McMillian v. State, 76-162-CR

Decision Date02 May 1978
Docket NumberNo. 76-162-CR,76-162-CR
Citation83 Wis.2d 239,265 N.W.2d 553
PartiesOscar B. McMILLIAN, Plaintiff-in-Error. v. STATE of Wisconsin, Defendant-in-Error.
CourtWisconsin Supreme Court

Oscar B. McMillian, plaintiff in error (hereinafter defendant), was convicted of armed robbery, party to a crime, contrary to secs. 943.32(1)(b) and (2) and 939.05(2)(a) and (b), Stats., following a jury trial. A judgment of conviction was entered, and he was sentenced to an indeterminate term of imprisonment of not more than twenty years, consecutive to sentences previously imposed.

The defendant's postverdict motions and his sec. 974.06, Stats., postconviction motions were denied. Writs of error issued to review the judgment of conviction and the orders denying his motions.

Howard B. Eisenberg, State Public Defender, and Alvin E. Whitaker, Asst. State Public Defender, on brief for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., on brief, for defendant-in-error.

HANSEN, Justice.

On November 2, 1973, at approximately 2:20 a. m., a man entered a gas station and asked Roy Beals, the attendant, for permission to use the telephone. He was followed by a second man, holding what appeared to be a .45-caliber automatic pistol, and by a third man, whom Beals was unable to see. The defendant was identified at trial as having been the second man, the gunman.

Beals testified that the gunman was approximately 5' 6"' or 5' 7"' tall, and wore a knee-length brown vinyl coat, with a nappy or fleecy lining and collar. From the loose fit of the coat, Beals assumed the man was thin. The man wore what appeared to be uniform pants and a security guard's cap, with a badge, and had a second badge pinned on his collar.

The fleecy coat collar was turned up around the man's face, and the bill of his cap came down to his eyebrows. Beals was therefore able to observe only a portion of the man's face. From his observation, Beals could tell that the gunman was a black man and that he was not wearing glasses, but could not describe him further. He could not describe the man's hair or estimate his age.

Beals did hear the man's voice, although the voice was muffled by the fleecy collar. Beals testified that the gunman told him to turn around, to go into a back room, and to lie face down on the floor. Beals did as he was instructed. Following him into the back room, the gunman then asked where the money was. Beals answered that the money was in a locked box on a post outside. The man demanded a key, but Beals did not have one. The man then took Beals' wallet, which was empty, and asked if Beals didn't have any money. Beals explained that his boss did not permit him to carry money. Beals also testified that at one point, the gunman struck him with the weapon he was carrying.

The robbers were in the station for about five minutes, and Beals spent most of this time face down on the floor. After they left, Beals found that they had taken, in addition to his empty wallet, his coat, containing five dollars, a transistor radio, and about six cartons of Kools cigarettes.

Later that same day, Kenosha police stopped a car containing four young black men, including the defendant, Oscar B. McMillian. In the car, but not on the person of any of the occupants, the police found what were subsequently identified as the coat, pants, hat and badges worn by the gunman in the robbery. Also in the car were a number of cartons of Kools cigarettes and what was identified as the transistor radio stolen from the gas station. In addition, the police found a BB pistol or pellet gun resembling a .45-caliber automatic; Beals later testified that this gun appeared to be the same weapon used in the robbery.

The four occupants of the car were taken into custody. At some point prior to November 5, 1973, the Kenosha police staged a lineup, consisting of these four men, in connection with the investigation of an unrelated crime, a purse snatching. The lineup was recorded on videotape with an audio recording of the men speaking. The record does not indicate, and the state does not maintain, that the defendant was represented by counsel at this lineup.

On November 5, 1973, the defendant was charged with armed robbery, contrary to sec. 943.32(1)(b) and (2), Stats. At some time thereafter, the audio-videotaped lineup was shown to Roy Beals. The defendant was given no notice that Beals was to view the recorded lineup, and defense counsel was not present at the viewing. Based on the defendant's height and build and on his voice, Beals identified the defendant as the second man, in the robbery, the gunman.

At trial, the defendant was identified by two witnesses as having been the second man at the robbery. The first of these witnesses was Phillip Kidd, one who had been apprehended in the car with the defendant, and who testified that he had been the first man to enter the gas station, that is, the man who asked to use the telephone. Kidd had been given immunity in exchange for his testimony, which was inconsistent with his testimony at the preliminary hearing to the extent that he had there testified that the defendant was the third robber seen by Beals.

The second witness to identify the defendant, over defendant's objections, was Beals himself. Beals testified that he did not believe he could have done so, however, if he had not viewed and heard the recorded lineup prior to trial.

The principal issue on this review is whether a criminal defendant is constitutionally entitled to be represented by counsel at the staging or viewing of an audio-videotaped lineup. We conclude he has no such constitutional right.

The defendant argues that the recorded lineup without notice to, or the presence of, defense counsel, constituted a denial of the defendant's right, under the Wisconsin and federal constitutions, to effective assistance of counsel.

There is no question that a defendant is entitled to the presence of counsel at any live lineup conducted after the initiation of adversary judicial criminal proceedings against him. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Wright v State, 46 Wis.2d 75, 175 N.W.2d 646 (1970); State v. Beals, 52 Wis.2d 599, 191 N.W.2d 221 (1971). It is equally clear that the presence of counsel is not required when photographs are displayed to a witness for the purpose of attempting an identification of the offender. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Holmes v. State, 59 Wis.2d 488, 208 N.W.2d 815 (1973); Kain v. State, 48 Wis.2d 212, 179 N.W.2d 777 (1970).

The question presented here is whether the exhibition of a recorded lineup, by means of audio-video recording, is in the nature of a live lineup or of a photographic display. The introduction of audio-video technology presents the question of the procedure to be followed in the use of these methods of identification.

The starting point for analysis is the principle that an accused is entitled to counsel at any "critical stage" of the prosecution. Kirby v. Illinois, supra, 406 U.S. at 690, 92 S.Ct. 1877; Simmons v. United States, 390 U.S. 377, 382, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Smith v. State, 33 Wis.2d 695, 148 N.W.2d 39 (1967). A pretrial proceeding is a "critical stage" if:

". . . the presence of . . . counsel is necessary to preserve the defendant's . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. . . ." United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. at 1932.

In determining whether the type of identification involved here constitutes such a "critical stage," it is necessary to consider the function of the defense lawyer at a live lineup.

This court has held that the fundamental reason for having a defense attorney present at a lineup is to have him observe the detailed circumstances surrounding the lineup so that they may be reconstructed at trial or at a hearing on a pretrial motion. State v. Beals, supra, 52 Wis.2d at 609, 191 N.W.2d 221. The defense attorney is present as "an eyewitness to the actual circumstances of the lineup"; he is "an observer for the defendant." State v. Beals, supra, at 609, 191 N.W.2d at 227.

In Wright v. State, supra, 46 Wis.2d at 84, 175 N.W.2d at 651, this court explained:

". . . The presence of counsel at the lineup is intended to make possible the reconstruction at the time of trial of any unfairness that may have occurred at the time of the lineup. The important purpose to be served is that of observer. A police lineup is not a magisterial or judicial hearing at which a record is made and objections to procedures can be entered. The lawyer is present as eyes and ears for the accused, not as interrogator or cross-examiner. It is his presence, not his participation, that is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself . . . His function, as observer, (is) to assist the court in reconstructing the circumstances of the lineup at the time of trial. . . ."

Underlying the requirement that counsel be present is the concern that:

". . . the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." United States v. Wade, supra, 388 U.S. at 231, 232, 87 S.Ct. at 1934, 1935.

In United States v. Ash, supra, the Supreme Court stated that the initial test of the necessity for counsel is whether a pretrial proceeding constitutes a "trial-like confrontation" requiring the assistance of counsel, and that if such a confrontation is involved, a...

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  • State v. Ledger
    • United States
    • Wisconsin Court of Appeals
    • March 3, 1993 such a procedure is that of observer. Wright v. State, 46 Wis.2d 75, 84, 175 N.W.2d 646, 651 (1970); McMillian v. State, 83 Wis.2d 239, 244-45, 265 N.W.2d 553, 556 (1978). In Wright, our supreme court explained The presence of counsel at the lineup is intended to make possible the recons......
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