Rozga v. State

• Decision Date: 01 May 1973
• Docket Number: No. S,S
• Citation: 206 N.W.2d 606,58 Wis.2d 434
• Parties: Michael W. ROZGA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 17.
• Court: Wisconsin Supreme Court

Page 606

206 N.W.2d 606

58 Wis.2d 434

Michael W. ROZGA, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 17.

Supreme Court of Wisconsin.

May 1, 1973.

Phillip Berman, Milwaukee, for plaintiff in error.

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

BEILFUSS, Justice.

Defendant contends that the in-court identification by Rita was tainted by an improper pretrial photographic and one-man lineup identifications.

The practice of showing suspects singly to persons for the purpose of identification and not as part of a lineup is usually questioned. Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Foster v. California (1969), 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402. The reason is that such identifications are deemed to be unfair because the atmosphere is highly suggestive and conducive enough to cause an irreparable mistaken identification. This is also true to some extent with photographic identifications. 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. Photographic identification is necessary in order to aid and effectuate 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. . . .' Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. Showing a suspect singly is necessary in situations where the usual lineup procedures are inadequate or simply cannot be employed, Stovall v. Denno, supra; for example, when a witness is seriously injured and about to die in a hospital. In such cases time is crucial and the only feasible means of identification is to bring the accused to the witness. Therefore, a claimed violation of due process of law because of a one-man lineup or showing photographs depends on '. . . the totality of (the) surrounding circumstances . . ..' As stated in Foster, Stovall and Simmons, each case must be considered on its own facts and it is only a denial of due process of law when the conduct of the identification procedures are so impermissibly and unnecessarily suggestive and conducive as to give rise to a very substantial likelihood of irreparable misidentification. This court is in accord with this doctrine. State v. Brown (1971), 50 Wis.2d 565, 185 N.W.2d 323; Zdiarstek v. State (1971), 53 Wis.2d 420, 192 N.W.2d 833; Wright v. State (1970), 46 Wis.2d 75, 175 N.W.2d 646, and State v. Biastock (1969), 42 Wis.2d 525, 167 N.W.2d 231.

The defendant argues that the photograph used in the August 12th identification violates his Fourth Amendment rights under Davis v. Mississippi (1969), 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. In Davis, the United States Supreme Court held that the Fourth Amendment applies to involuntary detentions occurring at the investigatory stage as well as the accusatory stage. The court said that illegally detaining one for the 'sole purpose' of obtaining fingerprints violates the individual's Fourth Amendment rights, and that evidence of the fingerprints so taken was inadmissible in a state court by virtue of the Fourteenth Amendment. By analogy defendant argues that the August 4th photographs fall within the meaning of Davis. There is nothing in the record to show that the August 4th photographs were ever used at the August 12th identification. Such photographs were never introduced into evidence, nor does Rita's testimony imply that such photographs were used. Other photographs of the defendant were also taken when he was legally arrested. The point is that the photographs used could have been procured from many sources. The defendant maintains though that it is the state's burden to prove that the August 4th photographs were not used under the doctrines of State v. Brown, supra. This burden did not exist. The instant case was tried before the Brown decision, which was prospective in application and not retroactive. Even if Brown was applicable, the case is still of no help because before the burden of proof is cast upon the state the defendant must prove the illegality of pretrial identifications. The state then only has to prove the in-court identification is of independent origin and untainted by the photographic identification. The defendant maintains that an inference of an improper photographic identification exists in the record. The defendant did testify that such photographs were taken, but without some showing that the August 4th and August 12th events are somehow connected the...