State v. Guyton
| Decision Date | 23 November 2022 |
| Docket Number | 2021AP1156-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Charles Guyton, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for Dane County: No 2019CF321 WILLIAM E. HANRAHAN, Judge.
Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Charles Guyton appeals a judgment of the Dane County Circuit Court convicting him of second-degree sexual assault and false imprisonment. Before trial, Guyton moved to suppress evidence of a photographic array that had been presented to the victim for identification purposes on the ground that the array violated his right to due process. The circuit court denied Guyton's suppression motion. Guyton appeals that ruling. We conclude that the photographic array did not violate Guyton's right to due process and, therefore, affirm the circuit court's denial of Guyton's suppression motion.
¶2 The following facts are gleaned from the transcripts of the motion hearing and trial and are not in dispute.
¶3 Officer Butler of the Town of Madison Police Department was dispatched to the residence of R.W. to investigate an alleged sexual assault.[1] R.W. reported the following to Officer Butler. A man approached R.W. while she was walking up to the front door of her apartment. The man persistently asked her to go out with him and requested to be let into her apartment building. After R.W. denied his requests, the man unsuccessfully attempted to grab her keys from her hand. The man then pushed R.W. against a wall and made several sexually suggestive statements to her. The man licked R.W.'s face and neck, touched her breasts and buttocks over her clothing and pulled down his pants, exposing his penis. After pulling his pants back up, the man then touched his genital area to R.W.'s genital area over R.W.'s clothing. Eventually the man stepped back, and R.W. was able to escape to her apartment, locking the door behind her before the man could get in. Throughout these events, R.W. did not consent and repeatedly told the man to leave her alone.
¶4 As Officer Butler later testified, R.W. described the assailant as a Black man who was approximately 5'8" to 5'10" and had "short hair or little to no hair" on his head and no facial hair. R.W. also described the man as being "maybe" in his early thirties and described his body type as "maybe a little chubby, but not fat." In his police report, Officer Butler reported R.W.'s description of the assailant's body type as a "thick build." R.W. also recalled that the man identified himself as "Charles" and mentioned that he worked at a nearby Burger King, which she identified.
¶5 Using the information provided by R.W., Officer Butler went to the Burger King and asked the manager if a person named Charles worked there. The manager stated that a man named Charles Guyton worked there and described him as a Black male with a "thicker build" and "shorter hair" on his head. Based on the information provided by the manager, Officer Butler obtained records related to Guyton from a police database.
¶6 Approximately one month after the reported incident, Officer Butler presented R.W. with a photographic array containing photographs of six individuals.[2] This array included one headshot of Guyton and five "filler" photographs depicting headshots of other men who appeared to be Black.[3]
¶7 Officer Butler testified that he obtained four of the filler photographs by using an automated computer system employed by law enforcement which selects photographs, for use in arrays, of individuals with physical characteristics similar to those of a described person. One filler photograph used by Officer Butler was of another individual who lived in the same area as Guyton and has the same first and last name and similar physical characteristics as those of Guyton. Prior to presenting the array to R.W., Officer Butler showed the array to the detective at the Town of Madison Police Department assigned to the case, and the detective approved of the photographs for that purpose.
¶8 Before presenting the array to R.W., Officer Butler read to R.W. standard photographic array instructions, and R.W. signed a form indicating that the instructions had been read to her and she understood those instructions. After placing each of the six photographs in separate envelopes, Officer Butler shuffled the envelopes with the five filler photographs and placed the envelope with Guyton's photograph so that it was neither the first nor the last in the array.
Officer Butler then gave the photographic array to R.W. that included the six envelopes with photographs as well as two envelopes with blank sheets of paper. According to Officer Butler, he included the envelopes with blank sheets at the end of the array with the goal that R.W. would not feel pressured to select the final photograph as showing the assailant. R.W. selected the photograph of Guyton as her assailant and told Officer Butler that she was "95 percent sure that's him." Guyton was charged with one count of second-degree sexual assault and one count of false imprisonment.
¶9 Before trial, Guyton moved to suppress R.W.'s out-of-court identification, arguing that the photographic array denied him his right to due process. The circuit court held a hearing on the first day of trial and denied Guyton's motion. We discuss testimony presented at that hearing and the circuit court's ruling in more detail later in this opinion.
¶10 The case proceeded to trial, and both Officer Butler and R.W. testified as to R.W.'s out-of-court identification. Additionally, R.W. identified Guyton in court as the person who assaulted her and testified that she was "a hundred percent" certain of her in-court identification. The jury found Guyton guilty on both counts. Guyton appeals the judgment of conviction. We mention other material facts in the following discussion.
¶11 On appeal, Guyton argues that the photographic array on which R.W.'s out-of-court identification of Guyton was based violated his right to due process and should have been suppressed. We begin by setting forth governing principles regarding constitutionally based processes for out-of-court identifications and our standard of review.
¶12 We apply a two-step analysis in determining whether an out-of-court identification violates due process and must be suppressed. State v. Roberson, 2019 WI 102, ¶34, 389 Wis.2d 190, 935 N.W.2d 813. First, the defendant must meet an initial burden of showing that the identification procedure employed by law enforcement was "impermissibly suggestive such that there was a very substantial likelihood of misidentification." Id. "If this burden is not met, no further inquiry is necessary." State v. Mosley, 102 Wis.2d 636, 652, 307 N.W.2d 200 (1981). Second, if the defendant proves that the identification procedure was impermissibly suggestive, the State must prove that "the identification was nonetheless reliable under the 'totality of the circumstances.'" Id. Also, if a subsequent in-court identification is challenged as tainted by an impermissibly suggestive out-of-court identification, "the state must show the in-court identification derives from an independent basis." Id.
¶13 Under the first step of this test, suggestiveness in a photographic array may arise from "the manner in which the photos are presented or displayed, the words or actions of the law enforcement official overseeing the viewing, or some aspect of the photographs themselves." Id.[4] With respect to the nature of the photographs, a photographic array may be impermissibly suggestive if it "includes a photo which is unique in a manner directly related to an important identification factor," by which the court meant a significant feature of a description given of the perpetrator. Powell v. State, 86 Wis.2d 51, 66-67, 271 N.W.2d 610 (1978); see also Simmons v. United States, 390 U.S. 377, 383 (1968) (). However, the presence of a "unique identifying feature" in the defendant's photograph does not by itself satisfy a defendant's burden to prove that the photographic array was impermissibly suggestive. Mosley, 102 Wis.2d at 654. Instead, whether a photographic array was impermissibly suggestive "requires a case-by-case application of the rule to the particular facts of each case and must be determined in light of the totality of the surrounding circumstances." Powell, 86 Wis.2d at 63.
¶14 When analyzing a motion to suppress, we employ a mixed standard of review. Roberson, 389 Wis.2d 190, ¶66. First, we review the circuit court's evidentiary findings, which we uphold unless those are clearly erroneous. Id.; WIS. STAT. § 805.17(2) ("Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").[5] A finding of fact is clearly erroneous when "it is against the great weight and clear preponderance of the evidence." Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶39, 319 Wis.2d 1, 768 N.W.2d 615. Second, we independently apply constitutional principles to the facts, and that presents a question of law. Roberson, 389 Wis.2d 190, ¶66.
¶15 The parties...
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