State v. Beals

• Citation: 52 Wis.2d 599,191 N.W.2d 221
• Decision Date: 05 November 1971
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Appellant, v. Rodney BEALS, Respondent. tate 106.
• Court: United States State Supreme Court of Wisconsin

Page 221

191 N.W.2d 221

52 Wis.2d 599

STATE of Wisconsin, Appellant, v. Rodney BEALS, Respondent.

No. State 106.

Supreme Court of Wisconsin.

Nov. 5, 1971.

The respondent, hereinafter defendant, was arrested on August 7, 1970, as one of four men allegedly involved in an armed robbery and homicide at Giblin's Bar in the [52 Wis.2d 602] city of Madison. The crimes were committed at approximately 10 p.m. on August 7th, and at approximately 1:20 a.m. on August 8th a group of witnesses to the crimes was asked to view two police lineups which included defendant and two other men thought to have been involved in the crimes. Prior to the lineups an assistant district attorney telephoned the director of the Dane County Legal Aid Society and requested that an attorney be provided to represent the suspects. In response to this request, Attorney Philip Lazarra was sent to the police station. Mr. Lazarra spoke to each suspect separately, indicated that he would represent each suspect for the time being, and briefly informed the suspects not to make any statement to the police without an attorney being present. Neither the police officers nor the district attorney informed defendant of his right to have counsel present at the lineup. There was no discussion between defendant and Lazarra relating to any lineup

Following Lazarra's discussions with the suspects, a 'practice' lineup was held without the witnesses to the crime being present, the lineup consisting of the defendant, two other suspects in the crimes, and four men who were incarcerated in the Dane county jail at the time. All of the participants in this practice lineup and in the official lineups that followed were black males. For this practice lineup the seven men were dressed in slacks without suit coats or ties. After this practice lineup, Lazarra objected to the ratio of the suspects to nonsuspects in the lineup, to the disparity of the height of the participants in the lineup, to the fact that only the defendant and one other suspect had Afrostyled In a pretrial motion, defendant moved the circuit court for Dane county, Hon. Norris E. Maloney presiding, to suppress any identifications made at either the second or third lineups from being introduced into evidence at trial. An extensive evidentiary hearing was held on October 27 and 29, 1970. The circuit court then granted the motion suppressing evidence gained from the third lineup on two counts: (1) counsel was not present for the defendant and (2) the lineup was "unnecessarily suggestive and conducive to irreparable mistaken identification." As to the second lineup, the court ruled that the identifications made at the lineup could be introduced into evidence at the trial, holding (1) the defendant was represented by counsel at the second lineup and (2) the second lineup was not unnecessarily suggestive and conducive to irreparable mistaken identification. The state has appealed prior to trial, pursuant to sec. 974.05(1)(d) 2, Stats., from the order suppressing the third lineup, while defendant has filed both a notice of review and cross appeal, requesting this court to review that part of the order denying defendant's motion to suppress the second lineup.

hair, and to the type of clothing worn by the men in the lineup. After expressing his objections to the assistant district attorney without receiving any assurance that changes would be made to accommodate his suggestions, Lazarra refused to participate further in the lineup and left the [52 Wis.2d 603] police station, despite being asked to remain by the assistant district attorney. After Lazarra left, the defendant requested that he be allowed to consult with Attorney Lazarra. He was not told that Lazarra had left. No attempt was made to secure another attorney for the defendant. The second lineup was then held and it was similar to that held for the benefit of Lazarra--without suit coats and ties. No attorney was present to represent the defendant. At the lineup, two of the 17 witnesses identified the defendant. After this particular lineup, one or more of the witnesses desired to see the lineup with the men wearing suit coats. In compliance with this request, two of the suspects were told to put on their own jackets and ties, while the other men in the lineup were provided with the detectives' suit coats. Prior to the third lineup, the defendant learned Lazarra was not there and asked to be represented by an attorney; no attempt was made to secure another attorney for the defendant. At this lineup, two additional witnesses identified the defendant.

On December 10th, 1970, defendant moved the circuit court for a 'protective order' allowing another individual charged with the robbery and homicide to testify at defendant's trial but prohibiting his testimony from being used against him in any criminal proceedings, except for perjury. Such an order was entered which allowed for complete cross examination of the suspect except for questions relating to his state of mind. The state has appealed from this order, under sec. 974.05, Stats., and the defendant, while asserting that the order is not appealable, has filed a cross appeal claiming that the scope of the permitted cross examination is too broad. Defendant also asserts in his brief that the suspect for whom the 'protective order' was issued has already been convicted of the crimes with which both he and defendant were charged.

Robert W. Warren, Atty. Gen., Andrew L. Somers, Jr., Asst. Atty. Gen., Gerald C. Nichol, Dist. Atty., Dane County, Madison, for appellant.

Van Metre & Hanson, Madison, for respondent.

WILKIE, Justice.

A threshold question which we must consider before reaching the issues on the merits as they are raised concerning both lineups is whether this court has jurisdiction to review both the order suppressing the third lineup, and the order denying the suppression of the second lineup.

The state has appealed from that part of the circuit court's order which suppresses the third lineup, taking this appeal pursuant to sec. 974.05(1)(d) 2, Stats. That section provides that the state may appeal from any order or judgment the substantive effect of [52 Wis.2d 605] which results in the suppressing of evidence. There is no doubt, therefore, as to this court's jurisdiction to review that part of the order suppressing the third lineup.

Following the state's notice of appeal, defendant filed both a cross appeal and a notice of review, requesting this court to review that part of the December 10th order of the circuit court refusing to suppress the second lineup. The state argues that because appeal is a statutory right, this court should not review the second lineup.

Appeal is strictly a statutory right. ¹ It is also true that there is no statutory provision for a criminal defendant to appeal prior to trial from an order denying suppression of a lineup. Thus had the attorney general not appealed in the present situation, the defendant could not have review of the order denying his motion until after an adverse final judgment. The statutes governing appeal do, however, provide for cross appeal and review by a respondent. Sec. 274.12(1), Stats., provides:

'A respondent adverse to the appellant upon the latter's appeal may have a review of any rulings prejudicial to him by serving upon the appellant at any time before the case is set for hearing in the supreme court a notice stating in what respect he asks for a reversal or modification of the judgment or order or portion thereof appealed from.'

Defendant here has served such a notice. As sec. 974.03 provides that criminal appeals by either party are to proceed in the same manner as civil appeals, sec. 274.12 applies to both civil and criminal cases.

The purpose of sec. 274.12, Stats., is to prevent successive appeals and to require all appeals from the same judgment or order to be taken speedily. ² Consistent with that policy is the idea, expressed by this court in civil appeals, ³ that it would be unfair to preclude a respondent from seeking review of an unfavorable aspect of the same judgment or order appealed from.

The present notice of review or cross appeal does raise a unique problem in that respondent's appeal could not be maintained independently of the state's appeal. This issue was faced squarely by an intermediate appellate court in Florida. ⁴ In that case the state appealed under a statute ⁵ quite similar to sec. 974.05, Stats. In that case the Florida court indicated:

'(T)he appellee in this case would not have the right to maintain a separate and distinct appeal from the order denying his motion to quash the information. This is for the reason that appeals from interlocutory orders entered in criminal cases may not be the subject of an interlocutory appeal unless specifically authorized by statute or rule of the Supreme Court. He does, however, have the right to maintain his cross-appeal in this case since it relates to the same order from which the State's appeal is taken.' ⁶ This rule was subsequently cited with approval by the Florida Supreme Court. ⁷

In the present case separate rulings were made regarding both lineups. They were all contained in the same order of the circuit court. The proceedings in that court were totally interwoven. While sec. 274.12(1), Stats., may not specifically cover an appeal to this court from the portion of an order not otherwise appealed from, all the rulings regarding the lineups were in the same order and the policy behind the cross-appeal statute and the equities of allowing the entire matter to be resolved at once, point towards our reviewing all rulings concerning both lineups.

DEFENDANTS RIGHT TO ADEQUATE LEGAL REPRESENTATION AT THE LINEUP

As to the appeals taken on the order concerning the lineups, a single issue is dispositive and that is whether the defendant was adequately represented by legal counsel at the second and third lineups.

In United States v. Wade ⁸ and...