Holmes v. State

• Decision Date: 29 June 1973
• Docket Number: No. S,S
• Citation: 59 Wis.2d 488,208 N.W.2d 815
• Parties: Rodger V. HOLMES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. (2 Writs of error.) tate 183.
• Court: Wisconsin Supreme Court

Page 815

208 N.W.2d 815

59 Wis.2d 488

Rodger V. HOLMES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. (2 Writs of error.)

No. State 183.

Supreme Court of Wisconsin.

June 29, 1973.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for plaintiff in error. Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

On the evening of September 12, 1969, at approximately 11 p.m., two men came to the home of Mr. and Mrs. LaVerne Voss, said that they had had car trouble, and asked to use the phone. Although Mr. Voss did not recognize either of the men, he admitted them into the house and led them through the living room and into the kitchen where the phone was located. Once in the kitchen, one of the men pulled out a pistol and forced Mr. and Mrs. Voss to lie face down on the kitchen floor. While one of the men remained in the kitchen, the other searched the house for valuables but returned to the kitchen empty handed. Mrs. Voss was then forced to accompany one of the men in a search of the house to show him the location of their valuables. This particular search lasted approximately fifteen or twenty minutes, although the two men were in the Voss home about forty-five minutes. The men cut the telephone cord and left the Voss home with Mr. and Mrs. Voss each tied and lying on their kitchen floor. Some personal property, several credit cards, and approximately $13 in cash, had been taken.

A man reported that at approximately 11 or 11:30, on the same evening, while driving home, he observed a white 1962 or 1963 Chevrolet with a loose license plate, parked in front of the Voss residence.

The following morning, September 13, 1969, officer John Porter of the Fort Atkinson, Wisconsin, police department, received a radio report from the Walworth county sheriff's department concerning the incident that had occurred at the Voss residence the night before. He was informed that the sheriff's department was seeking a white 1963 Chevrolet with loose Illinois license plates and possibly occupied by two male subjects, one with dark hair combed back and somewhat long. Sometime later, the same day, Officer Porter observed a man with long, dark and combed-back hair driving a white 1963 Chevrolet with loose Illinois license plates. Officer Porter stopped the man, and he was held at the Fort Atkinson police station for approximately two hours. During this time, two detectives from the Walworth county sheriff's department arrived and questioned him. Before leaving, they took several color photographs of this man, later identified as defendant.

Detective Richard Ladwig, a deputy sheriff for Walworth county, testified that he contacted Mrs. Voss four or five times the week following the incident. Each time he took various pictures of different subjects which generally fit the descriptions given by the Vosses. He testified that Mrs. Voss did not make any identification from these photographs. On September 22, 1969, Officer Ladwig again went to the Voss residence to show five or six more pictures. Included in this group were two pictures of the defendant. The pictures were approximately the same size but the two of defendant were in color while the others were black and white. The pictures were shown to Mrs. Voss one at a time. The defendant's picture was the second or third shown. Mrs. Voss immediately and positively identified the defendant as one of the robbers.

Following Mrs. Voss' identification, Detective Ladwig contacted Mr. Voss at his place of employment and showed Mr. Voss the picture of the defendant. Mr. Voss also identified it as a picture of one of the robbers.

September 24, 1969, a criminal complaint was filed and a warrant issued.

October 28, 1969, following his arrest, the defendant was placed in a lineup at the Walworth county jail. Mr. and Mrs. Voss both identified the defendant as one of the men who had been in their home the evening of September 12, 1969. Defendant was represented by counsel at all times after his arrest. February 4, 1970, the defendant pled guilty to the charge, and on February 23, 1970, was sentenced to an indeterminate term of not more than five years. February 28, 1972, pursuant to an order of the United States District Court for the Eastern District of Wisconsin, the Honorable Myron L. Gordon, presiding, the county court of Walworth county permitted the defendant to withdraw his plea of guilty and vacated the judgment of conviction. The defendant was appointed counsel on March 10, 1972, and requested a jury trial.

The defendant filed a motion 'for an Order suppressing any identification of the defendant by any witness influenced by photographic confrontation or by confrontation of defendant in the line-up held at the Walworth County Jail.' Following an evidentiary hearing, defendant's motion was denied by order of the county court.

We consider the principal issues presented on this appeal to be:

1. Was the defendant denied due process of law because the pretrial photographic identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification?

2. Was defendant's sixth amendment rights to counsel and confrontation of witnesses violated because of the out-of-court pictorial identification of the defendant?

Due process.

Defendant contends that he was denied due process because the trial identification by Mr. and Mrs. Voss allegedly followed a 'photographic identification procedure . . . so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' This court, in accord with the doctrine set forth in Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, has held that it is a denial of due process of law when the conduct of the identification procedures are so impressively and unnecessarily suggestive and conducive as to give rise to a very substantial likelihood of irreparable misidentification. ¹ Rozga v. State (1973), 58 Wis.2d 434, 441, 206 N.W.2d 606; State v. McGee (1971), 52 Wis.2d 736, 743, 190 N.W.2d 893; Quinn v. State (1971), 50 Wis.2d 96, 100, 183 N.W.2d 61; Dozie v. State (1970), 49 Wis.2d 209, 181 N.W.2d 369. The defendant argues that there was in effect a chain of constitutionally tainted identifications, which commenced with an improper photographic identification; that as a result of this identification, the lineup identification was tainted; and the in-court identification was similarly tainted. Under the facts of this case we cannot agree.

The dangers inherent in photographic identification procedures have been recognized, but photographic identification, as such, has not been held per se unconstitutional. In Simmons, supra, 390 U.S. at pp. 383, 384, 88 S.Ct. at p. 971, the court stated:

'It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. . . .

'. . ..

'Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs . . . We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. . . .'

Similarly, this court in Rozga, supra, 58 Wis.2d at p. 440, 206 N.W.2d at p. 609, stated:

'. . . The improper employment of such photographs by the police may cause the identifying witness to err and lead to a misidentification. Further, regardless of how the misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen. This thereby reduces the trustworthiness of a subsequent lineup or courtroom identification. Despite these hazards the need for both types of identification is at times necessary. . . .'

Identification by photographic viewing remains but one of the viable alternative procedures available to police authorities. ² The validity of a photographic identification is reliant upon the particular facts of the individual case. As Mr. Justice Harlan stated in Simmons, supra, 390 U.S. at p. 383, 88 S.Ct. at p. 970, 'This is a claim which must be evaluated in light of the totality of surrounding circumstances.'

Even where the defendant can show that the pretrial photographic identification was impermissibly suggestive, ³ suppression of the in-court identification is not required in every instance. An impermissibly suggestive photographic display gives rise to a very substantial likelihood of irreparable misidentification only if the state is unable to show, by clear and convincing evidence, that a subsequent in-court identification is based on a source independent of the photographic display. ⁴ This court, in State v. Harper (1973), 57 Wis.2d 543, 545, 546, 205 N.W.2d 1, 3, citing State v. Brown (1971), 50 Wis.2d 565, 569, 185 N.W.2d 323, stated:

"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. In the trilogy of lineup cases, United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno (1967), 388 U.S. 293, 87...