Jones v. State, S
| Decision Date | 01 July 1970 |
| Docket Number | No. S,S |
| Citation | 178 N.W.2d 42,47 Wis.2d 642 |
| Parties | Bruce E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. t. 155. |
| Court | Wisconsin Supreme Court |
At about 8:50 p.m. on September 15, 1967, three men held up the St. Elizabeth's Credit Union in Milwaukee. Five employees of the credit union were present at the time of the robbery: John Heiden, Karen Kane, Mary Ellen Leque, Anthony Brondino and Clarence Weber.
John Heiden and Karen Kane went to the police station later that evening in an attempt to identify possible suspects from police photographs. They were unable to identify any. Heiden described the robbers as 5 to 6 feet tall, negro males between the ages of twenty and twenty-five years. Karen Kane described the robbers as two Negroes between eighteen and twenty years old, or in their early twenty's.
On September 26, 1967, the American Motors Credit Union in Milwaukee was held up by four armed men in a manner similar to the St. Elizabeth's robbery. There were also several witnesses to that crime.
Subsequently, on October 7, 1967, Bruce Jones, hereafter referred to as defendant, and Angus Wright were arrested in Sandusky, Ohio. On October 9, 1967, they were identified after a lineup in Ohio, as being involved in the American Motors robbery. On October 10, 1967, complaints and warrants were issued against both men charging them with the armed robbery of the American Motors Credit Union. They were subsequently tried and convicted of this charge and on April 3, 1970, this court affirmed these convictions. 1
On October 11, 1967, defendant and Wright, in the company of Milwaukee detectives LeRoy Jackson and Charles Herck, were returned from Ohio to Milwaukee. At about 7:00 p.m. that evening, a lineup was held at police headquarters with Jones, Wright, and two negro police officers as the subjects of the lineup.
John Heiden, Karen Kane, Clarence Weber, and Mary Ellen Leque, witnesses from the St. Elizabeth's robbery, were there along with several witnesses from the American Motors robbery. None of the St. Elizabeth's witnesses could identify Jones or Wright at this lineup, but some of the other witnesses did stand up and identify them.
A short time after this first lineup, a second one was held. This time Jones and Wright had been asked to wear camel-colored topcoats. During this second lineup, John Heiden stood up and identified Jones and Wright as the ones involved in the St. Elizabeth's robbery. None of the other St. Elizabeth's witnesses identified either of the two men at this time. A third lineup was held at the completion of the second when the lights were turned on and the defendants came back on the stage. No further identifications were made at this point.
Some time later, while in the office of the district attorney, Karen Kane claimed that during the first Wilwaukee lineup she had identified Jones as being involved in the St. Elizabeth's robbery but had said nothing about it until after the lineups had been completed because she was afraid.
Prior to the first lineup, Attorney Ronald Shikora arrived at the police station and asked to see Jones. Detective Jackson took Shikora to the consultation room and permitted him to speak with Jones. Attorney Shikora was present during the first lineup. Prior to the second lineup, Attorney Roy Conen, an associate of Attorney Shikora, came to the police station at the request of the then district attorney, Hugh O'Connell. Attorney Conen spoke with the defendant prior to the second lineup and remained during the second lineup.
Prior to the jury trial held in this case, the trial court held that .' Accordingly, the trial court denied amotion to suppress the identifications made at the Milwaukee lineups.
After the Milwaukee lineups, Detective Jackson questioned Jones and obtained a statement from him in which he admitted his involvement in the St. Elizabeth's robbery and said he was the gunman.
No attorney was present when this statement was made. The statement was not in the defendant's handwriting or signed by him. During the trial the trial court held a Goodchild hearing on the admissibility of this confession and ruled in favor of its admissibility.
Trial was had to a jury which subsequently returned a verdict of guilty. Defendant was sentenced to an indeterminate term of not more than ten years. This sentence was to be consecutive to the fifteen-year sentence imposed on defendant after his conviction in the American Motors Credit Union robbery and a five-year consecutive term for sex perversion.
After defendant's postconviction motions were denied, this writ of error was issued.
Further facts are detailed in the opinion.
Charles Rowan, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty. of Milwaukee County, Theodore J. Hodan, Asst. Atty. Gen., Milwaukee, for defendant in error.
Defendant raises numerous issues concerning testimony admitted as to identity of the defendant which we choose to first consider and which are dispositive of this case. They are:
1. Were the Milwaukee pretrial lineups held at such a stage as to entitle defendant to be represented at such lineups by counsel?
2. If so, was defendant represented at such lineups by counsel?
3. Under the totality of circumstances were these lineups suggestive and unfair as to the identification of the defendant?
4. Were court room identifications independent or the direct result of the Milwaukee lineups?
The lineups involved in this case are generally the same as the ones reviewed in Wright v. State. 2 The witnesses and the crime are different and some of the details of the St. Elizabeth's Credit Union lineup are different in crucial respects from the American Motors Credit Union lineup examined by this court in Wright.
Necessity of Counsel.
In Wright, wherein the lineup was the same lineup described as the first Milwaukee lineup here, this court decided that '(s)ince the lineup here did take place after the issuance of the warrant, the presence of counsel, or, in the alternative, waiver of counsel, was required.' 3
Here, no such warrant had been issued so this case is controlled by this court's decision in Hayes v. State, 4 decided on the same day as Wright and involving the right to counsel at a prewarrant lineup. In Hayes we decided that since the matter had reached an accusatorial stage, Hayes was entitled to counsel at the lineup. The instant matter had also reached such a stage and we think that under Hayes, Jones was entitled to counsel at the Milwaukee lineups.
Presence of Counsel.
Our discussion in Wright 5 of the question of whether Jones had counsel at the Milwaukee lineups adequately considers all aspects of that issue and the decision in Wright that counsel was provided and present at those lineups is repeated here. 6
Suggestiveness of Lineup.
This same issue was raised in Wright. There we quoted the standard test as to fairness of a lineup from Stovall v. Denno: 7 "* * * a claimed violation of due process of law in the conduct of a confrontation depends on the totality of circumstances surrounding it * * *." 8 In Stovall the United States Supreme Court recognized that the conduct of identification procedure may be 'so unnecessarily suggestive and conducive to irreparable mistaken identification' 8a as to be a denial of due process of law.
In Wright we specifically concurred in the trial court's holding that the Milwaukee lineups in that case were fairly conducted. 9
The record in this case demonstrates that the lineups here were materially different from those approved in Wright. At the first Milwaukee lineup in the instant case, the two defendants were viewed with two other negro male police officers (both in their thirty's) in the presence of several witnesses of both the American Motors Credit Union and the St. Elizabeth's Credit Union robberies. At the time Jones and Wright were identified as individuals involved in the American Motors Credit Union robbery by witnesses (victims of that robbery) standing up and pointing to the defendants. The four employees of the St. Elizabeth's Credit Union made no identifications.
At a second lineup held a few minutes later in which the two defendants and the same two police officers were presented again to the four St. Elizabeth's Credit Union employees, the two defendants were required to put on camel-colored overcoats. We find no reason given in the record for putting this special clothing on the two defendants. No claim is made that the two robbers of the credit union were attired in overcoats at the time of the robbery. At this lineup Heiden identified Jones and Wright and he thereupon stood up and pointed out the defendants.
No other employee of St. Elizabeth's Credit Union identified either defendant at this lineup or when the defendants came back again in a third lineup.
Karen Kane testified that she first reported her identification of Jones in the district attorney's office some minutes after the lineups. She claimed that she had identified him at the first lineup but that she did not step forward to identify him then or when she saw Heiden stand up and point to Jones at the second lineup because she was afraid.
We think that under the totality of circumstances the Milwaukee lineup identification of Jones was unfair and suggestive for two reasons:
1. Jones (and Wright) as presented in the second lineup were clothed in a manner calculated to attract special attention and to make them stand out from other persons in that lineup. 9a
2. More than one victim of the alleged crime were present at the same time and were permitted to identify Jones in such a way as to influence identification...
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