. 92 2d 285 N.W.2d Wis. J., (1979)(Abrahamson, concurring); JI — Criminal 141 Wis *13 robbery, gave police that shortly after the she following description of the robber: African-American wearing golfer's cap male, at least six feet tall, a white jacket. description presumably given and tan This eyewitness at a time when the would have retained the sharpest image description of the robber. The offered coloring, no detail about the robber's features, facial age distinguishing build, or other characteristics. The description many could fit African-American men. Although eyewitness
¶ 34. testified that she told Officer Wortock that the robber was at least six eyewitness tall, feel Officer Wortock testified that the merely told him that the robber was taller than she. eyewitness is five feet tall. Thus conflicting and Officer Wortock offered accounts of her description height. of the robber's Testimony eyewitness's
¶ 35. about the recollec- tion of the robber's facial hair varied. The long first testified that she knew the robber had side- burns but was not sure if he beard; had a mustache or any she later testified that she did not notice facial hair on the robber. Officer Wortock first testified that the eyewitness informed him that the robber did not have say facial hair; Wortock then testified that she did not way one or another whether the hair; robber had facial later, still Wortock testified that he did not recall specifically whether he had if asked her the robber had facial hair. The defendant's niece testified that robbery, defendant, on or around the date of the had a goatee and full mustache. Officer Bell saw the defen- days robbery dant four before the and at that time the defendant had full facial hair. eyewitness's descriptions
¶ 36. Thus the significant discrepancy varied, robber and a exists eyewitness's description between the initial of the rob- appearance. The actual the defendant's ber the rob- about statements inconsistent *14 discrepancy the initial between hair, the facial ber's description defendant's actual and the of the robber description together appearance, fur- the minimal with eyewitness, the cast doubt on the nished eyewitness's
ability identification make an in-court to lineup. independent the unconstitutional whether factor considers The third Wade 37. person prior any to the identified other witness the lineup. eyewitness's argues the The defendant lineup step request forward man in the that another argument, prior This how- identification. a constitutes eyewitness testified that she The ever, is untenable. get step so she could man to forward the other asked him as the never identified at him. She better look lineup participating identifica- in a robber. Witnesses carefully encouraged all to examine tion should be participants The identification. ensure an accurate to any identify per- eyewitness other did not that the fact supports the conclusion that son as the robber robbery eyewitness's the robber at observation of identify indepen- to the defendant enable her would lineup. unconstitutional dent of the factor is whether wit- The fourth Wade photo photograph from a the accused's ness identified lineup. array prior factor is The fifth Wade to the identify on to the accused the witness failed whether prior In this in-court identification. to the occasions eyewitness The are interrelated. case, the two faсtors identify photographs she defendant to failed robbery. Ordinarily, day a wit- on the viewed photograph identify an accused from a to ness's failure might only demonstrate after the crime hours of the accused was not in-court witness's illegal lineup. of an However, case, in this identify failure to the defendant's photo significance. is of limited testi- looking photograph fied that looking at a is different from person. Furthermore, at the the circuit court photograph found that the defendant's did not bear a appearance reasonable resemblance to his in the court- misleading enough preclude room and was therefore accurately identifying from him as the robber. provides
¶ 39. The sixth Wade factor that a court impact lapse consider the of the time between the crime longer identification. The the time lineup, between the initial observation and the greater the likelihood that the initial observation at the image crime will have dimmed and that the second *15 lineup play important from the will an in- role at the robbery present court identification. The in the case lineup 3, 1994, occurred on December and the identifi- January cation occurred about five weeks later on period robbery 1995. The five-week between the and lineup arguably long enough the to obscure the eyewitness's memory of her brief encounter with the robbery robber at the time of the and to increase the importance having of her seen the defendant in the lineup.
¶ 40. The seventh Wade factor addresses those despite which, counsel, considerations the absence of concerning lineup. are disclosed the conduct of the lineup may bearing upon conduct of the have a whether lineup the in-court is of the by police case, or tainted it. In this the failed to take a photograph lineup. or a video of the The record con- photographs lineup tains of the men in the but does not photographs Thus, disclose when the were taken. the staging physical only the of we have about information testimony Investigator lineup of comes from eyewitness. Long, Corporal Stratman that enforcement officers testified 41. The law lineup to the defendant in were similar all the men height, age hair. The size, and facial race, of in terms using hair dem- men who had facial State asserts that lineup. The defendant fairness of the onstrates the only lineup using argues staging with men suggested that the robber to the facial hair had facial hair. Although and the defen- both the State's 42. lineup interpretations are reasonable and of the
dant's
lineup
unduly
that the
was not
the circuit court found
suggestive,
mindful of the concerns the United
we are
expressed
Supreme
"the
in Wade about
States
dangers
Court
identification and the
inherent
in
pretrial
suggestibility
in the context of the
inherent
Considering
Wade,
388 U.S.
identification."
dangers
by
Court,
we conclude
described
may
staging
physical
have affected
memory
adding
the robber
the detail
descrip-
present in her initial
hair,
facial
a detail not
"[s]uggestion
Wade,
in
can be
tion. As the Court stated
many
unintentionally
intentionally
subtle
or
created
dangers inhering
eyewit-
ways..
increased]
.and
lineup,
Wade,
in
conclude that
State
not
we
174
by
convincing
strated
clear and
evidence, as Wade
requires,
origin
that the in-court identification had an
"
independent
lineup
'sufficiently
of the
or
distin-
guishable
purged
primary
to be
of the
Wade,
taint.’"
eyewitness's opportunity
¶ 44. The State asks the court to consider another factor in factors, addition to the seven Wade namely certainty making the witness's level of in in-court identification. The in this case said suppression hearing positive at the that she was defendant was the robber and that she would be able to identify lineup him even if he had not been argues she had him seen on the street. The State that a certainty making witness's an in-court identification proper determining is a factor for whether an in-court lineup. identification is of a tainted "certainty" ¶ 45. This factor not is mentioned in Biggers, Wade but is set forth in 188, Neil v. 409 U.S. Biggers, In 409 U.S. at the Court upheld testimony concerning the admission of a show- up by raped a witness had who been sev Biggers promulgated eral months earlier.10 The Court 10A show-up pre-trial, is a proce out-of-court identification suspect dure in which a is viewed a witness or victim of a show-up commonly crime. A occurs within a time short after a crime or under circumstances which would make a impracticable impossible. or *17 trial courts to test for circumstances" "totality of out-of- of reliability pre-trial, the evaluating in
apply identifications. court test circumstances" of "totality 46. The (1) the witness the of opportunity five factors:
includes (2) crime; the time of the criminal at the to view the (3) accuracy of the attention; of degree witness's (4) criminal; the level of description witness's prior at the con- the witness demonstrated certainty of (5) the crime of time between frontation; length and the Biggers Id. at 199-200. Thus confrontation. and the large to a overlaps test "totality of circumstances" in the Wade "indepen- the factors set forth extent with dent test. origin" whether to treat differ about Judges functionally as Biggers
Wade equivalent.11 and tests similarity notwithstanding that We conclude 11 functionally as treating the two tests opinions For 1179, Smith, see, F.2d 1188 e.g., Solomon v. 645 equivalent, (2nd 1981) ("The origin' forth in 'independent set Cir. tests of reliability functionally tests identical to appear to be Wade Solem, v. 728 F.2d Biggers"); Graham articulated in Neil (8th 1984) (McMillian, J., 1533, dissenting), cert. Cir. 1549 (1984) denied, ("concepts 'purged taint' and 842 469 U.S. into, by, superseded origin' have been blended 'independent reliability against suggestive two-step process weighing Judicial Biggers"). The Wisconsin ness articulated certainty as a factor. as to identification Benchbook lists level of Criminal and Traffic CR14-4 Judicial Handbook: Wisconsin distinct, see, e.g., as opinions treating the two tests For (D. Ferrer, 40, 42 Puerto Supp. 842 F. United States v. Batista 1994) to an accused's due (stating Biggers that relates Rico Amendment to coun- rights, rather than the Sixth process (Md. 1984) State, sel); 474 A.2d Webster v. totality circum- origin test and (concluding they functionally equivalent, tests, two are not Biggers "certainty" should not be factor included *18 Wade test. Biggers
¶ 48. The Wade and tests are derived from different constitutional amendments and are purposes. intended to achieve different The Wade test focuses on the Sixth Amendment to counsel at post-indictment lineups exclusionary and on the rem- edy for a constitutional violation of the Sixth Amendment. The Wade test is used to exclude evidence by lineup. tainted an unconstitutional Exclusion of police derivative evidence is intended to deter unlawful judicial preserve integrity. conduct and inquiry Biggers, ¶ 49. The hand, on the other reliability pre-trial evaluates the of a identification pre-trial when it is claimed that the identification was impermissibly suggestive made under circumstances. Biggers certainty suggestive pre- uses a witness's at a procedure reliability trial identification to measure the procedure. Big- of the witness's identification in that gers process is based on due considerations, not on a Wong exception Sixth violation or Sun Amendment poisonous Big- to the fruit of the tree doctrine. Under gers, "totality applied of the circumstances" test is pre-trial to determine whether a out-of-court identifi- cation was unreliable as a matter of law.
¶ 50. The case at bar is a Wade case. The issue is perpetrator not whether a witness's observation of a a crime or an in-court identification of an accused was reliable. The issue is whether a witness's observation of perpetrator of a crime constitutes an source for that witness's in-court an identification of accused. guarantees,
stances test derive from distinct constitutional call distinct). separate for different standards and are primary case is in a Wade concern lineup tainted a subse- whether an unconstitutional quent case, the In a Wade in-court identificаtion. certainty displayed degree in- at an a witness determining is not relevant court independent of a identification is whether the in-court " '[I]t lineup. stated, is a court As the Wade tainted experience has that, once a witness matter of common likely line-up, picked he is not the accused at the out practice go that in on, later (in so back on his word identity may relevant of other the absence issue of evidence) purposes practical be determined for all Wade, 388 U.S. then, the trial.'" there and before 229.12 *19 Considering
¶ evidence, hold that all the we 52. eyewitness's in the case at in-court identification suppressed the State has not because bar should be eye- convincing evidence that clear and shown had identification of the defendant witness's in-court origin," "independent of the is, that that the source an eyewitness's observa- identification was in-court robbery during tion of the robber independent defendant's that violated the of Amendment to counsel. Sixth part Accordingly, ¶ reverse that 53. we admitting appeals the in-court decision of the court of court the cause to the circuit identification and remand proceedings with this not inconsistent for further opinion. & H.A. Ham The Wade quoted Court Glanville Williams Parades, I, Part
melmann, [1963] Crim. L. Rev. Identification 479, 482. By appeals the Court.-The decision of the court of part, is reversed in and the cause is remanded. (dissenting). CROOKS, 54. N. PATRICK J. I dissentbecauseI concludethe Statehas metits burden establishing,by convincingevidence, clearand upon the in-courtidentificationis based observations eyewitnessindependent line-up ofthe ofthe identifica- certainty tion. I further concludethat the eyewitness appropriate is an considerationwhendeter- mining whether the in-court identification is Wade, admissibleunder UnitedStatesv. (1967). 388U.S.218 I. My record, reviewofthe in accordancewith Wade, the factorsset forthin the in-courtidentificationis basedonthe leadsmeto concludethat robbery,independent observationsat the timeofthe line-up identification. ¶ 56. The first Wadefactor considersthe wit- opportunity perpetrator ness's to observethe at the robbery case, sceneofthe crime.In this a well-lit occurredin eyewitness environment, was wear- ing eyeglasses tape her at the time.Thevideo indicates was within a few feet of and directlyfacing register the robber.Thecash wasonthe directly counter betweenthe and the rob- *20 eyewitness away ber; therefore,the did not turn from requestedchange. fact, the robberto retrievethe notime didthe In eyewitness away robber, turn fromthe eventually away even when she backed from him. nothingobstructing eyewitness'sview, Therewas attempt and the robbermade no to concealhis face.
179
only
at the
in the store
individual
was the
The robber
robbery,
is no evidence
and there
time of the
otherwise distracted.
approxi
Although
¶
lаsted
the confrontation
57.
mately twenty
seconds,
have concluded
courts
provided
periods
with a
witnesses
time have
similar
opportunity
States v.
See United
to observe.
sufficient
(fifteen
(7th
1986)
to
Cir.
Goodman,
468,
F.2d
470
797
observation);
twenty
Jarrad,
States v.
United
second
(three
(9th
1985)
to four sec
1451,
Cir.
F.2d
1455
(1985);
observation),
denied,
crepancy between appearance. description In actual and the accused's eyewit- significant in the case, no variance this there is discrepancy statements, there is no between ness's appearance. actual and the defendant's her statements eyewitness initially stated the robber 59. The not notice or sideburns, later testified she did had but signifi- had facial hair. The did not know if the robber light viewed in cance this factor is lessened when *21 tape robbery, In circumstances. the video of the it is apparent not whether the robber did or did not have apparent, facial hair. It is however, that if even robber lengthy. hair, had facial it was neither voluminous nor testimony 60. Officer Wortock's demonstrates significant no description variance in the of the robber's facial hair either. Officer Wortock con- sistently eyewitness indicated him did not tell may whether or not the robber had facial hair. Therе be some confusion initial because Office Wortock's testi- mony suppression hearing seemingly at the indicated that stated the robber did not have facial hair. However, Officer Wortock later clarified his testimony:
Q . . .the case, victim in this indicated that hair, assailant did not have facial correct. ..?
A say She did not way one or the other.
Q your In report. . .it indicates the following: The assailant in this incident did not have any facial hair. Was that you by not told to [eyewitness]?
A She say did not that to me. That my per- sonal observation from the video tape.
Q not, And was it you testify didn't today earlier that you she informed that there was no facial hair on this [sic] assailant?
A gave When she description me a party?
Q Yes. A say She did not party had or had not any facial hair.
(R. 4-5.) (emphasis supplied.) 19 at Furthermore, directly Officer Wortock's failure to recall whether he pro- facial had hair asked the if robber any support that there is for the contention vides no *22 description. variance in her significant
¶ the in There is also no variation 61. height. eyewitness's regarding statements the robber's eyewitness that she described the robber The testified (R. 11.) feet 18 at Officer Wortock as "at least six tall." the as the described robber testified that (R. 12.) vary statements "taller than her." 27 at These eyewitness is are because the somewhat but consistent Thus, taller five five an individual who is than feet tall. Furthermore, six tall. feet could also be at least although feet height actual is not noted the defendant's the record, the there is no evidence that discrepancy the statements create a with defendant's appearance. actual significant Just as there is no variance 62. discrepancy description, the is no between there appearance.
description and the defendant's actual testimony majority compelling finds The indicating had a defendant's niece the defendant goatee full on or about the date of mustache testimony robbery, Bell's that as well as Officer approximately days had facial hair four defendant robbery. testimony prior not date ofthe This does to the discrepancy. evince a findings fact The trial court made no
regarding
appearance
the defendant's actual
on
robbery.
easily
date of
Facial hair is an
modifiable
may may
physical feature,
or
not
and the defendant
robbery.
facial hair
the date of the
The
have had
majority's
on
discrepancy
that
exists
conclusion
testimony assumes as true the defendant's niece's
had facial hair on or
date ofthe
any
defendant
about
robbery.
improper assumption,
is an
as
issues
This
surrounding
impli
inconsistent witness statements
credibility
cate considerations of
and are issues to be
Boyer
resolved
the trier of fact. See
State,
91 Wis.
(1979);Kohlhoff v.
647, 672, 284
2d
N.W.2d 30
State, 85
148, 154,
Wis. 2d
¶ 64. The third Wade factor considers whether any prior the witness identified other individual to the line-up. in this case has not identified anyone other than the defendant as the robber.
¶ 65. The fourth Wade factor considers whether photo array the witness identified the accused from a *23 prior line-up. majority to the As the notes, in this case closely the fourth Wade factor is related to the fifth factor, Wade which considers whether the witness identify prior failed to the accused to the in-court iden- eyewitness identify tification. The did fail to the photo array; defendant from a however, the circuit photo presented court found the to the (R. not a reasonable resemblance of the defendant. 23 51.) length ¶ 66. The sixth Wade factor considers the of time between the date of the crime and the date of line-up identification. I conclude the five-week period eyewitness's did not obscure the recollection. lapse Courts have held that evеn a two- month of time require suppression does not of an in-court identifica- identify tion where the witness does not an individual other than the defendant the interim. See United (9th 1985); Monks, 945, States v. 774 F.2d 957 Cir. (9th Barron, 752, United States v. 1978). 575 F.2d 755 Cir. previously noted, As in this case
183 any identify defen- than the individual other did not dant as the robber. facts factor considers The seventh Wade line-up. relating conduct of to the
disclosed suggestive line-up procedures in this case. not were suspect, defendant had was the The defendant line-up. The additional at the time of facial hair just line-up as hair, facial also had in the men included they approximately race and also the same were age height, It is rea the defendant. size, as same physical features similar individuals with sonable that included, that atten so the defendant were to that of inappropriately defendant, to the drawn not tion was unduly suggestive. procedures See were not and such 1996) (10th Cir. Roberts, v. 74 F.3d Messer ("men possessed size, similarities sufficient shown height, complexion, color, full mus hair coloration, weight receding hairlines, dress and taches, somewhat muster."). unduly pass not It is also constitutional line-up suggestive had facial in the that all individuals description though not did hair, even Schoels, United States facial hair. See include (10th array 1982)(photo of seven 379, 385 Cir. F.2d unduly hair, not facial men, all with noticeable black though eyewitness suggestive criminal described even clean-shaven), In denied, 462 U.S. cert. as surrounding reviewing the facts addition, after line-up proce line-up, determined the the trial court 71.) (R. unduly suggestive. at23 not dures were *24 analysis under the ¶ Wade factors An 68. they me to in this case leads as exist circumstances convincing evidence clear and that there is conclude an has in-court identification that independent line-up
origin apart from the identification.
184
i—i i—i
¶
certainty
69.
I also conclude of a wit-
proper
determining
ness is a
factor to consider in
whether the in-court identification is
aof
line-up
"independеnt
tainted
identification. The
basis"
"totality
test in Wade and the
of circumstances" test in
(1972)
Biggers,
Neal v.
considerations and is
based
the need to
" 'very
irreparable
avoid the
substantial
likelihood of
[eyewitness]
Biggers,
misidentification.'"
409 U.S. at
(quoting
381
States,
Simmons v. United
377,
390 U.S.
(1968)). Although
the Wade test is derived from the
Sixth Amendment
to counsel, the Court's concern
similarly
in Wade was
that of "mistaken identification"
protecting
pre-trial
and
the accused from
procedures replete
dangers."
with "innumerable
Wade,
¶ 71. The Court's concern in Wade was majority argues, deterring police not, as the unlawful preserving judicial integrity. conduct fact, In "[w]e Wade Court noted that do not assume that these police procedures intentionally risks are the result of designed рrejudice an accused. Rather we assume they dangers derive from the inherent suggestibility identification and the inherent in the pretrial context of the Wade, identification." 388 U.S. at 235. assessing eyewitness "[i]t In identification, reliability prima-
is the rily of identification evidence that admissibility." determines Sowders, its Watkins v. 449 U.S. Numerous state and federal *25 certainty is held the level of relevant courts have that reliability. Brathwaite, See v. to a witness's Manson (1977); Barron, 98, 114 575 432 U.S. United States (9th 1978); Figueroa, 752, 755 Cir. State v. F.2d (Conn. 1995); State, Shaw v. 846 S.W.2d A.2d 1993). (Tex. App. the Wade Ct. Because and 482, 484 premised Biggers decisions both on concerns are reliability regarding identification, the the of witness equally certainty Biggers factor is rele- considered analysis. in a Wade vant Sixth Amendment certainty particularly The rele- witness's is expressed the where, here, as it is within context vant At at the time of the crime. the the observations preliminary hearing case, in this the identi- during prosecution's the fied the defendant regarding examination the crime itself. Without eyewitness positively the defen- waiver, the identified change, pointed for dant as the man who asked her the (R. 6-7.) her, her. 18 at Even more knife robbed convincing eyewitness's testimony sup- was at the pression hearing, "positive” was wherein she stated she percent" the defendant and "one hundred certain that (R. 25.) 19 at was the armed robber. hearing
additionally suppression testified at identify the as the she would be able to defendant rob- irrespective street, ber even if she saw him on line-up. (R. 26.) 19 at Undoubtedly, majority argue
¶ 74. would eyewitness's certainty preliminary that hearing at the hearing irreparably suppression "[tjhis line-up Yet, diffi- tainted identification. prevented finding culty has not courts from sufficient certainty certainty comes even when the evidence of place from confrontations that took after invocation suggestive procedures." United States ex rel Kosik v. (7th 1987). Napoli, 1151, 1159 814 F.2d Cir. *26 majority emphasizes
¶ 75. The the unreliable eyewitness nature of identification; howеver, the Wade remedy any test is utilized to such concerns and combat unreliability. inherent It cannot be discounted that eyewitness extremely identification is relevant and valuable to criminal convictions. Therefore, such iden- hastily suppressed. tification evidence should not be As testimony given by Justice Black noted in reference to criminally suppression hearing: a accused at a permitting
The value of the Government to use such is, testimony course, so obvious that it usually is unstated, left but it should not for that reason be ignored. necessary The standard of proof to convict in high, so, a criminal case is quite properly and but for this reason highly probative evidence. . .should lightly not be held inadmissible. (1968) States,
Simmons v. United 390 U.S. (Black, dissenting). J., language
¶ 76. The
oí Wade indicates the factors
proffered
guideline
enumerated were
as a
an all-
—not
inclusive list of factors to be utilized to the exclusion of
any
Wade,
other relevant considerations. Seе
388 U.S.
certainty
at 241. The extent
witness's
would not
dispositive
analysis.
be
in a
Rather,
Wade
it would
merely
a factor to
be
be considered
addition to those
Biggers,
outlined Wade. See
¶ 77. I conclude that a review of the record provides convincing suant to Wade clear and evidence eyewitness's indepen- in-court identification is line-up dent of the identification. The had opportunity robber; sufficient to observe the there was discrepancy eyewitness's description no between the appearance; the actual the defendant's identify any individual as the robber other not
did period time between defendant; the than the other line-up not obscure did crime and line-up procedures were robber; the recollection unduly suggestive. cer- conclude that the I further not appropriate tainty relevant and is a witness determining there is an whether when consideration in-court identification. basis for an respectfully reasons, I dissent. For these 78. that Justice DON- to state I am authorized Justice JON P. WILCOX STEINMETZ and ALD W. join this dissent.