Dozie v. State, S

• Decision Date: 01 December 1970
• Docket Number: No. S,S
• Citation: 49 Wis.2d 209,181 N.W.2d 369
• Parties: Willie DOZIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 58.
• Court: Wisconsin Supreme Court

Page 369

181 N.W.2d 369

49 Wis.2d 209

Willie DOZIE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 58.

Supreme Court of Wisconsin.

Dec. 1, 1970.

At approximately 8:50 p.m. on December 13, 1967, a Clark service station in Milwaukee was held up. The filling station attendant and only witness, Craig Zingsheim, identified the defendant, Willie Dozie, as one of the two persons committing the robbery. Following the robbery, the witness furnished a description of the holdup men to the police.

The witness went to the police headquarters on the evening of the crime and viewed approximately 500 pictures of persons with criminal records. No identification was made. Over a period of weeks, the witness viewed other groups of photographs. On January 1, 1968, the witness identified a picture of defendant, one of a group of thirteen being shown him, as being that of one of the holdup men. (At the trial, the witness testified that he was positive the photograph of the defendant was the photograph of one of the two men who had robbed the service station.)

Following the identification of the defendant by his photograph, the witness was requested to appear in the courtroom of County Judge Christ T. Seraphim on the following day at 2:00 p.m. The witness was not told the name of defendant or that defendant was in custody on another criminal charge. The following afternoon, the witness was seated in the rear of the courtroom with instructions to approach a certain police officer and tap his shoulder if he observed anyone he could identify as one of the service station robbers.

One and one-half hours passed without incident. The courtroom was a busy place, with 100 to 150 persons present: Defendants, witnesses, police officers, attorneys and observers, including persons of varying heights, weights, ages and racial or ethnic origins, passed through the courtroom One and one-half hours after the witness sat down in the courtroom, the defendant appeared near the front of the courtroom with his attorney. The witness approached the police officer he was to contact if he identified a person in the courtroom as one of the holdup men. He thereupon identified the defendant as one of the holdup men. Subsequently, the witness observed the defendant during the conduct of the preliminary hearing, held in chambers, of the defendant on a criminal charge unrelated to the present case.

On October 7, 1968, defendant was tried before a jury on a charge of armed robbery contrary to sec. 943.32(1)(b), (2), Stats. On direct examination, the witness gave an in-court identification of the defendant. On cross-examination the earlier identification by photograph and in the courtroom were inquired into. A motion to strike the identifications was made after the state had rested. On October 9, 1968, the jury returned a verdict of guilty. On October 14, 1968, the defendant was sentenced to a term of 20 years. On October 14, 1968, postconviction motions of defendant were denied. From the trial court judgment of conviction, this writ of error was taken.

Carlton Roffa, Charlton, Yanisch, Greco & Roffa, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Lee Edward Wells, Asst. Dist. Atty., for Milwaukee County, Milwaukee, for defendant in error.

ROBERT W. HANSEN, Justice.

Was either the photographic or the courtroom identification of the defendant by the witness to the crime impermissibly suggestive or conducive to irreparable mistaken identification? That is the test. ¹ While the claim of taint involves the totality of circumstances surrounding the two identifications challenged, we will deal with each individually and separately.

IDENTIFICATION BY PHOTOGRAPH.

Here the witness positively identified a photograph of the defendant as a photograph of one of the two men who held up the service station. He did so after viewing well over 500 police photographs of persons with criminal records. An identification by photograph does not require that a number of pictures be submitted from which one is selected. Such photo identification does not require a pictorial simulation of a police lineup. If the first picture exhibited had been identified by the witness as that of the holdup man, no others would be required to be exhibited. No element of per se suggestiveness is provided by the fact of the singleness of the showing. ² However, here the possibility of suggestiveness is clearly negatived by the selection of one needle from so large a haystack. The photographic identification was the initial identification of defendant by the witness. It was entirely proper. It follows tht, even if taint were found in subsequent identifications, such photo identification being unassailable, a proper foundation can be laid for an independent in-court identification of the defendant as perpetrator of the crime. ³

COURTROOM IDENTIFICATION.

On most occasions, as it was here, the misdemeanor courtroom in a large city is a sea of faces. On the afternoon here involved, it was a sea in which many fish did their swimming. They came in assorted shapes, sizes and colors. For an hour and a half, the witness observed them all, 100 to 150 individuals: Defendants, attorneys, witnesses, police officers, spectators and observers. He watched as cases were called and different individuals came and went. When the defendant appeared with his attorney, the witness immediately identified him as one of the robbers and informed a police officer of the fact of the positive identification. Thus it was after an hour and a half of observation that the witness picked one face out of the crowd, one fish from the sea. He had sat alone; he was not influenced by the presence or comments of anyone. He made a prompt and positive identification. There simply is no element of suggestiveness in the procedure followed. It is true that, unlike a prearranged lineup, the situation cannot easily be reconstructed. But it need not be to negate any suspicion of impermissible suggestiveness. No basis for such suspicion or inference exists on the procedure here followed and record here made.

ONE-MAN LINEUP?

The defendant argues that the identification of the defendant by the victim of an armed robbery, in another court and upon a collateral matter, in effect amounted to a 'one-man lineup.' There can no more be a one-man lineup than there can be a one-person parade or procession. The word lineup involves and requires a lining up of a number of individuals from which one of those lined up may or may not be identified as the committer of a crime. Identification by means of such prearranged police lineup is one, but only one, of the methods of identification that may be used by law enforcement authorities. Where the identifying is done by photograph, or by direct observation, of the suspect alone, or, as here, by picking the suspect out of a crowd, we deal with methods of identification that are not lineups at all under even the broadest definition of that word. If the suggestion is that the police must stage a lineup to have a proper identification of a suspect, there is no basis for any such suggestion. While direct observations or one-out-of-a-crowd identifications may not be impermissibly suggestive, they need not be made in situations simulating a prearranged police lineup. In fact, it is the absence of staging that is most reassuring on the question of possible suggestiveness.

DISCREPANCIES IN IDENTIFICATION.

Emphasis is placed on certain discrepancies between the description of the robbers given after the robbery by the victim and the physical appearance of the defendant in subsequent identifications. The witness did state on the evening of the robbery that he was not sure as to height or weight or age of the robbers. Considering the actual description of the defendant at trial and the initial description of the suspect to police to be 'discrepancies,' which would require some upgrading, they were credibly explained by the witness. He stated that the outer clothing worn by defendant at the crime scene made him appear heavier than he was. The witness stated that he never was a good guesser of height and weight. An average citizen is not to be held to estimating age, weight or height with the degree of accuracy expected of a weight-guesser on a carnival midway. The witness here had full opportunity to observe the defendant at the scene of the crime. He never identified another suspect, either by picture or otherwise. He did not fail to identify the defendant either by photograph or in person on any prior occasion. He positively identified the defendant's picture before making the courtroom and witness-stand identifications. Claimed discrepancies between the identifications made and the description initially given to the police, go to the weight to be given to the identifications by the jury, not to the admissibility of the identifications made.

PRESENCE OF COUNSEL.

A corollary question is the entitlement to counsel under Wade-Gilbert ⁴ at the time of the identifications here made. This court has held that a person, after the issuance of a complaint and a criminal warrant for his arrest, is entitled under Wade-Gilbert to counsel at a police lineup, because such situation 'constitutes a critical stage substantially equivalent to a post indictment line-up in the accusatorial period of a criminal prosecution.' ⁵ Additionally, this court has held that...