PUBLISHED OPINION
Case No.: 94-2136-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY L. KAELIN,
Defendant-Appellant.
Submitted on Briefs: May 10, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 21, 1995
Opinion Filed: June 21, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If "Special", JUDGE: BRUCE E. SCHROEDER
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas
J. Flanagan of William J. Chandek & Associates of Brookfield.
Respondent
ATTORNEYSOn behalf
of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Susan K. Ullman, assistant attorney
general.
|
COURT OF APPEALS DECISION DATED AND RELEASED June 21, 1995 |
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. |
No. 94-2136-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY L. KAELIN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
BRUCE E. SCHROEDER, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
SNYDER, J. Timothy
L. Kaelin appeals from a judgment of conviction for burglary as a repeat
offender. Kaelin contends that
out-of-court identifications made by two witnesses at the scene of the crime
should have been suppressed because they were the result of impermissible
suggestiveness by police. We conclude
that under the totality of the circumstances, the “showup” procedure in this
case was not impermissibly suggestive and therefore we affirm the judgment.
The issues on appeal
arise out of the burglary of the Kenosha V.F.W. Post in the early morning of
December 3, 1993. Upon entering the
V.F.W. for work that morning, custodian Randy Miller immediately noticed that
ceiling tile had been knocked to the floor and that a portable radio was on the
bar. When he went to call the police,
he observed a dark-haired man wearing a blue jacket move around a corner and
out the door. Albert Miller, Randy's
father and also a custodian at the V.F.W., was pulling into the driveway of the
V.F.W. when he observed a dark-haired man wearing a blue jacket and weighing
approximately 160 to 180 pounds run out the front door and across the
street. Neither Randy nor Albert saw
the burglar's face.
Kenosha police responded
to Randy's call and searched the immediate vicinity for the man described by
the Millers. Officer Steven Larson
spotted a man fitting the description two blocks from the V.F.W. and chased him
on foot until he was able to apprehend him.
Larson then arrested the man, who he identified as Kaelin, placed him in
handcuffs and brought him back to the V.F.W. for the Millers to identify. Approximately fifteen to thirty minutes
elapsed from the time police received the burglary call and the time Larson
brought Kaelin back to the V.F.W.
Albert positively identified Kaelin from behind after he requested that
police take Kaelin out of the car and turn him around; Randy identified Kaelin
“by the jacket and his hair.”
Kaelin was later charged
with burglary contrary to § 943.10(1)(a), Stats., possession of burglarious tools contrary to
§ 943.12, Stats., and
resisting arrest contrary to § 946.41(1), Stats., all as a repeater contrary to § 939.62, Stats.
A preliminary hearing was held and the trial court subsequently bound
Kaelin over for trial. Kaelin filed a
motion to suppress both the showup identification and the subsequent in-court
identifications made by Albert and Randy at the preliminary hearing. The trial court denied the motion and Kaelin
pled guilty to the burglary charge.[1]
On appeal, Kaelin renews
his challenge to the showup identifications made by Albert and Randy. At the outset, we note that there is some
confusion in the record regarding the manner in which Albert and Randy
identified Kaelin at the crime scene.
Randy testified at the preliminary hearing that he identified Kaelin
when police brought him back to the V.F.W.
At the suppression hearing, however, Larson testified that he only
showed Kaelin to Albert.[2] Randy did not testify at the suppression
hearing. As a result, the State argues
that Kaelin waived any objection to Randy's identification because he failed to
challenge it at the suppression hearing.[3] We disagree.
It is clear from the
record that Kaelin preserved for appeal the issue of the validity of both
identifications. First, Kaelin's motion
sought to suppress the identification made as a result of the showup or “other
identification of the defendant.”
Second, the affidavit in support of the motion refers to the
identification made by the “witnesses.”
Third, Kaelin's counsel moved to adjourn the suppression hearing for the
express reason that the preliminary hearing transcript was not yet available
and he wanted to use that testimony “to effectively cross examine and point out
inconsistencies ... at the preliminary hearing ... with reference to the
identification.”
While we agree with
Kaelin that he did not waive the right to challenge Randy's identification on
appeal, we must also recognize that we are bound by the suppression hearing
record as it comes to us. See Fiumefreddo
v. McLean, 174 Wis.2d 10, 26, 496 N.W.2d 226, 232 (Ct. App. 1993). To the extent that Kaelin failed to address
the specific facts surrounding Randy's identification at the suppression
hearing, we acknowledge that meaningful review is compromised.
We now turn to the
validity of the showup procedure. A
“showup” is a procedure whereby a lone suspect is presented by police to a
witness or victim of a crime so that the witness or victim may identify the
person as the perpetrator. See State
v. Marshall, 92 Wis.2d 101, 119, 284 N.W.2d 592, 600 (1979). Whether any pretrial identification violates
due process depends on the totality of the circumstances surrounding the
pretrial identification confrontation. Stovall
v. Denno, 388 U.S. 293, 302 (1967).
We apply a two-part test
when determining whether pretrial identification evidence is admissible. See Marshall, 92 Wis.2d
at 117, 284 N.W.2d at 599. First, we
must decide whether the confrontation procedure was characterized by
unnecessary suggestiveness. Id. If so, we must further decide whether the
totality of the circumstances show that the identification was reliable despite
the unnecessary suggestiveness. Id.
The defendant bears the
initial burden of proving that the identification was unnecessarily suggestive. State v. Wolverton, 193 Wis.2d
234, 264, 533 N.W.2d 167, 178 (1995).
This burden is met if it can be shown that the identification procedure
was so impermissibly suggestive as to give rise to a substantial likelihood of
misidentification. See Powell
v. State, 86 Wis.2d 51, 61-62, 271 N.W.2d 610, 615 (1978). If this burden is met, the State has the
burden to demonstrate that the identification was reliable even though the
confrontation was suggestive. Wolverton,
193 Wis.2d at 264, 533 N.W.2d at 178.
Because we need not
inquire into the reliability of Albert's identification if Kaelin failed to
meet this initial burden, see Powell, 86 Wis.2d at 62, 271
N.W.2d at 615, we first address whether the showup used here was impermissibly
suggestive. This is a constitutional
question that we decide without deference to the trial court's
determination. See State
v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984). We conclude that under the totality of the
circumstances the showup was not impermissibly suggestive.
Kaelin concedes, as he
must, that the showup procedure “is not, by such fact alone, rendered either
suggestive or impermissible.” State
v. Isham, 70 Wis.2d 718, 724-25, 235 N.W.2d 506, 509-10 (1975); see
also Wolverton, 193 Wis.2d at 265, 533 N.W.2d at 178 (holding
that showups are not per se impermissibly suggestive). However, he contends that courts generally
give greater scrutiny to a showup than a lineup,[4]
and that the facts when viewed collectively within this strict scrutiny reveal
that the procedure was impermissibly suggestive. Kaelin argues that the following specific facts indicate improper
suggestiveness: (1) the police first
showed him to the Millers while he was sitting in the back of a squad car; (2)
the police took him out of the car and showed him wearing handcuffs; (3) the
Millers identified him in front of each other; and (4) the police brought him
to the scene within thirty minutes of the crime, implying that they believed
Kaelin to be the perpetrator. We find
these arguments unpersuasive; we will address each in turn.
Kaelin first contends
that the fact that he was initially shown to Albert while in the back of a
squad car and then standing while handcuffed renders the process highly
suggestive because it gave the impression that he was considered a suspect and
had just been arrested. For support,
Kaelin cites several cases in which the showup was held to be highly suggestive. For example, Kaelin cites LeBarron v. Burke,
314 F. Supp. 657 (W.D. Wis. 1970), where the fact that the showup
identification occurred at the police station when the defendant was in the
company of a police officer was held to be unnecessarily suggestive.
We fully recognize that
certain showups can be highly suggestive and have been widely condemned in some
cases, such as those cited by Kaelin involving postarrest custodial showups
performed at the police station in lieu of a lineup. However, as our supreme court has noted, a crime scene confrontation,
proximate in time and place to the commission of the crime, “promote[s]
fairness, by assuring reliability” because the witness's or victim's memory is
fresh.[5] Isham, 70 Wis.2d at 724, 235
N.W.2d at 509-10 (quoted source omitted). Further, the showup may be a preferred procedure because if no
identification is made, the suspect may be released and the police can continue
their investigation. Id.
at 725, 235 N.W.2d at 510.
We cannot conclude that
the fact that Kaelin was initially shown in the back of the squad car or shown
wearing handcuffs renders the showup unnecessarily unreasonable. A showup by its very nature suggests that
the police believe they have caught the perpetrator. See id. at 725-26, 235 N.W.2d at
510-11. As our supreme court recently
held:
The mere fact that a suspect was sitting
in a police car is insufficient to demonstrate that the showup was “so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” To hold
otherwise would be tantamount to holding that all showups are impermissibly
suggestive, which would run counter to our prior decisions stating that showups
are not per se impermissibly suggestive.
Wolverton, 193
Wis.2d at 265, 533 N.W.2d at 178 (quoted source and citation omitted).
Regarding the use of
handcuffs, we note that there is no evidence in the record to support Kaelin's
assertion that he was shown wearing handcuffs or that the Millers saw the handcuffs.[6] Even if he was, we do not conclude that the
use of handcuffs or other indicia of custody, absent other suggestive factors,
renders a showup invalid where it is necessary for the prompt and orderly
presentation of the suspect, consistent with the protection of the officers and
witnesses. See United
States v. Kessler, 692 F.2d 584, 586 (9th Cir. 1982). Here, Kaelin had previously displayed his
willingness to flee from police, thereby providing ample justification for the
handcuffs.
Kaelin next argues that
Albert only described the burglar's gender, hair, jacket color and general
physique, and could only identify Kaelin when his back was turned without
seeing his face. The facts relied on by
Kaelin in this argument are more properly directed toward whether Albert's
identification was reliable. However,
we need not address the reliability prong of the test if the showup procedure
was not impermissibly suggestive. Powell,
86 Wis.2d at 62, 271 N.W.2d at 615.
Kaelin also argues that
the showup identifications at the crime scene were impermissibly suggestive
because both Albert and Randy identified him in front of each other. While we agree with Kaelin that such an argument
might have force under certain circumstances, on the record before us it is
purely speculative. The record simply
does not indicate whether the Millers identified Kaelin in front of each other,
and, as we noted at the outset, we cannot speculate as to what the facts might
actually be.[7]
Last, Kaelin argues that
the short amount of time which elapsed between the crime and when police
brought Kaelin back to be identified made it obvious to the Millers that the
suspect had just been picked up in the area and unfairly implied that the
police believed Kaelin to be the perpetrator.
This factor does not weigh in favor of suggestiveness. Rather, as we previously noted, the short
time period makes the identification inherently more reliable. Isham, 70 Wis.2d at 724, 235
N.W.2d at 509‑10.
Based upon our review of
the record before us, we see nothing that would indicate that the police
encouraged the identification or did anything to increase the suggestiveness of
the showup procedure. The showup occurred
within thirty minutes after the burglary, while Albert's recollection was
fresh. The police said nothing to
Albert to suggest that the person to be viewed was the perpetrator or to
encourage the identification.
Accordingly, we conclude that Kaelin failed to carry his burden of
proving that the showup procedure in this instance was impermissibly suggestive
under the totality of the circumstances.
Consequently, the trial court properly refused to suppress the
identifications.
By the Court.—Judgment
affirmed.
[2]
Larson testified in relevant part as follows:
Q.And did you show [Kaelin] to
[Albert] Miller?
A.Yes, I did.
....
Q.Did you show him to anybody
else?
A.No, I did not.
[3] The State also argues that Kaelin is precluded from challenging the identification at the preliminary hearing based on his subsequent guilty plea. See State v. Webb, 160 Wis.2d 622, 628, 467 N.W.2d 108, 110, cert. denied, 502 U.S. 889 (1991). It is clear, however, that Kaelin claims no error with respect to the preliminary hearing.
[4] See, e.g., Rodriguez v. Young, 708 F. Supp. 971, 978 (E.D. Wis. 1989), aff'd, 906 F.2d 1153 (7th Cir. 1990), cert. denied, 498 U.S. 1035 (1991).
[5] We also note that identifications based on showups have repeatedly been held to be constitutionally permissible by many courts when conducted in a fair manner promptly after a crime. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 7.4(f) (1984).
[6] We note here that our supreme court has previously held that the fact that a suspect is shown wearing handcuffs alone may not render the identification procedure impermissibly suggestive where the witness did not see the handcuffs. State v. DiMaggio, 49 Wis.2d 565, 586‑87, 182 N.W.2d 466, 478-79, cert. denied, 404 U.S. 838 (1971).
[7] Kaelin argues in his reply brief that Randy's testimony indicates that he identified Kaelin at the same time as Albert's identification. Randy testified that the police “brought the gentleman back in the one car, and I just identified him by the jacket and his hair.” Considering this testimony in conjunction with Larson's testimony that Larson only showed Kaelin to Albert, an equally compelling inference from Randy's testimony is that the Millers did not simultaneously identify Kaelin.