State v. Dubose

• Decision Date: 14 July 2005
• Docket Number: No. 2003AP1690-CR.,2003AP1690-CR.
• Citation: 699 N.W.2d 582,2005 WI 126,285 Wis.2d 143
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tyrone L. DUBOSE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

285 Wis.2d 143

2005 WI 126

699 N.W.2d 582

STATE of Wisconsin, Plaintiff-Respondent, v.Tyrone L. DUBOSE, Defendant-Appellant-Petitioner.

No. 2003AP1690-CR.

Supreme Court of Wisconsin.

Oral argument March 2, 2005.

Decided July 14, 2005.

For the defendant-appellant-petitioner there were briefs and oral argument by Jefren E. Olsen, assistant state public defender.

For the plaintiff-respondent the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager,attorney general.

An amicus curiae brief was filed by Keith A. Findley, John A. Pray and Byron C. Lichstein, Madison, on behalf of the Wisconsin Innocence Project of the Frank J. Remington Center, University of Wisconsin Law School.

¶ 1. N. PATRICK CROOKS, J

PetitionerTyrone Dubose(Dubose) seeks review of an unpublished decision of the court of appeals that affirmed the circuit court's judgment of conviction for armed robbery.The main issue presented to us is whether the circuit court erred in denying Dubose's motion to suppress the victim's out-of-court identifications of him, after determining that the eyewitness identification procedures used, including two showups,¹ were not impermissibly suggestive, nor the result of an illegal arrest.

¶ 2.We agree with Dubose that the circuit court erred in denying his motion to suppress the out-of-court identification evidence.However, we decline to adopt his proposed per se exclusionary rule regarding such evidence.Instead, we adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court's decision in Stovall v. Denno,388 U.S. 293(1967).We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary.A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.Since the motion to suppress the out-of-court identifications of Dubose should have been granted here, because such identifications were unnecessarily suggestive, we reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings consistent with the standards adopted herein.

I

¶ 3.Timothy Hiltsley(Hiltsley) and Ryan Boyd(Boyd) left the Camelot Bar in Green Bay, Wisconsin, at approximately 1:00 a.m. on January 9, 2002.Hiltsley had been drinking at the bar and admitted to being "buzzed" when he left.In the parking lot, Hiltsley and Boyd encountered a group of men, some of whom Hiltsley recognized as regular customers of a liquor store where he worked.Dubose, an African-American, was one of the men he allegedly recognized.After a brief conversation, Hiltsley invited two of the men, along with Boyd, to his residence to smoke marijuana.

¶ 4.When they arrived at Hiltsley's apartment, Hiltsley sat down on the couch to pack a bowl of marijuana.At that time, Dubose allegedly held a gun to Hiltsley's right temple and demanded money.After Hiltsley emptied his wallet and gave the men his money, the two men, both African-Americans, left his apartment.

¶ 5.Within minutes after the incident, at approximately 1:21 a.m., one of Hiltsley's neighbors called the police to report a possible burglary.She described two African-American men fleeing from the area, one of whom was wearing a large hooded flannel shirt.At the same time, Hiltsley and Boyd attempted to chase the men.They searched for the men in Boyd's car and hoped to cut them off.After driving nearly two blocks, Hiltsley got out of the car and searched for the men on foot.During his search, Hiltsley flagged down a police officer that was responding to the burglary call.Hiltsley told the officer that he had just been robbed at gun-point.He described the suspects as African-American, one standing about 5-feet 6-inches, and the other man standing a little taller.

¶ 6.Another police officer also responded to the burglary call.As he neared the scene, he observed two men walking about one-half block from Hiltsley's apartment.This officer, Jeffrey Engelbrecht, was unable to determine the race of the individuals, but noted that one of the men was wearing a large hooded flannel shirt.When the officer turned his squad car around to face the men, they ran east between two houses.The police quickly set up a one-block perimeter in order to contain the suspects.

¶ 7.The officer subsequently requested headquarters to dispatch a canine unit to help search for the men.While he waited at the perimeter for the canine unit, police headquarters reported another call in regard to an armed robbery at Hiltsley's apartment.The report indicated that the two suspects were African-American males, that one was possibly armed, and that the two calls were probably related.Upon their arrival, the canine unit officer and his dog began tracking the suspects within the perimeter.The dog began barking near a wooden backyard fence, and the officer demanded that the person behind the fence come out and show his hands.A male voice responded that he was going to surrender and asked why the police were chasing him.The male who came out from behind the fence was Dubose, who was subsequently arrested.

¶ 8.Dubose, who was not wearing a flannel shirt, told the police that he had been in an argument with his girlfriend and that he had just left her house.He thought she might have called the police on him, which is why he ran when he saw the squad car.After his arrest, he was searched.The search did not uncover any weapons, money, or contraband.²Dubose was then placed in the back of a squad car and driven to an area near Hiltsley's residence.¶ 9.At this location, the officers conducted a showup procedure, giving Hiltsley the opportunity to identify one of the alleged suspects.The officers placed Hiltsley in the backseat of a second squad car, which was parked so that its rear window was three feet apart from the rear window of the squad car containing Dubose.The dome light was turned on in the car containing Dubose.The officers told Hiltsley that Dubose was possibly one of the men who had robbed him at gunpoint, and asked Hiltsley if he could identify the man in the other squad car.Hiltsley told the police that he was 98 percent certain that Dubose, who sat alone in the back seat of the other squad car, was the man who held him at gunpoint.Hiltsley also told the police that he recognized him due to his small, slender build and hairstyle.

¶ 10.The squad cars separated and took both Hiltsley and Dubose to the police station.Approximately 10 to 15 minutes after the first showup, the police conducted a second showup.There, Hiltsley identified Dubose, alone in a room, through a two-way mirror.Hiltsley told police that Dubose was the same man he observed at the previous showup, and that he believed Dubose was the man who robbed him.A short time after the second showup, the police showed Hiltsley a mug shot of Dubose, and he identified him for a third time.

¶ 11.The State of Wisconsin(State) charged Dubose with armed robbery.Dubose filed a motion to suppress all identifications of him in connection with the case, specifically asserting that the first showup was "unnecessarily suggestive and conducive to an irreparable mistaken identification. . . ."He also claimed that the identifications were the fruits of an unlawful arrest, which denied him due process of law.The Brown County Circuit Court, Sue E. Bischel, Judge, denied Dubose's motion and scheduled a jury trial.At trial, Hiltsley testified about the events and subsequent showups that occurred on January 9, 2002.He also identified Dubose in the courtroom as the man who held him at gunpoint on the night in question.The jury convicted Dubose of armed robbery on September 5, 2002.

¶ 12.Dubose appealed his conviction to the court of appeals.In an unpublished opinion, the court of appeals affirmed the judgment of the circuit court.The court held that the totality of the circumstances demonstrated that Dubose's arrest was lawful, and that Dubose had not met his burden to prove the impermissible suggestiveness of the out-of-court identifications.In concluding that there was probable cause for arrest, the appellate court relied on several factors, including the time of the arrest, the proximity of Dubose's location to Hiltsley's apartment, Dubose's similarity to the description provided by dispatch, and Dubose's flight after seeing the police car.

¶ 13.The court of appeals also determined that the first showup was not impermissibly suggestive.Dubose's argument concerning suggestiveness relied on the fact that he sat alone in the police vehicle, the witness had been drinking and was "buzzed," the identification occurred shortly after the robbery occurred while Hiltsley was upset, and the officers suggested to Hiltsley before the showup they had possibly caught "one of the guys."The court of appeals held that the showup was not impermissibly suggestive based on the totality of the factors involved.

¶ 14.Likewise, the court rejected Dubose's challenge to the second showup at the police station.The court was not persuaded by Dubose's argument that he was the only suspect shown to Hiltsley, and that the second showup occurred too soon after the first one.The court held that showing only one suspect to Hiltsley does not, by itself, render a showup impermissibly suggestive.In responding to Dubose's other argument, that the timing of the showups was too closely related, the court of appeals held:

First, to the extent that Dubose claims this second identification was premised on an earlier mistaken identification, we note that our inquiry rests solely on the suggestiveness of the police procedures used in garnering an individual's

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