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2004AP2936-CR(D) |
No.
¶19 BROWN, J. (dissenting). I disagree with the majority opinion for several reasons. First, I think it is essential that we establish what this case is about. This case regards the admissibility of an in-court identification following a pretrial encounter that did not result from government action. Thus, this case is different from those where the pretrial identification results from either a police or prosecution procedure such as a showup or a lineup or photo array. In shorthand, this is what the law calls an “accidental confrontation” or an unplanned or “spontaneous identification.” See generally Lynn M. Talutis, Annotation, Admissibility of In-Court Identification as Affected by Pretrial Encounter That Was Not Result of Action by Police, Prosecutors, and the Like, 86 A.L.R.5th 463, § 14 (2001).
¶20 I understand the central position of the majority to be as follows: Other jurisdictions are divided about whether accidental identifications may be deemed inadmissible as a matter of law. Most courts adhere to the proposition that, without government involvement, there is no “suggestive procedure” used to obtain an identification; since there is no “procedure,” there can be no state-sponsored manipulation which may affect the reliability of the identification. Thus, the law does not need the circuit court to act as “gatekeeper” on the question of manipulation prior to testimony before the trier of fact. Rather, it is for the trier of fact, usually a jury, to assess the reliability of the spontaneous identification. A minority of courts have held that police conduct is not the basic purpose for excluding identification evidence. Rather, it is the likelihood of misidentification that violates a defendant’s right to due process. Therefore, circuit courts possess gatekeeper responsibility to assess the reliability of the spontaneous identification, just as they have similar responsibility with regard to state-sponsored identification procedures. The majority concludes that, in State v. Dubose, 2005 WI 126, ___ Wis. 2d ___, 699 N.W.2d 582, our supreme court sided with the minority view.
¶21 I take issue with the majority’s expansive interpretation of Dubose. I read Dubose as being limited to the context of pretrial showups, thus leaving prevailing rules intact with respect to other pretrial encounters. One of those prevailing rules, not even acknowledged by the majority, is the rule announced in State v. Marshall, 92 Wis. 2d 101, 117-18, 284 N.W.2d 592 (1979), abrogated on other grounds by State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981), superceded in part by statute, 1995 Wis. Act 440. In Marshall, our supreme court first reiterated the two-part test that existed at the time to determine admissibility of identification evidence under federal due process standards. First, the courts were to decide whether the confrontation procedure was unnecessarily suggestive. Marshall, 92 Wis. 2d at 117. If so, then they were to turn to whether the evidence was nonetheless reliable. Id. Only when the pretrial encounter was both unnecessarily suggestive and unreliable did the court exclude the evidence. Id.
¶22 Of particular importance to this case, the Marshall court then made clear that when the government has not deliberately employed a suggestive technique in order to obtain an identification, the two-part test is inapplicable. The court stated:
Before this [two-part] analysis is applied … it must first be determined whether the confrontation was deliberately contrived by the police for purposes of obtaining an eyewitness identification of the defendant. [Stovall v. Denno, 388 U.S. 293 (1967)], [Neil v. Biggers, 409 U.S. 188 (1972)] and [Manson v. Brathwaite, 432 U.S. 98 (1977)] … all involved planned confrontations between a suspect and a supposed witness to a crime orchestrated by the police for the sole purpose of having the witness identify the suspect as the perpetrator of that crime…. Where the confrontation is not part of a police procedure directed toward obtaining additional evidence, but occurs as a result of mere chance or for some other reason not related to the identification of the defendant, the rule announced in those cases does not apply.
Marshall, 92 Wis. 2d at 117-18 (emphasis added). By definition, the State does not design or “deliberately contrive” accidental and unplanned confrontations. Thus, when faced with an allegedly suggestive encounter between an identification witness and the defendant, Marshall requires, as a condition precedent, that we first determine whether the relevant actor was a government actor. Marshall cited Jones v. State, 63 Wis. 2d 97, 216 N.W.2d 224 (1974), and State v. Brown, 50 Wis. 2d 565, 185 N.W.2d 323 (1971), overruled on other grounds by State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990), as examples of cases in which, although the circumstances were suggestive, the court nonetheless upheld the use of identification testimony derived from an unplanned confrontation.[7] Marshall, 92 Wis. 2d at 118.
¶23 In my view, Marshall controls this case and indeed is factually similar. In that case, a neighbor gave a man directions to the victim’s apartment and later heard an argument and gunshots coming from that direction. Id. at 108-09. The victim had been murdered. Id. Although the neighbor was unable to pick out the man to whom he gave directions from a photo array, the State still considered him to be an important witness and subpoenaed him to testify at Marshall’s trial. Id. at 109, 118. Before the case was called, the neighbor observed the man to whom he had given directions. Id. at 119. The man was one of several seated in the courtroom and was sitting with a woman roughly three rows ahead of him. Id. Nobody had asked the neighbor to make an identification or suggested that the man was the defendant. Id. The neighbor summoned a detective into the courthouse hallway and told him that he recognized the man who had come to his door on the night of the murder. Id. The supreme court held that the use of the pretrial identification was admissible because it was unplanned and “was as much a surprise to the State as it was to the defendant.” Id. at 118.
¶24 Here too, the witness, Stuller, appeared pursuant to a subpoena to testify about matters other than the defendant’s identity. The record does not reveal that anybody asked Stuller to identify Hibl. Nor is there any evidence that either the police or the assistant district attorney suggested that Hibl was the defendant. Rather, Stuller spontaneously identified Hibl among several people he saw in the hallway. Of particular importance, the trial court found that “there is no evidence that the police or District Attorney’s office intentionally or unintentionally suggested the identification of the Defendant to Mr. Stuller.” Indeed, the circumstances surrounding Stuller’s identification were, if anything, probably less suggestive than the identification made in Marshall because there, the neighbor had seen Marshall’s face in the photo array at some point before. Here, however, nothing suggests that Stuller had ever seen Hibl’s face anywhere prior to the trial date—except perhaps in the white van he observed on the day of the accident.
¶25 We are bound by prior decisions of the supreme court unless or until those prior decisions are overruled by that court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). The Dubose holding in no way overruled Marshall. In fact, Marshall is never mentioned in Dubose.
¶26 The Dubose opinion must be limited to “showups.” Reading the opinion, it is quite evident that the Dubose majority disapproved of the widespread use of state-sponsored showups because of their “inherent unreliability” and set out to do something about it. Basically, the court held that the State may not use a showup as a procedure for obtaining an identification of a defendant if there are other, fairer means available to obtain the identification. In pertinent part, the Dubose majority wrote:
[W]e now adopt a different test in Wisconsin regarding the admissibility of showup identifications. We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification.
Dubose, 699 N.W.2d 582, ¶33 (emphases added; footnote omitted). Thus, with respect to showups, the court changed the test in state-sponsored identification procedures. The Dubose test is limited, by its very words, to showups.
¶27 Indeed, the rationale Dubose gave for the newly announced rule in showup cases further supports the notion that it left Marshall intact. It stated that its strict necessity requirement helps “ensure that the police would take precautions when considering the use of a showup,” a procedure the court deemed “inherently suggestive.” Dubose, 699 N.W.2d 582, ¶¶32-33 (emphasis added). Both parts of that rationale are inapposite to unplanned encounters. First, it would be absurd to announce a categorical rule that accidental encounters are “inherently suggestive.” Second, I do not see how the courts could reasonably expect the State to guard against unplanned encounters. Even if the courts were to impose such a duty with respect to only unplanned confrontations factually similar to the one here, I cannot envision any logical stopping point to the rule. I can think of no standard that logically distinguishes among encounters in a courtroom or courthouse hallway and those that occur outside the courthouse, in a donut shop across the street from the courthouse, or at an intersection just blocks away from the courthouse. I simply cannot believe that Dubose provides authority for courts to prohibit identifications made based on fortuity.
¶28 Although the majority appears to acknowledge in one breath that the Dubose analysis does not apply, see majority op. ¶12, in the next it relies on Dubose as authority for allowing courts to independently assess the reliability of even unplanned encounters. I acknowledge it to be true that the Dubose majority opinion did discuss the extensive studies conducted on the issue of identification evidence and did comment how the research supports the conclusion that eyewitness identification is now the greatest source of wrongful convictions in the United States and is responsible for more wrongful convictions than all other causes combined. See Dubose, 699 N.W.2d 582, ¶30. But it is unwarranted for the majority in this case to make the leap that the Dubose court was implementing a new rule allowing trial courts to exercise gatekeeper responsibility with regard to all identifications. One need only look at the Dubose court’s language to determine that this is not the case. The Dubose court, in referring to the recent studies, said that “[i]n light of such evidence,” it was changing its approach in the area of “suggestive procedures.” See id., ¶31 (citation omitted). To read Dubose to say anything more than that is grave error.
¶29 This point brings me to my next complaint about the majority opinion. The majority appears to assert, either as an alternative argument or as a means to buttress its Dubose interpretation—I am not sure which—that this case is merely a review of the circuit court’s exercise of discretion in deciding not to admit this identification evidence. The majority seemingly claims that, under Wis. Stat. § 901.04, the trial court in this case and, by extension, any circuit court in this state, has the authority to keep evidence out if it deems the evidence to be unreliable. Therefore, even if this is not a police procedure case, since the circuit court in this case relied on the facts of record and gave a reasoned explanation for why it believed the spontaneous identification to be impermissibly suggestive, the majority feels that we must defer to this judgment and affirm. In my view, this is a serious misunderstanding of the law.
¶30 First, I need to state the obvious. The circuit court kept the evidence out because it thought that the spontaneous encounter was “impermissibly suggestive.” As I have already explained, the only time a court considers whether an identification was “impermissibly suggestive” is if the suggestiveness was brought about by state action. That is what Marshall holds. A court does not validly exercise discretion based on a misunderstanding of the law and that is what has occurred here. As the court in Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986), stated, if the procedures are not impermissibly suggestive, independent reliability is not a constitutionally required condition of admissibility and the reliability of the identification is simply a question for the jury. The circuit court thus had no business deciding this case under the rubric of an “impermissibly suggestive” procedure.
¶31 Second, what the majority fails to understand is that the usual role of the circuit court is to act as only a limited gatekeeper with regard to admissibility issues. Only when due process concerns come into play has our jurisprudence given circuit courts a greater gatekeeping function. As we wrote in State v. Peters, 192 Wis. 2d 674, 689, 534 N.W.2d 867 (Ct. App. 1995), the role of trial judges is “oblique.” Certainly, evidence must be relevant to be admissible. And just as certainly, someone must have the job of deciding whether the evidence is admissible. This is the job of the circuit court. The circuit court must determine under Wis. Stat. § 904.01 only whether there is “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. (emphasis added). This is an extremely low threshold. If relevant, the circuit court still has the authority to exclude the evidence for other reasons, including, to name a few, statutory considerations such as hearsay, the superfluous nature of the evidence, waste of judicial time and resources, or the court’s determination that the evidence is inherently improbable or that its probative value is outweighed by its prejudice to the defendant. See Peters, 192 Wis. 2d at 689. Once these considerations have been analyzed by the circuit court, the limited gatekeeper role is finished. As Professor Blinka has stated, “If the evidence has any tendency to prove (or disprove) a consequential proposition, it should be admitted.” Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 401.102 (2d ed. 2001). The weight of such evidence is for the trier of fact. See id.
¶32 But there are certain areas of the law where our supreme court has given circuit courts more responsibility. One such area is where identification was made pursuant to a specified police procedure. State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), abrogated by Dubose, 699 N.W.2d 582 (new test applicable to showup procedures), is a case in point. There, our supreme court recognized that certain police identification procedures might be orchestrated or manipulated by the State. See Wolverton, 193 Wis. 2d at 264. If such manipulation and orchestration by the State is shown to be present, it may seriously affect the credibility of the identification. To test the state procedure, the court directed circuit courts to exercise the power to assess (1) the witness’ opportunity to view the criminal at the time of the offense, (2) the degree of attention the witness paid, (3) the accuracy of prior descriptions, (4) the time elapsed between the crime and the confrontation, and (5) the level of certainty demonstrated at the confrontation. Id. at 264-65. In sum, the supreme court expressly authorized greater gatekeeping authority in this area.
¶33 It is my view that because Marshall does not employ this kind of reliability test in the context of an unplanned encounter, the State need only meet the very low threshold test for reliability that Wis. Stat. § 904.01 requires all types of evidence to meet. Nothing in the circuit court’s analysis or the facts convinces me that Stuller’s identification of Hibl had no tendency whatsoever to support the proposition that Stuller recognized Hibl as the individual who drove the van on the day of the accident. What the circuit court’s opinion really does is call into question any identification made in the halls of our courthouses, no matter how spontaneous and free from police or prosecutorial suggestion it may be. I cannot abide by this result and dissent.[8]
