COURT OF APPEALS DECISION DATED AND RELEASED October 2, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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No. 95-2052-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICKY MC MORRIS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Racine County:
DENNIS J. BARRY, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
NETTESHEIM, J. Ricky McMorris is
charged with armed robbery contrary to § 943.32(1) and (2), Stats.
Prior to trial, law enforcement officers conducted a postindictment
lineup at which the victim identified McMorris. However, the lineup was conducted without the knowledge or
presence of McMorris's attorney.
McMorris filed a motion to suppress both the out-of-court lineup
identification and any ensuing in-court identification. The trial court denied the motion. We previously granted McMorris's petition
for leave to appeal the trial court's ruling.
We hold that the
postindictment lineup identification must be suppressed because McMorris's
attorney was not present at the lineup.
We therefore reverse this portion of the trial court's ruling. However, we agree with the court's further
ruling that the victim's in-court identification was not tainted by the lineup
identification. We therefore affirm
this portion of the court's ruling.
FACTS[1]
On December 3, 1994, Patricia Jordan was
working as a cashier at the Pet Dairy Grocery Store in the Town of Mount
Pleasant in Racine County. At
approximately 5:00 p.m., a man entered the store, laid change on the counter
and asked for a quarter. When Jordan
opened the register, the man produced a large knife and directed Jordan to
leave the cash drawer open. The man then removed the cash drawer, took
approximately $50 and exited the store.
Jordan called the police. A
videotape taken by a surveillance camera reveals that the incident lasted
approximately twenty-five seconds.
Mount Pleasant Officer
Jason Wortock responded to the report of the robbery and interviewed
Jordan. Jordan described the robber to
Wortock as an African-American male, approximately six feet tall, wearing a
white golf cap and a brown jacket.
Wortock's testimony is unclear as to whether Jordan told him that the
robber had facial hair. Wortock first
testified that Jordan said that the robber did not have facial hair. Later, he testified that Jordan did not say
one way or the other whether the robber had facial hair. Still later, Wortock testified that he did
not recall asking Jordan whether the robber had facial hair or whether Jordan
had made any description about facial hair.
Jordan's testimony, however, is that she did not notice whether the
robber had facial hair. Jordan also
stated that she was wearing her glasses at the time of the robbery and that the
lighting conditions in the store were bright.
Jordan also told Wortock
that the robber’s knife was a large kitchen knife with a thirteen- to
fourteen-inch single-edged blade and a wooden handle. She said that the knife and the robber's golf cap were the two
things she best remembered.
That same day, the
police displayed six photos to Jordan.
McMorris's photo was included in this array. Jordan did not identify any of the persons depicted in the photo
array.
Later, the case
investigator and another officer viewed the surveillance tape. Based on these viewings, both officers
suspected that McMorris was the robber.
McMorris was charged with the robbery, and Attorney John Campion was
appointed as counsel for McMorris.
The Racine County
District Attorney's Office arranged for a lineup to be held on January 9,
1995. The lineup array consisted of
five African-American males, including McMorris, who were of approximately the
same height, weight and age. All of the
men had facial hair. After first asking
another man in the lineup to step forward, Jordan then identified McMorris as
the robber. Although the district
attorney's office knew that McMorris was represented by Campion, it failed to
inform Campion of the lineup. As a
result, Campion was not present at the lineup.
McMorris filed a motion
to suppress the lineup identification because it was conducted in the absence
of his appointed counsel. Despite the
constitutional violation, the trial court denied the motion to suppress. The court held that suppression was not
appropriate because the police had acted in good faith and the lineup procedure
was not otherwise impermissibly suggestive.
Instead, the court held that McMorris's remedy was for the court to
advise the jury of the constitutional violation.
McMorris also moved to
suppress the victim's in-court identification, claiming that it had been
tainted by the illegal out-of-court lineup and did not stem from an independent
origin.[2] The trial court also denied this
motion. McMorris appeals.
DISCUSSION
The Lineup Identification
McMorris argues that the
postindictment, pretrial lineup conducted in the absence of his appointed
counsel was in violation of his Sixth Amendment right to counsel and his
Fourteenth Amendment right to due process.
Although we “independently review the trial court’s finding of
constitutional facts and independently apply the constitutional principles
involved to the facts as found by the trial court,” we will not reverse unless
the trial court’s evidentiary findings are clearly erroneous. State v. Maday, 179 Wis.2d
346, 353, 507 N.W.2d 365, 369 (Ct. App. 1993).
In this case, however,
none of the trial court's factual findings regarding the lineup identification
are disputed. The question before us is
of constitutional dimension, and it is clear and succinct: may an out-of-court lineup identification be
admitted as evidence when the lineup occurred after the defendant has been
charged and is represented by counsel?
The answer is equally
clear and succinct and it does not support the trial court's ruling. “[A] post-indictment pretrial lineup at
which the accused [is] exhibited to identifying witnesses is a critical stage
of the criminal prosecution; [the] police conduct of such a lineup without
notice to and in the absence of his counsel denies the accused his Sixth (and
Fourteenth) Amendment right to counsel ¼.” Holmes v. State, 59 Wis.2d 488, 500,
208 N.W.2d 815, 821 (1973) (quoting Kirby v. Illinois, 406 U.S.
682, 683 (1972), and citing Gilbert v. California, 388 U.S. 263
(1967), and United States v. Wade, 388 U.S. 218 (1967)). In Gilbert, the Supreme Court
said, “Only a per se exclusionary rule as to such testimony can be an effective
sanction to assure that law enforcement authorities will respect the accused’s
constitutional right to the presence of his counsel at the critical lineup.” Gilbert,
388 U.S. at 273. “[T]he desirability of
deterring the constitutionally objectionable practice must prevail over the
undesirability of excluding relevant evidence.” Id.
No authority supports
the trial court's “good faith exception” to the exclusionary rule fashioned by
the Wade/Gilbert line of cases. The State apparently concedes this point
because it does not directly defend the trial court's ruling on this issue.[3] Nonetheless, we will briefly explain our
disagreement with the trial court's reasoning, and our explanation comes
directly from Wade itself.
Regarding the trial
court's “good faith” analysis, the Wade Court observed that
subtle improper suggestions during pretrial identification can be created intentionally
or unintentionally. Wade,
388 U.S. at 229. Unintentional acts are
routinely taken in good faith. Yet the
Supreme Court brought such acts within the ambit of the exclusionary rule.
The trial court also
decided to admit the lineup identification because the procedure was not unfair
or suggestive. However, this reasoning
overlooks the fact that there are two perspectives from which the fairness of
an identification procedure is viewed:
the prosecution and the defense.
The State has the opportunity to reconstruct the procedure via the
testimony of the officers who conducted the procedure. The defendant has a similar opportunity via
the testimony of trained counsel.
However, the defendant lost that opportunity in this case because his
counsel did not attend the lineup proceeding.
Wade holds that “the accused's inability ¼ to
reconstruct at trial any unfairness that occurred at the lineup may deprive him
of his only opportunity meaningfully to attack the credibility of the witness'
courtroom identification.” Id.
at 231-32. Because “neither witnesses
nor lineup participants are apt to be alert for conditions prejudicial to the
suspect,” the presence of the accused’s counsel is indispensable. Id. at 230.
Thus, the exclusionary
rule fashioned by the United States Supreme Court for a postindictment lineup
conducted without the presence of counsel is a prophylactic rule which does not
rest on any intentional misconduct or bad faith by the authorities. Nor does it turn on whether the lineup was
nonetheless conducted in a nonsuggestive fashion as measured by the State's
evidence. We therefore conclude that
Jordan's lineup identification of McMorris must be suppressed. We reverse the trial court's order to the
contrary.
The In-Court Identification
McMorris also contends
that Jordan’s in-court identification is tainted by the illegal lineup and
should therefore be inadmissible. The
trial court also denied this request.
We will not upset a trial court's historical factual findings unless
they are clearly erroneous. See
State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984). However, the application of constitutional
principles to the facts as found are subject to our independent review. Id.
The law governing an
in-court identification in the face of an illegal lineup was summarized by our
supreme court in Holmes, 59 Wis.2d at 496, 208 N.W.2d at 819:
The
law is clear that an in-court identification must not be the result of an
exploitation of illegality or tainted by a violation of due process of
law. ¼ [T]he [United States] supreme court followed the test
laid down in Wong Sun v. U.S. (1963), 371 U.S. 471, 83 Sup. Ct.
407, 9 L.Ed.2d 441, in determining the admissibility of in-court
identifications following an illegal lineup or illegal confession. The Wong test is simply
whether the evidence is acquired as the result of exploitation of illegality
instead of by means sufficiently distinguishable and independent to be purged
of any primary or prior taint of illegality.
Consequently, although there may be an illegal out-of-court
identification, if the in-court identification can stand independently of such
an out-of-court identification, it is admissible. [Citations omitted; quoted source omitted.]
Before an in-court
identification can be admitted in the face of an illegal out-of-court
identification procedure, the State must establish by clear and convincing
evidence that the in-court identification is based upon observations of the
suspect other than the lineup identification.
Wade, 388 U.S. at 240; see also Holmes, 59
Wis.2d at 496, 208 N.W.2d at 819. In
other words, the in-court identification must come from an independent
origin. Gilbert, 388 U.S.
at 272.
The Wade
Court set out the factors which a court must consider when determining whether
the out-of-court identification impermissibly tainted or influenced the
in-court identification:
[1] the prior opportunity to observe the
alleged criminal act, [2] the existence of any discrepancy between any pre-lineup
description and the defendant’s actual description, [3] any identification
prior to lineup of another person, [4] the identification by picture of the
defendant prior to the lineup, [5] failure to identify the defendant on a prior
occasion, and [6] the lapse of time between the alleged act and the lineup
identification.
Wade, 388
U.S. at 241; Holmes, 59 Wis.2d at 498-99, 208 N.W.2d at 821. We now address the six Wade
factors.[4]
Here, Jordan was able to
provide a description of the robber.
The surveillance video establishes that she had approximately twenty seconds to view the
robber. Her observations were made under
bright lighting conditions and with the aid of her glasses. During this time, the robber's face came
within a couple feet of Jordan's face.
Like her other testimony at the suppression hearing, Jordan's
identification of McMorris at the suppression hearing was certain and
unequivocal.[5] In addition, Jordan has not identified
anyone else as the robber.
Finally, although the
nonsuggestive nature of the lineup procedure is irrelevant to whether the
lineup identification is admissible, the lineup procedure is relevant to
whether that process has tainted Jordan's ability to identify McMorris. See Wade, 388 U.S. at
241 (when the trial court examines the admission of an in-court
identification following an illegal lineup, it is advised to consider any facts
disclosed concerning the conduct of the lineup). Here, as previously noted, the trial court determined that the
lineup procedure was not impermissibly suggestive.
We conclude that the
foregoing factors support the trial court's decision to send the ultimate
question of the reliability of Jordan's in-court identification to the fact
finder.
McMorris cites to other
factors which he contends impugn Jordan's ability to identify him. These include Jordan's failure to identify
McMorris's photograph from the photo array,[6]
Jordan's principal focus on the robber's white hat and knife, and the limited
period of time during which Jordan observed the robber. We disagree that these factors disqualify
Jordan as an identification witness as a matter of law. Rather, we conclude that these factors are
properly for the fact finder when weighing the reliability of Jordan's in-court
identification. In fact, the standard
jury instruction on identification invites the jury to consider these kinds of
factors when performing this task. See
Wis J I—Criminal 141.
McMorris also contends
that Jordan's in-court identification should be suppressed because the record
is murky as to whether the robber had facial hair. However, this uncertainty is due principally to the vagaries of
Wortock's, not Jordan's, recollections on this point. Jordan's testimony was that she did not notice whether the robber
had facial hair and that she so advised Wortock. An identification challenge properly focuses on the identifying
witness's ability to observe the suspect and the description later given. If the witness passes muster on those
considerations, the witness should not be precluded from testifying because the
investigating police officer's recollections of the witness's description are
inconsistent or uncertain.
We conclude that the
trial court properly ruled that Jordan's identification of McMorris stemmed
from an independent origin, not from the illegal lineup procedure. As such, the court properly decided to
submit the reliability of the identification to the fact finder. We affirm this portion of the court's
ruling.
By the Court.—Order
affirmed in part; reversed in part and cause remanded.
Not recommended for
publication in the official reports.
[1] Most of these facts are taken from the trial court's written findings entered after the suppression hearing. Other facts are from the evidence presented at the hearing.
[2] Jordan, in fact, later identified McMorris at the preliminary hearing and the suppression hearing.
[3] Instead, the State simply says that it “will rely on the trial court's explanation to defend the trial court's ruling.”
[4] The trial court's bench ruling and its later
written findings of fact and order do not expressly address these factors item
by item. However, since the parties
argued the applicable factors, we presume the court had these factors in mind
when it made its ruling.
[5] The same is true of Jordan's identification of McMorris at the preliminary hearing conducted on January 24, 1995.