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COURT OF APPEALS DECISION DATED AND RELEASED June 12, 1996 |
NOTICE |
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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. 95-0344-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD C. LEE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: MARY KAY WAGNER-MALLOY, Judge.
Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. Donald C. Lee appeals
pro se from a judgment of conviction of armed robbery and from an order
dismissing his motion for postconviction relief. He argues that his postconviction motion should not have been
dismissed for his inability to serve a copy on the prosecution, that the trial
court lacked personal jurisdiction over him due to violations of the
extradition laws, that an in-court identification at the preliminary hearing
tainted identification evidence at trial and that the evidence is insufficient
to support the conviction. We conclude
that the identification evidence was not tainted and affirm the conviction.
The conviction is for
the armed burglary of a gas station on January 13, 1992. The station attendant picked Lee out from a
photo array. Lee was brought to
Wisconsin from Illinois on a governor's warrant. After sentencing, Lee filed a pro se postconviction motion
and appendix which exceeded 100 pages in length. The State was not served with a copy of that motion and moved for
dismissal on the ground of lack of service.
Lee argues that his
constitutional right to meaningful access to the court was violated when the
trial court dismissed the motion for postconviction relief for Lee's failure to
serve the State. However, we need not
address this claim because the issues raised on appeal are preserved for review
without the necessity of a postconviction motion.[1] Section 974.02(2), Stats., provides that a defendant is not required to file a
postconviction motion in the trial court prior to an appeal "if the
grounds are sufficiency of the evidence or issues previously raised." See State v. Hayes, 167
Wis.2d 423, 426, 481 N.W.2d 699, 700 (Ct. App. 1992).
Lee contends that the
trial court lacked personal jurisdiction over him because of the violation of
extradition laws. We have previously
addressed this contention in Lee's appeal from the denial of his petition for a
writ of habeas corpus, State ex rel. Don Campbell, a/k/a Donald Lee v.
Alan Kehl, Sheriff of Kenosha County, No. 93-0309, unpublished summary
order (Wis. Ct. App. Dec. 29, 1993).
There we addressed Lee's claim that he had been illegally extradited
from Illinois and that his extradition violated his constitutional due process
rights and § 976.03, Stats.,
the Uniform Criminal Extradition Act.
We rejected his claims and affirmed the denial of a writ of habeas
corpus.[2]
We are not required to
again address the merits of Lee's claim that the trial court lacked personal
jurisdiction. Issue preclusion, or
collateral estoppel, limits relitigation of issues that have been litigated in
former proceedings. A.B.C.G.
Enters. v. First Bank Southeast, 184 Wis.2d 465, 473, 515 N.W.2d 904,
907 (1994). For the first action to bar
a second action under claim preclusion, there must be an identity of parties
and an identity of causes of action or claims in the two cases. See DePratt v. West Bend Mut.
Ins. Co., 113 Wis.2d 306, 311, 334 N.W.2d 883, 885 (1983). Whether issue preclusion applies is a
question of law. Heggy v.
Grutzner, 156 Wis.2d 186, 192, 456 N.W.2d 845, 848 (Ct. App.
1990). We conclude that Lee is
collaterally estopped from obtaining a second review of the issue.
We turn to the issue of
whether the identification evidence at trial was tainted. Immediately before the preliminary hearing,
the gas station attendant was invited into the courtroom and asked if he
recognized Lee as Lee, in jail clothes and handcuffs, entered the
courtroom. Lee contends that this
one-on-one "show-up" identification tainted the subsequent in-court
identifications.
Due process is denied
when an in-court identification is admitted which stems from a pretrial police
procedure that is "so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification." State v. Wilson, 179 Wis.2d
660, 682, 508 N.W.2d 44, 52 (Ct. App. 1993) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)), cert. denied, ___ U.S. ___,
115 S. Ct. 100 (1994). On appeal,
a question of law is presented which we consider de novo. Id. at 682, 508 N.W.2d at 52‑53.
We must first determine
whether the one-man "show-up" identification at the start of the
preliminary hearing was impermissibly suggestive. See id. at 682, 508 N.W.2d at 52. We summarily conclude that it was.[3]
We next determine
whether under the totality of the circumstances the in-court identification was
sufficiently reliable to be admitted at trial.
Id. The factors we
consider when determining reliability include the witness' opportunity to
observe the perpetrator at the time of the crime, his degree of attention, the
accuracy of his descriptions, the level of certainty that he demonstrated when
making the identification and the length of time between the crime and the
identification. See Powell
v. State, 86 Wis.2d 51, 65, 271 N.W.2d 610, 617 (1978).
Here, the gas station
attendant was confronted by a man with a gun who reached in front of him to
empty the contents of the cash register.
The robber was in the attendant's line of vision for about thirty
seconds. Nine days after the robbery,
and six months before the preliminary hearing, the attendant picked Lee from a
photo lineup. Lee does not argue on
appeal that the photo lineup was impermissibly suggestive.[4] The photo lineup was impeccable, including
the conversion of colored photos of similar-looking suspects to black and white
photos so as to match Lee's photo. The
police officer indicated that the attendant picked Lee's photo without
hesitation. At the preliminary hearing
the attendant identified Lee, stating, "He didn't have the beard at the
time but that's him."
The witness had made a
strong and unsuggested identification before the impermissibly suggestive
"show-up." We conclude that
the in-court identification was reliable under the totality of the
circumstances.[5]
The final issue is
whether the evidence was sufficient to support the conviction. Lee argues that the attendant's
identification was "less than certain," that the robber was clean
shaven and he had a beard and mustache in January 1992, that the car which was
in his possession and seen in the vicinity of the robbery was inoperable at that
time and that an inculpatory statement given by his brother was recanted. In short, he argues that his version of the
facts requires acquittal.
Lee fails to recognize
that our review of the sufficiency of the evidence is to determine whether the
evidence, viewed most favorably to the State and the conviction, is so
insufficient in probative value and force that it can be said as a matter of
law that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.[6] State v. Ray, 166 Wis.2d 855,
861, 481 N.W.2d 288, 291 (Ct. App. 1992).
Viewing the evidence most favorably to the State, there is credible
evidence to support the jury's finding of guilt.
The gas station
attendant identified Lee as the robber.
Even if the attendant candidly admitted that he could not be positive,
it was a matter for the jury, not a reviewing court, to determine the
credibility of the witness and the weight of his testimony. See State v. Wachsmuth, 166
Wis.2d 1014, 1023, 480 N.W.2d 842, 846 (Ct. App. 1992). The jury viewed a videotape of the robbery
and still pictures made from that tape.
There was also strong circumstantial evidence that a car belonging to
Lee's former girlfriend and left in Lee's possession was in the vicinity of the
robbery. Although there was testimony
that the car was inoperable, that does not render the circumstantial evidence
incredible as a matter of law. We defer
to the jury's function of weighing and sifting conflicting testimony in part
because of the jury's ability to give weight to nonverbal attributes of the
witnesses. See State v.
Wilson, 149 Wis.2d 878, 894, 440 N.W.2d 534, 540 (1989).
The same is true with
regard to the statement given to the police by Lee's brother that Lee said he
had committed an armed robbery in Wisconsin and the police were looking for
him. While Lee's brother recanted this
statement at trial, he did so only after contact with Lee. It was for the jury to determine which
version of the brother's story was the truth.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Lee correctly points out that upon his explanation that he lacked sufficient funds to serve a copy of the motion, the trial court suggested a copy be provided by the clerk of the circuit court. While we do not give countenance to the State's insistence on strict compliance with the procedural requirement for service, particularly in light of Lee's indigency and that it ultimately received a copy of the motion, the State is not attempting to benefit from its conduct by claiming waiver on appeal. The State concedes that the issues presented by the appeal are properly preserved without a postconviction motion.
[3] Little can be said in defense of the officer's conduct of directing the eyewitness to Lee's appearance prior to the commencement of the preliminary hearing. The State does not argue that the procedure was permissible.
[4] Lee only challenges the eyewitness' confidence in selecting Lee's photo from the array. Lee hinges his argument on the witness' comment as he pointed out Lee's photo that "that's the one that looks the most like the man that robbed me." Even if the comment suggests that the witness was not sure, it only bears on reliability and does not render the photo lineup impermissibly suggestive.
[5] In passing, Lee argues that his Sixth Amendment right to counsel was violated because counsel was not present during the "show-up" identification at the start of the preliminary hearing. We will not address arguments inadequately briefed and which lack citation to proper legal authority. State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). Without further development of the argument, we cannot fathom what relief could be afforded in light of the conclusion that the in-court identification was properly admitted.