State v. Harris

• Decision Date: 01 October 1968
• Citation: 161 N.W.2d 385,40 Wis.2d 200
• Parties: STATE of Wisconsin, Respondent, v. Michael Jon HARRIS, Appellant.
• Court: Wisconsin Supreme Court

Page 385

161 N.W.2d 385

40 Wis.2d 200

STATE of Wisconsin, Respondent, v. Michael Jon HARRIS, Appellant.

Supreme Court of Wisconsin.

Oct. 1, 1968.

Robert T. McGraw, Waukesha, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Waukesha County Dist. Atty., Waukesha, for respondent.

HEFFERNAN, Justice. Was the evidence, if believed and rationally considered, sufficient to prove the defendant's guilt beyond a reasonable doubt

In a criminal case, the test of the sufficiency of the evidence is whether the evidence adduced, believed, and rationally considered by the jury was sufficient to prove the defendant's guilt beyond a reasonable doubt. Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101; State v. Waters (1965), 28 Wis.2d 148, 153, 135 N.W.2d 768; Jensen v. State (1967), 36 Wis.2d 598, 607, 153 N.W.2d 566, 154 N.W.2d 769. An analysis of the evidence clearly leads to the conclusion that the jury could properly have found the defendant guilty beyond a reasonable doubt.

Both Reverend Andersen and Eric Andersen testified that the man they saw in the church was the same man that they later identified in a police lineup and as the defendant in this case. Reverend Andersen stated that he talked to the man for almost fifteen minutes, during which time the interior of the church was brilliantly lighted. Reverend Andersen testified that he observed this man from a distance of only one or two feet. His son Eric testified that he observed the man at a greater distance but within five or six feet.

Prior to the police lineup, the picture of a suspect was brought to Reverend Andersen, and he tentatively identified the picture as being that of the man in the church. His identification was unequivocal at the lineup and in court.

Eric, without hesitation, identified the defendant as the man in the church at a later lineup, although he had not been shown the photographs of the suspect Harris prior thereto.

Other corroborating identification evidence was also put forth at the trial. Both of the Andersens testified that the burglar wore shoes with Cuban heels, and the testimony of the police showed that the foot-prints of the burglar in the snow showed Cuban heels. Harris was wearing that type of shoe at the time he was arrested.

The conversation between Reverend Andersen and the burglar is also significant in corroborating the identification. Andersen stated that when he saw the man, he looked familiar to him, but he was unable to place his prior contract with him. After Reversed Andersen learned the defendant's name, he remembered that the man had been at his parsonage on at least two occasions, the latest being only three weeks before the burglary, asking for assistance. On Harris' visit to the parsonage in December, he had asked that Reverend Andersen write a letter of encouragement to the defendant's wife, who was hospitalized in Florida. The prior contact with Reverend Andersen was admitted on trial by the defendant. When the man in the church was accosted by Reverend Andersen, he said, 'I know you know who I am * * *. My wife is in the hospital and she needs money.'

These eyewitness identifications are highly probative of the defendant's guilt. However, the defendant attacks the credibility of the identification in two respects. His first attack is upon the procedure used by the police in displaying a photograph to Reverend Andersen prior to the lineup.

It is undisputed that two days after the burglary, detectives came to the church and showed two photographs to Reverend Andersen and asked whether either of them was the burglar. Reverend Andersen stated that he made a tentative identification of the photograph labeled with the name of Michael Harris as being that of the burglar. He also admitted that when he saw the name, he remembered his prior contact with Harris. He, however, reserved any positive identification until he could see the defendant personally. Either that day or a day later, the pastor was advised that Harris would be in a lineup and that he would be asked to pick him out from four other persons. At the lineup the name number of each of the individuals therein was given. The name Michael Harris was the only name familiar to Reverend Andersen. He thereafter identified Harris in the lineup as the man in the church.

The claim of the defendant is that the recollection that Harris was the burglar was erroneously induced by the display of his picture and the revealing of his name prior to the lineup and that a faulty recollection was aided by the suggestions of the sheriff's department and, hence, the identification is incredible.

We agree with the defendant's contention that the procedure used was not the optimum one and that an erroneous identification could conceivably have been suggested by the method used. We have, however, disposed of a similar claim in Brown v. State (1965), 28 Wis.2d 383, 388, 137 N.W.2d 53, 55, in which we said:

'This record does not support the claim that the witnesses were shown photographs of Brown in such a manner 'that the witnesses were given the impression that this was the man who had committed the holdup even though they had not yet identified him in the line-up.' In any event, it would be within the province of the trier of the fact to determine what effect the display of a defendant's photograph to witnesses prior to their identification of him has on the weight and credibility of their subsequent identification. We find nothing in the testimony with respect to pictures of Brown that would render the witnesses' positive identification incredible as a matter of law, or insufficient to convince beyond a reasonable doubt.' Accord, State v. Clarke (1967), 36 Wis.2d 263, 153 N.W.2d 61.

Moreover, it should be remembered that, although Eric Andersen had possibly seen Harris at the parsonage, he was not shown any photographs prior to his identification of Harris in the lineup, nor was he informed as to which to the men in the lineup was Michael J. Harris. Yet, his identification at the lineup, at the preliminary examination, and at the trial was unequivocal.

The second objection to the credibility of the identification evidence is based on the undisputed fact that the defendant at the time of the burglary had a small but clearly visible scar above the left eyebrow. Yet, Reverend Andersen failed to mention such scar when describing the burglary to the representatives of the sheriff's office. In the course of trial, both Eric and his father were frank to admit that they did not notice the scar. The jury had before it pictures taken immediately after the defendant's arrest, which show the scar and from which they could have concluded that it was not a particularly distinguishing mark. The fact that the defendant did bear a visible scar which neither Reverend Andersen nor his son mentioned initially, of course, does go to the credibility of their testimony; but whether their testimony should be discounted for that reason was a matter for the jury to determine. A similar question was before us in State v. Clarke (1967), 36 Wis.2d 263, 273, 153 N.W.2d 61, 66, in which we stated:

'This is a matter of credibility, and the jury may have considered the scars as not prominent or may have considered her testimony together with that of Mr. Traas as overwhelming evidence that defendant was the assailant or may simply have noted the inconsistency without considering it substantial enough to raise a reasonable doubt of defendant's guilt, perhaps because of prosecutrix's state of mind during the attack. The credibility of witnesses is peculiarly for the trier of fact to determine. * * * It cannot be said here that prosecutrix's failure to notice defendant's scars must necessarily raise a reasonable doubt in the mind of the jury.'

We conclude that neither of the defendant's objections warrant the conclusion of this Court that the identification testimony was incredible as a matter of law. At best this conflicting testimony creates factual discrepancies, which go merely to the determination of the trier of fact as to whether to believe or not believe a witness. It is clear that the jury chose to believe Reverend Andersen and his son. Their identification, rationally considered by the jury, could properly lead to the conclusion that beyond a reasonable doubt Harris was the person seen in the church.

Was the defendant's alibi sufficient to raise a reasonable doubt as to his guilt

Shortly after arrest, the defendant filed a notice of alibi as required by sec. 955.07, Stats. In that original notice he claimed to have been at the home of his mother during the time the crime was perpetrated. Subsequent thereto, the court, for good cause shown, permitted the defendant to file another and separate notice of alibi, which claimed that at the time of the crime the defendant was in a parked automobile with a Gloria Borck Stingl. At the trial she testified that sometime near midnight on the night of December 26, 1965, she left...