COURT OF APPEALS DECISION DATED AND FILED March 25, 2008 Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from a judgment and orders of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 FINE, J.
I.
¶2 On
¶3 Before trial, Haas filed a pro se motion to suppress as impermissibly suggestive the security guard’s show-up identification and any subsequent in-court identification. He also requested production of the clothing he was wearing when he was arrested. Haas’s first trial lawyer withdrew and the trial court never ruled on Haas’s motion.
¶4 A few days before Haas’s trial, Haas’s second lawyer also moved for the production of the clothing Haas was wearing when he was arrested. On the first day of the trial, Haas asked whether the clothing was “going to be [t]here.” The State told the trial court that it did not bring the clothing because: (1) it did not plan to use it; and (2) there was no request for it. The trial court then told Haas: “You have an attorney here. We are going to go forward with the trial.”
¶5 The security guard testified at both the preliminary examination and at the trial. During her testimony at both proceedings, she identified Haas as the man whom she had seen cut the wires.
¶6 Haas’s contention that law enforcement improperly destroyed
exculpatory evidence turns on what the security guard said he was wearing when
he allegedly cut the telephone wires, and what he asserts he was wearing when
he was arrested. A police report drafted
by one of the arresting officers described Haas as wearing a “Green Bay Packer
cap/blue jacket w/blue jeans.” (Uppercasing
omitted.) At Haas’s preliminary
examination, the security guard testified that the man she saw cut the wires
wore blue jeans, a black hooded sweatshirt jacket, and a black knit hat. At the trial, she testified that Haas was
wearing a “[b]lack jacket, with a hoodie.
I believe a dark hoodie [and a] skull cap, a dark color. It was like, I think, dark; dark blue,
black.” One of the arresting officers
told the jury that when Haas was arrested he “might have been” wearing a green
and yellow cap, but could not remember if it was a Green Bay Packers cap. The officer also “seem[
¶7 After the trial, Haas’s postconviction lawyer sought
discovery of the clothing Haas was wearing when he was arrested. The postconviction court ordered the clothing
produced, concluding that “the defendant could use such evidence to attack the
eyewitness’s credibility.” In a letter
to the postconviction court and Haas’s lawyer, an assistant district attorney
asserted that, according to Milwaukee County Sheriff’s Department records,
Haas’s clothing, which consisted of “one blue jacket and one multi-color
jacket,” was “disposed of on
¶8 Haas filed a postconviction motion raising issues that, other
than the destruction-of-the-clothing matter, are not material to this appeal. Haas also filed an amended postconviction
motion, again asserting that the on-the-scene show-up violated his rights. See State
v. Dubose, 2005 WI 126, ¶33, 285
¶9 The trial court denied Haas’s postconviction motions, concluding that the show-up identification was necessary because without it the police did not have probable cause to arrest Haas, and that the State did not have a duty to preserve Haas’s clothing.
II.
¶10 The relevant facts are not in dispute, and our review is de novo.
See id., 2005 WI 126, ¶16, 285
A. Show-up.
¶11 Dubose held that:
[E]vidence 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.
Id., 2005 WI 126, ¶¶33, 39,
285 Wis. 2d at 165–166, 172, 699 N.W.2d at 593–594, 596–597 (relying on the
due-process clause in article I, section 8 of the Wisconsin Constitution). “This test requires
the court to determine whether (1) the showup procedure was necessary
under the totality of the circumstances, and, if necessary, (2) that care was
taken to minimize the suggestiveness of the procedure.” State v. Nawrocki, 2008 WI App 23,
¶22, No. 2006AP2502-CR.
¶12 Haas acknowledges that Dubose was decided after his trial,
but argues that it applies to this case because new constitutional rules of
criminal procedure apply retroactively to cases not yet final on appeal.
¶13 Haas claims that the show-up identification was not necessary under the first part of Dubose because the police had sufficient probable cause, absent the show-up identification, to arrest him. We agree.
¶14 “‘Probable cause to arrest refers to that quantum of evidence
which would lead a reasonable police officer to believe that the defendant
probably committed a crime.’”
¶15 The jury heard about the security guard’s on-the-scene
identification of Haas as the man she had seen cut the wires, and the State has
not demonstrated that receipt of this significant piece of evidence was
harmless beyond a reasonable doubt. See State
v. Hale, 2005 WI 7, ¶60, 277
B. Exculpatory Evidence.
¶16 A defendant’s due-process rights are violated if the
police: (1) do not preserve
evidence that is apparently exculpatory, even if they do not act in bad faith;
or (2) act in bad faith by not preserving evidence that is potentially
exculpatory.
¶17 Regarding the first part of the test, Haas argues that the exculpatory value of his clothing became apparent after the security guard testified at the preliminary examination. He points out that the security guard’s description at the preliminary examination of his clothing as a black hooded sweatshirt jacket and a black knit hat conflicted with the police report’s description of a blue jacket and a Green Bay Packers cap. Haas thus claims that the clothing he was wearing when he was arrested was clearly exculpatory because it could have been used at trial to impeach the security guard. We agree.
¶18 The security guard was the sole witness to the crime. Her identification of Haas was a major part
of the State’s case. The only evidence linking
Haas to the attempted burglary was her identification of him and the tools he
had. Given the discrepancy between the
security guard’s testimony and the police report’s description of Haas’s
clothing, the State should have expected it to “play a significant role in [Haas’s]
defense” at trial. Trombetta, 467
¶19 Haas also contends that the second part of the test is met because the police report is not an adequate substitute for his clothing. Again, we agree. The report’s description of Hass’s clothing is cursory and incomplete. It does not indicate either whether the jacket had a hood or the color of the Green Bay Packers hat. Accordingly, Haas’s due-process rights were violated when the police destroyed this evidence. We thus reverse the order denying Haas’s postconviction motion and remand to the trial court for a determination of the appropriate sanction. See id., 467 U.S. at 487 (“when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing … the … evidence”); State v. Harris, 2008 WI 15, ¶105, No. 2006AP882-CR (trial court must exercise its discretion to mitigate the effects of State’s failure to fulfill mandatory discovery obligations).
By the Court.—Judgment vacated, orders reversed, and cause remanded with directions.
Publication in the official reports is not recommended.
[1] The Honorable M. Joseph Donald presided over the trial and entered the judgment of conviction. The Honorable Michael B. Brennan issued the orders denying the postconviction motions.
[2]
“A showup is an out-of-court pretrial identification procedure in which a
suspect is presented singly to a witness for identification purposes.” State v. Dubose, 2005 WI 126, ¶1
n.1, 285
[3]
Haas also claims that the security guard’s preliminary-examination
identification should have been suppressed.
We do not address that issue because there was no request for an
interlocutory appeal and the in-court-identification issue will be resolved on
remand.