COURT OF APPEALS DECISION DATED AND RELEASED March 4, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 96-0544-CR; 96-0545-CR
& 96-0546-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Abdullah Refeeq Beyah,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER CURIAM. Abdullah Refeeq Beyah appeals from
judgments entered after the trial court found him guilty of multiple counts of
armed robbery, attempted armed robbery and conspiracy to commit armed robbery
as party to a crime, contrary to §§ 943.32(1)(a)&(b)&(2),
939.641(2), 939.31, 939.05, and 939.32, Stats. Beyah raises two issues: (1) whether the trial court erred in
denying his motions to suppress his confessions; and (2) whether the
lineup was impermissibly suggestive.
Because the trial court did not err in denying Beyah's suppression
motions and because the lineup was not impermissibly suggestive, we affirm.
I. BACKGROUND
On June 17, 1987, at
9:30 p.m., two women observed a suspiciously parked car in an alley adjacent to
Farrell's Shop Rite store in Wauwatosa.
They noted the license plate number, BKN 622. While in the Farrell's store, the two women saw a man who had
been in/near the suspicious car enter the store and rob the cashier. The robber took $864.98 from the cashier and
used a .22 or .25 caliber handgun.
After the robbery,
police were advised to look for the suspicious auto that the women had
observed. Officer Randall Burnett
spotted the car with the license plate BKN 622, and pulled the car over. Officer Wayne Harris arrived to assist. Beyah was the passenger in the car. The police searched Beyah and found $864.98
in his pockets and a .22 caliber handgun in his waistband. Beyah was transported to the Wauwatosa
Police Department where he was interviewed by Detective William Gehrking at
approximately 10 p.m.
Gehrking testified at
the suppression hearing, indicating that Officer Harris was present for the
start of the interview, but after that Harris was “coming and going.” Gehrking said that Beyah appeared relatively
calm and collected. Gehrking advised
Beyah of his Miranda rights, which Beyah waived. Beyah told Gehrking that he wanted to talk
about a lot of things in addition to the Farrell's crime. Gehrking testified that no one threatened or
touched Beyah and there was no hint of coercion.
Beyah admitted robbing
Farrell's and also confessed to a robbery of the Brewery Credit Union in 1986,
several robberies in New Orleans, and several robberies in the Milwaukee
area. The interview ended and Beyah signed
a written statement at 1 a.m.
Detective John Brockel
of the Wauwatosa Police Department also testified at the suppression
hearing. Brockel re-interviewed Beyah
the following morning (June 18th) at 8 a.m.
Brockel testified that Beyah was friendly and cooperative and not
coerced in any way.
Beyah, however, offered
conflicting testimony at the suppression hearing. He said that Harris threatened him and beat him up and the only
reason he confessed was because he wanted to avoid another beating. The trial court made a specific finding that
Beyah's testimony was not credible. As
a result, the trial court concluded that the confession was not coerced and
denied Beyah's motion to suppress.
Beyah also moved to
suppress the statements he made to Milwaukee police officers. At that suppression hearing, Milwaukee
Police Detective Robert Simons testified that he questioned Beyah at about 2
a.m. on June 18, 1987, at the Wauwatosa Police Department. Simons advised Beyah of his rights and he
waived them. Beyah admitted to
committing the Brewery Credit Union armed robbery as well as an armed robbery
at Krueger Bakery in Milwaukee. Simons
said Beyah was not coerced in any manner and was not deprived of food, water,
or restroom facilities.
Milwaukee Police
Detective Kenneth McHenry interviewed Beyah on June 18, 1987, after he was
transferred to the Milwaukee Police Department. McHenry testified that Beyah was advised of his rights and waived
them. Beyah talked with McHenry about
his involvement in an attempted armed robbery of a Sentry Food Store. McHenry said there was no coercive conduct.
Beyah testified that the
Milwaukee police officers did not mistreat him in any way. Beyah theorized, nonetheless, that Harris's
earlier mistreatment also polluted his confessions to the Milwaukee
officers. The trial court again ruled
that Beyah had not confessed under coercion and denied his motion to suppress
the confessions given to the Milwaukee officers.
Beyah also claimed that
the lineup was impermissibly suggestive because he had certain characteristics
that made him stand out: he had the
lightest skin of the lineup participants, he was the oldest, had a smaller
build than the others and he had different facial hair. The trial court ruled that the lineup was
not impermissibly suggestive.
Following the trial
court's denial of Beyah's suppression motions, Beyah waived his right to a jury
trial. The trial court found him
guilty. He now appeals.
II. DISCUSSION
A. Coerced
Confession.
Beyah first claims that
the police coerced him into giving incriminating statements and confessing to
the crimes charged. The standard of
review on this issue involves a mixed question of fact and law. State v. Owens, 148
Wis.2d 922, 926, 436 N.W.2d 869, 871 (1989).
We will not overturn findings of evidentiary or historical facts unless
they are clearly erroneous. Id. In addition, credibility determinations are
left to the trier of fact to decide. Norwood
v. State, 74 Wis.2d 343, 363-64, 246 N.W.2d 801, 812 (1976), cert.
denied, 430 U.S. 949 (1977). The
ultimate determination of whether the confession was voluntary, however, is a
legal one that we review independently.
Owens, 148 Wis.2d at 926-27, 436 N.W.2d at 871.
To demonstrate the
voluntary nature of the defendant's statement, the state must show, by the
greater weight of the credible evidence, that the defendant was willing to give
the statement and that the statement was not the result of duress, threats,
coercion, or promises. State v.
Lee, 175 Wis.2d 348, 360, 362-65, 499 N.W.2d 250, 255, 256-57 (Ct.
App. 1993). Determination of whether a
statement is voluntary requires a balancing of the personal characteristics of
the defendant against the coercive or improper police pressures. State v. Pheil,
152 Wis.2d 523, 535, 449 N.W.2d 858, 863 (Ct. App. 1989). The balancing need not be done, however,
“unless there is some improper or coercive conduct by the police.” Id., see Colorado
v. Connelly, 479 U.S. 157, 164-67 (1986) (“coercive police activity is
a necessary predicate to the finding that a confession is not ‘voluntary'”); State
v. Clappes, 136 Wis.2d 222, 235-36, 401 N.W.2d 759, 765 (1987).
The only evidence in the
record supporting coercive conduct by the police is Beyah's testimony. The trial court, however, found that Beyah's
testimony was not credible. Beyah
claims that this finding was clearly erroneous. He cites Hill v. State, 91 Wis.2d 315, 319-21,
283 N.W.2d 585, 586-88 (Ct. App. 1978) for the proposition that absent any
testimony to rebut Beyah's claim, the trial court is bound to accept Beyah's
testimony. We do not agree.
As noted earlier, the
trial court in this case was the arbiter of credibility. It had the benefit of observing Beyah's
demeanor while he testified. There is
nothing in the record that renders the trial court's finding clearly
erroneous. Hill does not
require the trial court to accept Beyah's testimony in the absence of any
rebuttal testimony. Hill
involved a very different situation because in Hill the
unrebutted testimony came from a prosecutor, whose testimony was ruled
credible. Id. In the instant case, Beyah's unrebutted
testimony was found to be incredible.
Accordingly, the fact finder was free to reject Beyah's claims of
coercion. See State v.
Fry, 131 Wis.2d 153, 182-83, 388 N.W.2d 565, 578 (fact finder may
reject defendant's unrebutted testimony simply on the basis that he has
self-interest in outcome), cert. denied, 479 U.S. 989 (1986).
Therefore, we conclude
that the trial court did not err in denying Beyah's motion to suppress his
confession to the Wauwatosa police officers.
Likewise, because we have concluded that no coercion existed with
respect to his initial confession, it logically follows that no coercion
existed with respect to his subsequent confession. This is true because Beyah's theory to suppress the confession to
the Milwaukee police officers relied entirely on the actions of the Wauwatosa
police officers.
The trial court
determined that Beyah's testimony was not credible. All of the other evidence in the record demonstrates that the
police did not engage in any coercive activity. Accordingly, we conclude that Beyah's confessions were given
voluntarily.
B. Impermissibly
Suggestive Lineup.
Beyah also claims that
the lineup evidence should have been suppressed because it was impermissibly
suggestive. Specifically, he argues
that he had the lightest skin of all the lineup participants, was significantly
older, was significantly smaller in stature and had unique facial hair. The trial court rejected Beyah's claim.
Resolution of whether an
identification procedure denied a defendant due-process is a question of law,
subject to de novo review, see Powell v. State,
86 Wis.2d 51, 62-68, 271 N.W.2d 610, 615-18 (1978), although the trial
court's findings will be accepted as true unless clearly erroneous,
§ 805.17(2), Stats.
A defendant is denied
due process when identification evidence admitted at trial stems from a
pretrial police procedure that is “so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable misidentification.” Simmons v. United States,
390 U.S. 377, 384 (1968). The defendant
bears the initial burden of showing that the state-sponsored identification
procedure was impermissibly suggestive.
Powell, 86 Wis.2d at 65, 271 N.W.2d at 617. If impermissible suggestiveness is found in
the identification procedure, the burden shifts to the state to show that,
despite the infirmity, under the totality of the circumstances, the
identification nevertheless was sufficiently reliable to be admitted at
trial. Id.,
86 Wis.2d at 65-66, 271 N.W.2d 617.
In this case, Beyah
claims that the lineup was impermissibly suggestive because his physical
characteristics were dissimilar to the other participants in the lineup. We have reviewed the lineup photo and are
not convinced that the lineup was so impermissibly suggestive so as to give
rise to a “very substantial likelihood of irreparable misidentification.” Beyah's specific complaints are without merit. He claims that he has the lightest skin of
all of the participants. Although this
appears to be true, it is not so much lighter than the other participants as to
render the lineup impermissibly suggestive.
This same conclusion holds true with respect to Beyah's other complaints
regarding age, stature and facial hair.
All of the lineup participants appear to be around the same age and all
of the participants appear to be relatively close in stature. Moreover, at least three of the participants
have facial hair.
Controlling law
indicates that a lineup need only be reasonably fair. Powell, 86 Wis.2d at 67, 271 N.W.2d 618. It is not necessary for the police to find
participants who are all identical twins to the defendant. Id. Because we have concluded that the lineup was not impermissibly
suggestive, we need not engage in the second prong of the standard—considering
whether under the totality of the circumstances, the identification procedure
was sufficiently reliable. Id.,
86 Wis.2d at 65-66, 271 N.W.2d 617.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.