Powell v. State
| Decision Date | 28 November 1978 |
| Docket Number | Nos. 76-508-C,76-510-CR,s. 76-508-C |
| Citation | 271 N.W.2d 610,86 Wis.2d 51 |
| Parties | Girard POWELL, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. Donald W. HICKLES, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
By agreement of counsel and permission of the court, these two cases have been consolidated for argument and opinion upon review of the writs of error issued in both cases. Both cases are concerned with the same event an armed robbery by two mem. The cases were tried separately and in each case the jury returned a verdict of guilty. The plaintiff in error, Girard Powell (defendant), was sentenced to a term not to exceed fifteen years, and the plaintiff in error, Donald W. Hickles (defendant), not more than twelve years. In both cases postconviction motions were made and denied and both defendants obtained writs of error to review the judgment and the order. In the review now before the court in each case the issue is whether the pre-arrest photographic identification of the defendants by the victim was impermissibly suggestive.
Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Deputy State Public Defender, and Mark Lukoff, Asst. State Public Defender, for plaintiffs.
Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., for defendant.
On November 6, 1975, at about 6:15 p. m., at the Vine Street Tap in Milwaukee, the bartender, Amos Pinnex, 1 was confronted by a black man at the bar pointing a revolver in his face. Another black man carried either a bolt action shotgun or a rifle. Five people were in the bar when the robbers entered the bartender, three elderly regulars, and a customer named Larry Parks who later admitted being a party to the robbery and acting as a look-out for his conspirators. Parks also shared in the proceeds of the robbery.
The armed robbers obtained the money in the cash register and the wallets of the customers. The robbers were in the tavern approximately ten minutes.
The police were called and arrived at the scene about twenty minutes after the robbery. Pinnex provided an initial description of the robbers at this time. This description, contained in the police department report on the matter, was as follows:
" . . . two Negro males, No. 1 being a Negro male, eighteen to twenty years, five foot eight inches, thin build, dark complexion, medium afro, thin mustache, short goatee with a chipped upper right front tooth, wearing a black coat and jacket, zipper front and dark green slacks; along with a second Negro male who was in his twenties, six (feet) two (inches), dark complexion, wearing platform shoes, red slacks, natural hairdo and carrying possibly a .38 blue steel caliber revolver. . . . "
Five or six weeks after the robbery, on the basis of the original description and a statement by Parks admitting his involvement and implicating Girard Powell and Donald Hickles, Pinnex was asked to view an array of five photos. All the photos were black and white Bureau of Investigation photographs selected to fit the same general description; all were of black males, approximately five foot eight to six foot one, appearing to be in their early twenties or late teens. Included in the group were photos of Powell, Hickles and Parks. Pinnex was shown the photos twice. On both occasions he identified Powell and Hickles as the men who held him up, and picked out Larry Parks as the customer in the bar at the time of the robbery.
Subsequently, Powell and Hickles were arrested, tried separately, and convicted of armed robbery and being a party to a crime. The state's case in both trials rested on Pinnex' out-of-court and in-court identifications of the two defendants. The weapons and cash were never recovered. No satisfactory fingerprints were found at the scene. The three remaining witnesses, all too frightened to look at the gunmen during the robbery, were unable to corroborate Pinnex' identification and did not appear at either trial.
In the present consolidated proceeding, defendants (plaintiffs in error) contend it was reversible error for the trial court in each case to admit both Pinnex' pre-trial photographic identification and his later in-court identification of the two defendants.
A criminal complaint was issued charging Donald W. Hickles, Girard Powell and Larry Parks with armed robbery, party to a crime in violation of secs. 943.32(1)(b) and (2) and 939.05, Stats., for the armed robbery which occurred on November 6, 1975, at the Vine Street Tap in Milwaukee. The complaint noted that bartender Pinnex had depicted Hickles as carrying a handgun and Powell as wielding a rifle or shotgun. A preliminary examination which resulted in Hickles' bind over for trial was held in the county court of Milwaukee county before Reserve Judge T. J. Pruss. 2
At the preliminary Pinnex made an in-court identification of both Parks and Hickles and related the general circumstances of the robbery. In contrast with the information contained in the complaint, he identified Hickles as the fellow who carried the shotgun. He testified that this man had come to within five feet of him on that evening. According to his testimony which also contradicted his statement in the criminal complaint it was the taller gunman, not involved in the proceeding and not identified by name by Pinnex who had the pistol. Pinnex testified further that in the initial description he gave to the police he described the robber with the shotgun as five foot five, five foot six or five foot eight, weighing about 165 pounds and wearing a hat. Neither gunman wore a mask. The tavern was "fairly light." Pinnex was able to observe the men for about ten minutes. Pinnex also revealed that the police had asked him to view a lineup, but he "left town." Hickles' attorney moved to dismiss on the ground that the identification by Pinnex was "so suggestive." The motion was denied and defendant Hickles was bound over for trial.
Prior to the commencement of the jury trial, the trial court heard the defense motion to suppress the allegedly improper eyewitness identification.
At the hearing on the motion Pinnex, Patrolman David Kane and Detective Roosevelt Harrell appeared for the state. Pinnex testified that he was asked to make a photographic identification on two consecutive days approximately a week after the robbery. On the first occasion he was approached at work by two uniformed police officers. One of the officers, Patrolman Kane, asked him to "just identify the people." That was all the officer said, he did not suggest who might be in the pictures. Pinnex was able to make an identification and told the officer so. The photos Pinnex selected as being of the two gunmen (Powell and Hickles) and the supposed customer (Parks) were the top three photos in the stack. On the following day another law enforcement official, Detective Harrell, asked him to look at the same stack of five photos. Pinnex again selected only the photos of Hickles, Powell and Parks.
Patrolman Kane testified that he spoke with Pinnex on December 15, 1975. At that time he handed Pinnex the photos, in no special order, and asked him to view them and tell him if any of the persons photographed were involved in the robbery. Pinnex viewed each one for a minute or two and stated that Hickles' picture and Powell's picture "positively were two of the men involved in the robbery." Pinnex did not display any hesitancy once he reached the photos and gave no indication of vision difficulty.
Detective Harrell testified that he talked to Pinnex on December 16, 1975, also at his place of part-time employment. He handed Pinnex the same five photos, stating that he wanted him to look at them to see if he could recognize any of the people who had robbed the Vine Street Tap. Pinnex spread them out on a car and picked each one up one at a time. He then picked out the photos of Parks, Hickles and Powell, saying "(t)his is one of them" or words to that effect. On cross-examination, when asked why a second photograph viewing was considered necessary, Harrell explained that he had been about to draft the complaint at the time and wished to verify that Mr. Pinnex could positively identify the suspects. Additionally he wished to clear up the discrepancy in regard to who had held which weapon.
At the close of the testimony defense repeated its motion to suppress, citing the inclusion of the photos of Parks and Powell, the small number of photos in the array, and the fact that Hickles was the only subject pictured with a beard. The court, finding that the pictures themselves were not improper and that no improper influence or unlawful suggestion tainted Pinnex' viewing of them, denied the motion. The case then proceeded to trial.
Pinnex, Patrolman Kane and Detective Harrell again appeared for the state. As in the pre-trial proceedings Pinnex, the first witness, again related the circumstances of the robbery. At about 6:10 p. m., a man (Larry Parks) entered the bar and persuaded Pinnex to join him in a game of pool. Shortly thereafter another man came in and asked for a package of gum. As Pinnex turned to give him change the man, later identified as Powell, pulled out a black handgun and pointed it at Pinnex. Then another man entered with a rifle or shotgun and told Pinnex to get behind the bar. At one point Pinnex testified that he stood with his hands up while the gunman with the pistol emptied the cash register and told everyone to take his wallet out. However, later in his testimony he stated, in response to a question by defense counsel, that the one who was taking the money out of the register was "the gentleman behind you" (I. e., Hickles). Pinnex identified defendant Hickles as the shorter man who carried the rifle or shotgun and who was the second to enter. Defendant's face was not covered. While the witness had...
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...Out-of-court identifications are governed by our supreme court's decision in Powell v. State, 86 Wis.2d 51, 271 N.W.2d 610 (1978). The supreme court The test for determining whether an out-of-court ... identification is admissible or, on review, whether the out-of-court identification was p......
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...created a two-step procedure for determining the admissibility of eyewitness identification testimony. See, e.g ., Powell v. State , 271 N.W.2d 610 (WI 1978). In part one, the Court examines whether or not the identification procedure used was impermissibly suggestive. The defense has the b......
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...created a two-step procedure for determining the admissibility of eyewitness identiication testimony. See, e.g ., Powell v. State , 271 N.W.2d 610 (WI 1978). In part one, the Court examines whether or not the identiication procedure used was impermissibly suggestive. The defense has the bur......
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