State v. Garner, No. 96-0168-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: SCHUDSON
• Citation: 207 Wis.2d 520,558 N.W.2d 916
• Decision Date: 17 December 1996
• Docket Number: No. 96-0168-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Andrew James GARNER, Defendant-Appellant. d

Page 916

558 N.W.2d 916 207 Wis.2d 520 STATE of Wisconsin, Plaintiff-Respondent,
v.
Andrew James GARNER, Defendant-Appellant. ^d No. 96-0168-CR. Court of Appeals of Wisconsin. Submitted on Briefs Oct. 1, 1996.
Opinion Released Dec. 17, 1996.
Opinion Filed Dec. 17, 1996.

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[207 Wis.2d 522] For the defendant-appellant the cause was submitted on the briefs of Eileen A. Hirsch, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.

Before WEDEMEYER, P.J., and SCHUDSON and CURLEY, JJ.

[207 Wis.2d 523] SCHUDSON, Judge.

Andrew James Garner appeals from the judgment of conviction, following his guilty plea, for burglary and possession of burglarious tools, and from the trial court's order denying his postconviction motion. He argues that the trial court violated his right to due process of law by denying his motion to suppress identification "without holding a hearing, taking evidence, or developing any factual basis for that denial."

As the parties acknowledge, this appeal presents two related issues of first impression: (1) whether an evidentiary hearing is always required when a defendant moves to suppress identification; and (2) if not always required, whether an evidentiary hearing on an identification motion may be denied when counsel fails to forecast a factual scenario or legal theory on which the defendant could prevail. We conclude that the trial court, in considering defense counsel's presentation of Garner's factual allegations and counsel's theory challenging the identification, correctly determined that Garner offered no factual scenario or legal theory that could prevail and, therefore, properly denied an evidentiary hearing. Accordingly, we affirm.

I. BACKGROUND

The facts relevant to resolution of this appeal are undisputed. According to the criminal complaint, Karen Burris lived in a twelve-unit apartment building where she was the caretaker. As a result of burglaries in the locked storage bins of the basement, she convinced the building owner to install a baby monitor with the transmitter in the basement and the receiver in her first floor apartment.

[207 Wis.2d 524] On the night of January 31, 1995, Burris heard noises from the monitor. She went to the basement to investigate and saw a man carrying property, including some fishing poles from her own storage bin. Burris returned to her apartment, called 911 and,

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while on the phone with the 911 operator, looked out her door and saw the man still holding the property. Burris said the man stared at her while she described him to the operator, and then calmly walked out of the building. ¹

The complaint further alleged that a police officer dispatched to the burglary found Garner walking away from the apartment building carrying property including a bag with fishing poles. ² The police searched Garner and found a hammer in his waistband, a steel pick-type tool and flashlight in his pockets, and a butter knife up his sleeve. Within a few minutes police brought Burris about two blocks from her building to a location where they were holding Garner and the property. Burris identified her fishing poles and also identified Garner as the burglar.

[207 Wis.2d 525] Garner moved to suppress identification and to exclude all derivative evidence. His motion "specifically requests a hearing before the trial" and further asserts:

1. At about 10:00 p.m. on the evening of January 31, 1995, the Shorewood Police Department dispatched Police Officer Brian O'Keefe to the area of North Oakland Avenue and East Newton Avenue to look for a black male suspected of burglary. Officer O'Keefe stopped Mr. Garner in the 3800 block of North Oakland Avenue. He placed the defendant, Andrew Garner into custody by placing hand cuffs on him.

2. While Mr. Garner stood handcuffed on the sidewalk he was exclusively in the presence of Police Officers Brian O'Keefe and Bart Engelking. These Officers detained Mr. Garner while a citizen witness, Karen Burris, was transported by Police Officer Mark Meyers to view him.

3. When Officer Meyers arrived, Mr. Garner was facing South toward Officer Engelking and away from Meyers' squad. Officer Meyers directed Officer Engelking to turn Mr. Garner to face his squad car. Officer Meyers focused his spot light on Mr. Garner to keep him from seeing Karen Burris. Karen Burris positively identified Mr. Garner.

4. The identification of the defendant by Karen Burris should be suppressed because it consisted of the viewing under poor lighting conditions of one individual standing handcuffed on the sidewalk, among police officers, by a witness sitting in a squad car on the street 20 to 36.5 feet away, which is an unduly suggestive and unreliable identification. In addition, the in court identification by Karen Burris at the Preliminary Hearing should be excluded from [207 Wis.2d 526] evidence because it was substantially tainted by the above described investigation and identification.

In support of Garner's motion, defense counsel's brief to the trial court summarized the arrest and, citing the preliminary hearing transcript, stated:

At a preliminary hearing held on February 14, 1995, defendant's attorney asked witnesses a number of questions about the identification which took place on January 31, 1995. Objections to questions about the witness's physical location, lighting conditions, and the description given to police, were sustained. In making the ruling about the description given to police, the court commented:

This is not a motion hearing. Should the case be bound over, should you find it necessary to bring a motion on the identification, certainly this line of questioning would be appropriate, but this is not the time to do that. ³

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The brief reiterated the factual allegations of the motion and then further alleged:

At the April 3, 1995, pretrial hearing, defense counsel added, in response to the court's question, that she also intended to prove at the hearing:

a. That the witness's description of the suspect was "a minimal description, basically a black male, 5'8, 5'7. There is [207 Wis.2d 527] some testimony perhaps of a dark jacket, maybe even a hat."

b. That a police officer will testify that they stopped someone else bearing the exact description of the person described by the witness within that period of time and exact location.

c. That the witness made the identification in question "in a matter of seconds."

Finally, defense counsel asked the court to listen to the 911 tape description of the suspect, or to read her transcript of that tape. The court declined.

After brief oral arguments at the pretrial conference, the trial court denied Garner's motion concluding that it was "insufficient to warrant a hearing." The court explained that a hearing is "not supposed to be a discovery tool" and that, even assuming the truth of Garner's factual allegations, they were insufficient to warrant suppression. The trial court also noted that "[i]f something emerges at trial that defendant is aware of for the first time and that provides the basis for a hearing, a hearing can be had at any point in the proceedings."

II. TRIAL COURT DECISION

Denying Garner's postconviction motion, the trial court provided a particularly insightful written decision that included an analysis consistent with our own. The trial court first considered "[w]hat factual showing, if any, is necessary in order to warrant an evidentiary hearing on a pretrial motion to suppress [207 Wis.2d 528] identification evidence[.]" Citing § 971.30(2)(c), STATS., ⁴ the trial court explained:

[C]ommon sense suggests a requirement that facts be alleged which justify the relief requested. Such a rule allows the trial court to avoid unnecessary evidentiary hearings. There may be no facts in dispute, or the facts alleged may be insufficient to warrant any relief. If the moving party is not able to make sufficient good faith allegations of fact, then the evidentiary hearing becomes a discovery device rather than a means of resolving contested issues of fact. Secondly, such factual allegations allow both parties to properly and reasonably prepare for a hearing. A challenge to [a] particular arrest, search or identification might be based on any of a multitude of factual and legal theories. Only when the moving party states the facts which support the claim can the parties identify the legal and factual issues and determine which witnesses, if any, are needed for a hearing.

Invoking the standards of Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972), the trial court concluded, "Perfunctory allegations are insufficient to warrant a hearing[;] the moving party must allege specific facts, by affidavit, reference to the record, or other offer of proof, which warrant the relief sought."

The trial court next addressed whether a defendant has "the right to a hearing in order to...