Jones v. State

• Citation: 207 N.W.2d 890,59 Wis.2d 184
• Decision Date: 05 June 1973
• Docket Number: No. S,S
• Parties: James E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 154.
• Court: United States State Supreme Court of Wisconsin

Page 890

207 N.W.2d 890

59 Wis.2d 184

James E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 154.

Supreme Court of Wisconsin.

June 5, 1973.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

The defendant was convicted of armed robbery (masked). ¹ The defendant pled guilty to this charge, conditioned upon his right to appeal ² from the trial court order denying defendant's motion to suppress the identification testimony of eyewitnesses to the crime. The pleadings here require us to inquire (1) whether the denial of the motion to suppress is reviewable; and, if it is, (2) whether the motion to suppress evidence was properly denied; and (3) whether the plea of guilty was acceptably accepted.

RIGHT TO REVIEW.

WRIT OF ERROR. The writ of error, as issued by this court, was to review a judgment dated January 27, 1972. The only order entered on that date was the order denying defendant's motion to suppress evidence. The judgment in this case was dated March 16, 1972. There is no statutory provision for a criminal defendant to appeal prior to trial from an order denying suppression of identification testimony. ³ Review of the order denying his motion to suppress could not be had 'until after an adverse final judgment.' ⁴ Here the writ of error clearly was addressed to the judgment, and the error in the writ of error was as to the date of that judgment. As the state points out in its brief, the conditional plea of guilty was found on sec. 971.31(10), Stats., which by its terms refers only to a review upon appeal from a judgment of conviction. ⁵ However, the state in its brief 'does not contend' that the court cannot or ought not, in this case and on this record, reach the merits of defendant's challenge to the order denying suppression of evidence. On the writ of error, directed to the judgment, we take up the suppression issue. The issue raised in regard to the acceptance of the guilty plea will likewise be considered on the writ of error directed to the judgment

IDENTIFICATIONS BY WITNESSES.

IDENTIFICATIONS CHALLENGED. The motion to suppress identification testimony challenged the admissibility of identifications of the defendant by eyewitnesses to the crime, all conducted prior to the commencement of criminal proceedings by issuance of information and warrant. Thus challenged are (1) a photo identification; (2) a voice recording identification; (3) an observation from another room; and (4) one-to-one confrontation. Not challenged or involved on this appeal is a staged lineup identification, ⁶ ordinarily the type of identification challenged on appellate review. ⁷ As to the four identification procedures here used, the defendant claims each to be 'unnecessarily suggestive.' That is the test, ⁸ to be applied in the light of the 'totality of (the) surrounding circumstances,' ⁹ to balance the rights involved. ¹⁰ Additionally, the issue of the right to a suspect to have counsel present at the pretrial identifications is raised and will be considered as to each of the four identifications involved.

PHOTO IDENTIFICATION. After viewing eight photographs, eyewitness James Gallo, son of the owner of the pharmacy that was robbed, identified a picture of the defendant 'as a probable suspect in the robbery.' No claim is here made that this photo identification was 'unnecessarily suggestive,' and, on this record, none could be made. Identification by photograph reviewing is one of the alternative identification procedures available to police authorities. It certainly is not per se 'unnecessarily suggestive.' ¹¹ Even a single photo showing would not be that. ¹² Nor was the presence of counsel required at the time of such pretrial photographic identification. ¹³

VOICE RECORDING IDENTIFICATION. In the presence of the eyewitnesses to the crime, James Gallo and Georgia Lindow, the police played a tape recording of defendant's voice. No claim is made that anything about the playing of the tape was 'unnecessary suggestive.' It is not easy on this record to separate the voice identification from the direct observation of defendant by the witnesses which proceded the tape playing. We do so only to find the playing of a voice recording to be in the same category as a single photo identification. Hearing the voice recording gives an opportunity to identify the voice of a suspect. Viewing a photograph provides an opportunity to identify the facial features of a suspect. The single photo identification is not per se suggestive ¹⁴ and does not require the presence of counsel. ¹⁵ Neither does a voice recording identification, with the weight to be given either or both such types of identification being for the trier of fact.

OBSERVATION FROM ANOTHER ROOM. Both eyewitnesses, James Gallo and Georgia Lindow, were given the opportunity to observe the defendant from another room through a one-way mirror. Following the observation of defendant, witness Gallo stated, 'To the best of my knowledge, that's the man I saw July 17.' He testified that he was not sure whether anyone else was in the room. If no one else was in the room with the suspect, it would be what this court has termed a 'one-to-one' observation. ¹⁶ If other persons came, went or stayed in an entirely unplanned situation, it would be what this court has termed a 'one-out-of-the-crowd' situation, ¹⁷ analogous to a witness observing various persons appearing in courtroom proceedings. ¹⁸ The trial court found this observation from the next room 'unnecessarily suggestive, ' but failed to state the basis or any reason for so holding. If the ruling were to have been material to the outcome of this appeal, remand would be indicated to determine why or in what particulars the observation was found to be suggestive. If that basis was something in the manner in which the observation was conducted, that would be a finding of fact to be sustained if supported by the evidence. ¹⁹ If the trial court was holding such observation, either one-to-one or one-out-of-a-crowd, to be per se suggestive, the ruling could not stand. ²⁰ If the suggestion was that the police here were required to stage a lineup, that was clearly in error. ²¹

Whether viewed as one-to-one or one-out-of-a-crowd identification, it is undisputed that the observation from the other room was conducted prior to the issuance of information or warrant, and prior to the institution of a criminal proceedings. In Hayes, this court upheld a defendant's contention that he was entitled under Wade-Gilbert to the presence of counsel at a lineup, conducted prior to the issuance of a complaint and criminal warrant. ^{22 22} However, the United States Supreme Court has since made clear that Wade-Gilbert apply only to lineups conducted 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' ²³ The high court specifically negatived the suggestion that the requirement of counsel was constitutionally mandated 'concerning an identification that took place long before the commencement of any prosecution whatever.' ²⁴ Moreover, Hayes referred only to a staged police lineup, and this court made clear that presence of counsel is not required at one-to-one or one-out-of-a-crowd observations held before commencement of criminal prosecution, ²⁵ distinguishing between staged lineups and unstaged observations. ²⁶ We do not have a lineup here, ²⁷ and, as to opportunities to observe the defendant here involved, all prior to the issuance of information or warrant, the presence of counsel was not required. The contrary holding of the trial court was in error.

ONE-TO-ONE CONFRONTATION. The fourth and final identification challenged is the typical one-to-one confrontation or direct identification. It involved only one of the two eyewitnesses, Georgia Lindow. Following her observing the defendant through the one-way mirror, ²⁸ she called the police station and asked if she could view the defendant again. She went back to the station and confronted the defendant in a one-to-one situation. The defendant, at the request of a police officer, repeated the words the robber used at the time of the holdup. However, in her presence, the police officer told the defendant that he had flunked a lie detector test. This remark by the police officer clearly suggested that the defendant was the man who had robbed the drug store. It amply supports the trial court ruling, suppressing the identification made by the lady witness at this one-to-one confrontation. The situation parallels that in a recent case where a police officer told the witness that the suspect, whom she was to meet in a one-to-one confrontation, had said he had committed such a crime. ²⁹ In both situations, the clear impression was that the defendant was the person who committed the crime. This made the identifications 'unnecessarily suggestive.' While the trial court erred in finding presence of counsel required at a one-to-one confrontation, conducted prior to the issuance of information or warrant, it did not err in holding this one-to-one identification 'unnecessarily suggestive,' and not admissible into evidence. It was both suggestive and inadmissible.

IN-COURT IDENTIFICATION. Suppressing evidence of a particular identification as having been secured in an 'unnecessarily suggestive' manner raises the corollary question, under the twofold Kirby test, as to whether the excluded identification created a very substantial likelihood of irreparable misidentification. Or, as stated in Rozga, '. . . the question remains whether under 'the totality of the circumstances' this (improper confrontation) was sufficient enough to taint the in-court identification--thereby preventing it to independently...