Jones v. State of Wis., 77-1104

• Decision Date: 20 September 1977
• Docket Number: No. 77-1104,77-1104
• Citation: 562 F.2d 440
• Parties: James E. JONES, Petitioner-Appellant, v. STATE OF WISCONSIN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 440

562 F.2d 440

James E. JONES, Petitioner-Appellant, v. STATE OF WISCONSIN, Respondent-Appellee.

No. 77-1104.

United States Court of Appeals Seventh Circuit.

Argued June 6, 1977.

Decided Sept. 20, 1977.

Charlene R. Bohl, Steven D. Phillips, law student, Madison, Wis., for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., John M. Schmolesky, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and DECKER, District Judge. ^*

DECKER, District Judge.

I.

This action was brought by petitioner-appellant, James E. Jones, to obtain a writ of habeas corpus. He contends that under Wisconsin law his plea of guilty must be vacated because it was entered after an erroneous ruling of the Wisconsin trial court admitting the in-court identifications of the appellant by two eye-witnesses to the crime. Jones argues that these identifications were tainted by previous improper and highly suggestive identification procedures.

While the trial judge found that these earlier identifications were obtained by "unconstitutionally suggestive" methods, ¹ he ruled, after a hearing pursuant to U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that the in-court identifications had not been tainted by the earlier confrontations. Following the denial of his motion to suppress the identifications, Jones changed his plea to guilty. He expressly reserved the right to appeal the denial of the suppression motion, in accordance with Wisc.Stats. § 971.31(10). ² The petitioner's plea was accepted without introduction of any supporting evidence other than the eye-witness testimony elicited at the suppression hearing. Jones was convicted, and sentenced to fourteen years incarceration.

The petitioner appealed the denial of the motion to suppress the in-court identifications. The Wisconsin Supreme Court affirmed the lower court's ruling in Jones v. State, 59 Wis.2d 184, 207 N.W.2d 890 (1973).

In June 1973, Jones filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The petition was denied on the ground that Jones had waived his right to challenge the constitutional infirmities of his conviction in a federal habeas corpus proceeding by entering his guilty plea. Judge Tehan therefore did not consider the merits of Jones' claim.

On appeal, this court reversed Judge Tehan's order, holding that under Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), the petitioner was entitled to the same remedies in a federal habeas corpus action as exist in the state courts of Wisconsin.

The case was remanded to the District Court. Chief Judge Reynolds concluded that the methods used at the initial identifications were indeed suggestive and impermissible. He found, however, that these procedures tainted the in-court identification of only one of the eye-witnesses, Georgia Lindow, and that the identification by the other witness, James Gallow, was therefore reliable and admissible. The district court denied the petition for a writ of habeas corpus on the grounds that Jones' guilty plea need not be vacated where one of the in-court identifications was properly admitted. The instant appeal was brought in response to this ruling.

II.

The offense to which Jones pled guilty was a charge of armed robbery (masked). The Gallo Pharmacy in Kenosha, Wisconsin, was robbed by three masked men on July 17, 1971, at about 5:30 P.M. Two of the eye-witnesses to the robbery were Georgia Lindow, an employee of the pharmacy, and James Gallo, the son of the owner.

An armed man opened the door to the back room where Lindow was working, grabbed her by the arm, and told her to lie on the floor with her hands stretched out in front of her. When she lifted her head, the man she identified as the petitioner was kneeling less than ten feet away. He pointed a gun at her and told her to keep her head down. She was able to observe this robber for thirty to forty seconds under good lighting conditions. She noted that he was masked from the nose down, and wore a hat with a floppy brim. She was also aware of his high cheekbones and wide forehead.

Gallo observed at least one of the robbers behind the pharmacy. It was daylight and he was no more than a foot away from this individual. He was able to note the robber's size, build, dark clothing, hat, and his facial features which were marked by high cheekbones.

Within a week of the robbery both eye-witnesses were shown photographs of eight black males. This procedure which was performed independently before each witness is not challenged by the appellant.

Gallo identified two of the photographs as those of two of the men involved in the robbery. One of these was of the appellant. He stated that, to the best of his knowledge, this was the man as he remembered him from the day of the robbery.

Lindow stated that a picture of the appellant resembled the man who had told her to keep her head down, but added that she was not positive of her identification.

Several days later Jones was arrested as a possible parole violator, and was brought to the Kenosha City Jail. The challenged show-ups ensued.

At the first show-up, Gallow and Lindow viewed the appellant through a one-way mirror at the police station. Jones was the only black man in the room, and was accompanied by at least one police officer. Gallo and Lindow were permitted to discuss the robbery together prior to viewing the suspect. Gallo then identified Jones as the robber, stating, "to the best of my knowledge, that's the man I saw July 17." This statement was made in the presence of Lindow. Lindow, however, was unable to make a positive identification, and requested to hear the appellant's voice, as the best means of identifying the robber.

After the show-up the police played to Gallo and Lindow a tape recording of a conversation between Jones and a detective. Lindow remained unable to make positive identification. She requested another opportunity to view the suspect.

At the next show-up Jones was brought into a room in the jail where Lindow was seated. She did not make any immediate identification. Jones was instructed to sit opposite her, approximately four feet away. Pursuant to police orders Jones repeated the statement allegedly made during the robbery. Lindow still did not make any identification. Then, in the presence of Lindow, the detective informed Jones that he had failed a lie-detector test. After some listening to some further conversation, Lindow identified the petitioner as the robber. Jones was the only black person in the room and the only person asked to repeat the threat uttered at the robbery. Lindow was never asked to listen to any other person's voice for identification purposes.

At a later date both Gallo and Lindow went to Racine to view a line-up, which did not include petitioner Jones. Gallo identified a man other than the petitioner as one of the robbers.

Both eye-witnesses identified Jones at the Wade hearing. Each of them stressed the petitioner's facial characteristics. Gallo also relied upon Jones' build and size, and added that his opinion had remained unchanged since he had first been shown Jones' photograph. The trial judge noted that both witnesses stated that their in-court identifications were based upon their observations at the robbery rather than any impressions formed at the show-ups.

III.

In U. S. v. Wade, supra, 388 U.S. at 239-41, 87 S.Ct. 1926, the Supreme Court held that the use of unconstitutional methods to obtain an out-of-court identification did not per se compel the exclusion of a subsequent in-court identification. The later identification may be admissible if it is based upon observations of the suspect independent of the suggestive confrontation. Essentially the factual question is whether the improper procedures were so suggestive that they were "conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The burden is upon the state to demonstrate by clear and convincing evidence that the prior confrontation neither irreparably affected the witness' recollection of the criminal, nor permanently tainted his capacity to make an identification based solely upon his original observations. U. S. v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; U. S. v. Grose, 525 F.2d 1115, 1118 (7th Cir. 1975); Martin v. State of Indiana,521 F.2d 682 (7th Cir. 1975).

The evaluation of the admissibility of an identification made by a witness subsequent to an unduly suggestive confrontation entails a "totality of the circumstances" test. Stovall v. Denno, supra. The Supreme Court listed the factors relevant to such an evaluation in Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926, and reiterated these guidelines in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors include (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of any prior description of the criminal given by the witness; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of the interval between the crime and the confrontation. In sum, where the pre-trial identification was both unduly and gratuitously suggestive, the court must apply these factors to determine the reliability of any subsequent identification. Israel v. Odom, 521 F.2d 1370 (7th Cir. 1975); U. S. ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975).

IV.

Neither the trial judge nor the Wisconsin Supreme Court attempted to analyze the entire circumstances relating to the in-court identifications made by Gallo and Lindow. By contrast, Chief Judge Reynolds carefully applied the Neil v. Biggers test in the manner mandated by Israel v. Odom and Kirby v. Sturges. The court finds that the district court properly evaluated ...