Hampton v. State

• Decision Date: 04 December 1979
• Docket Number: No. 77-206-C,77-206-C
• Citation: 285 N.W.2d 868,92 Wis.2d 450
• Parties: Silas Ervin HAMPTON, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. r.
• Court: Wisconsin Supreme Court

Page 868

285 N.W.2d 868

92 Wis.2d 450

Silas Ervin HAMPTON, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 77-206-Cr.

Supreme Court of Wisconsin.

Argued Nov. 7, 1979.

Decided Dec. 4, 1979.

The plaintiff in error, defendant Silas Ervin Hampton, after a jury trial, was found guilty of armed robbery as a party to the crime (secs. 943.32(1)(b) and (2) and 939.05, Stats.,) and sentenced to not more than fifteen years imprisonment, later reduced to fourteen years. Customary postconviction motions were made and denied. The defendant obtained writs of error to review the judgment and the order denying the postconviction motions.

Ronald L. Brandt (argued), Deputy State Public Defender, Howard B. Eisenberg, State Public Defender, on brief, for plaintiff in error.

Nadim Sahar (argued), Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

BEILFUSS, Chief Justice.

In this review the defendant raises three issues:

(1) Was it error to limit the testimony of an expert psychologist as to his opinion regarding the reliability of the eyewitness identification of the defendant?

(2) Was it error to refuse to give the defendant's requested identification jury instructions?

(3) Was it error to refuse to give the requested jury instruction on circumstantial evidence?

Defendant's main contention is that the trial court erred in restricting the testimony of Dr. Terrill Bruett, a psychologist called by the defense to testify regarding the reliability of the identification of the defendant by Mrs. Bonnie Schlieve, the State's primary witness.

Mrs. Schlieve was a teller at the savings and loan that was robbed. She testified that on November 14, 1974, at approximately 10:30 a. m., four men entered the Security Savings and Loan Association's branch office located at 4534 West North Avenue, Milwaukee, Wisconsin, and demanded money. Three of the men were carrying firearms consisting of a silver handgun, a long-barreled revolver, and a sawed-off shotgun. Immediately upon entering the savings and loan, one of the men ordered everyone in the building to lie face-down on the floor. While the three armed members of the group stood guard, the unarmed member demanded that Mrs. Schlieve show him where the money was. After she had done so and had assisted in emptying three cash drawers into a gray sack, Mrs. Schlieve was also ordered to lie face-down on the floor. Within a short time thereafter the robbers fled taking with them over $3,000.

On the same day as the robbery, Mrs. Schlieve selected defendant's picture from among forty photographs that the police had asked her to examine. She stated that the photograph of the defendant resembled one of the men involved in the robbery, but that she couldn't be certain without seeing him in person. The following day, at the Police Administration Building, Mrs. Schlieve picked the defendant out of a police line-up and positively identified him as one of the four men who had robbed Security Savings and Loan.

She again positively identified the defendant at trial. She testified that during the robbery defendant had been as close as two feet away from her and that she had directly observed him for a period of approximately one minute. She further stated that he was wearing a dark hat and coat, and was carrying a long-barreled gun.

None of the other persons who were present during the robbery were able to identify the defendant. They had all lain face-down on the floor throughout the time the robbers were present.

The State also introduced into evidence two cannisters of film taken during the hold-up by two 35 mm. surveillance cameras which were activated when the money was forcibly removed from the drawers. A collection of still photos which were blow-ups of some of the frames of this film were received into evidence along with it. These photos show all four subjects actively engaged in robbing the savings and loan. Although even defendant concedes that one of the men depicted in these photos resembles him, he argues that the hat and glasses this man is wearing and his turned-up collar cover some of his facial features and make a positive identification on the basis of the photos alone impossible.

Thus, in defendant's view, Mrs. Schlieve's testimony was the only evidence connecting him to the offense with which he was charged. For this reason the defense sought primarily to impeach her testimony. Defendant also attempted to establish an alibi by claiming that he was asleep at his mother's house on the morning of the robbery.

As part of its effort to impeach Mrs. Schlieve, the defense called as an expert witness Dr. Terrill Bruett. Dr. Bruett had a masters degree in clinical psychology. He was employed by the Milwaukee Public School System and also maintained a private practice as a psychologist.

The defense proposed to have Dr. Bruett testify and enumerate the approximately sixteen different factors which psychologists have recognized as having an affect on the reliability of eyewitness identifications. Dr. Bruett was to first list these factors for the jury and then apply them to the specific circumstances under which Mrs. Schlieve testified that she had observed defendant at Security Savings and Loan and at the subsequent police line-up. In his offer of proof, defense counsel stated that, if so allowed, Dr. Bruett would testify as to the particular factors which would have influenced Mrs. Schlieve's observation of the defendant and which tended to render her testimony regarding those observations unreliable.

In response to a motion by the State brought before trial, the trial court ruled that defendant's expert witness would be limited in his testimony to simply listing the different factors affecting human perception, but would not be allowed to give an opinion as to the reliability of the specific identification of the defendant by Mrs. Schlieve. The court also ruled that the State would be allowed to cross-examine defendant's expert witness generally regarding those factors and their actual operation, but that it could not introduce rebuttal testimony in the nature of the several successful identifications Mrs. Schlieve had made on prior occasions under substantially similar circumstances, unless Dr. Bruett became specific in his testimony and gave his opinion as to the reliability of her identification of defendant.

The defendant contends that the trial court erred in its ruling and that Dr. Bruett should have been allowed to give his opinion as to the reliability of Mrs. Schlieve's testimony. His opinion, defendant argues, was admissible under sec. 907.02, Stats., ¹ and the trial court's exclusion of it so restricted the defense as to deprive defendant of his right to a fair trial and due process of law.

Certainly the ability of a witness to accurately perceive persons, objects and events, and then to correctly recall and relate those perceptions at trial is relevant to the credibility of that witness' testimony. False and damaging testimony can be the product of witnesses unable to perceive correctly no less than witnesses who are merely unwilling to testify truthfully. For that reason this court has on more than one occasion held that the mental capacity of a witness can properly be considered as bearing on his credibility. Sturdevant v. State, 49 Wis.2d 142, 147, 181 N.W.2d 523, 44 A.L.R.3d 1196 (1970); Chapin v. State, 78 Wis.2d 346, 353, 254 N.W.2d 286 (1977); Johnson v. State, 75 Wis. 344, 360, 249 N.W.2d 593 (1977); Desjarlais v. State, 73 Wis.2d 480, 501, 243 N.W.2d 453 (1976).

In pursuing this line of attack a defendant need not be limited to evidence which he is able to elicit from the witness on cross-examination. In Schleiss v. State, 71 Wis. 733, 745, 239 N.W.2d 68 (1976), we stated that expert psychiatric testimony bearing on the credibility of a prosecution witness could be received in a proper case, provided an adequate foundation for the expert's opinion exists. We also emphasized in Schleiss, however, that whether such testimony should be received in a particular case rested with the trial court's discretion.

The reasons for our reluctance to permit the introduction of expert psychologic testimony for impeachment purposes in cases such as this, and for leaving the decision of whether or not to allow such testimony within the sound discretion of the trial court, were stated clearly and persuasively by the Ninth Circuit Court of Appeals in the case of United States v. Barnard, (9th Cir. 1973), 490 F.2d 907, cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). In that case the defendants sought to place into evidence the opinions of a psychiatrist and a psychologist as to the competency and reliability of the chief witness for the prosecution. Each of the experts had based his opinion upon the record of the witness' army psychiatric evaluation, the transcript of his testimony before the grand jury and their own observations of him as he testified in court.

The Ninth Circuit rejected the defendant's contention that the trial court had erred in excluding the expert testimony in language we find very much applicable here:

"As we have seen, competency is for the judge, not the jury. Credibility, however, is for the jury the jury is the lie detector in the courtroom. Judges frequently instruct juries about factors that the jury may or should consider in weighing the veracity of a witness. In this respect it can be said that judges assume that they have certain expertise in the matter, and that juries have less of that expertise than judges. It is now suggested that psychiatrists and psychologists have more of this expertise than either judges or juries, and that their opinions can be of value to both judges and juries in determining the veracity of witnesses. Perhaps. The effect of receiving such testimony, however, may be two-fold: first, it may cause juries to surrender their own common...