State v. Kirpatrick, No. 2006AP907-CR (Wis. App. 3/20/2007)

• Decision Date: 20 March 2007
• Docket Number: No. 2006AP907-CR.,2006AP907-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Tyrone Kirpatrick, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 1

State of Wisconsin, Plaintiff-Respondent, v. Tyrone Kirpatrick, Defendant-Appellant.

No. 2006AP907-CR.

Court of Appeals of Wisconsin, District I.

Opinion Filed: March 20, 2007.

APPEAL from a judgment and orders of the circuit court for Milwaukee County: ELSA A. LAMELAS and JOHN A. FRANKE,¹ Judges. Affirmed.

Before Wedemeyer, P.J., Curley and Kessler, JJ.

¶ KESSLER, J.

Tyrone Kirpatrick appeals from a judgment convicting him of two armed robberies, from: (1) a pretrial order denying his motion to sever; and (2) an order denying his postconviction motion to vacate judgment and for a new trial because trial counsel's failure to move to suppress the lineup identification constituted ineffective assistance of counsel.

¶ 2 Because we conclude that the trial court did not erroneously exercise its discretion in denying Kirpatrick's motion to sever and further determine that the lineup identification was proper, thereby constituting no ineffective assistance of counsel, we affirm.

BACKGROUND

¶ 3 Kirpatrick was charged with two counts of armed robbery with threat of force, in violation of WIS. STAT. § 943.32(2) (2003-04).² Count One involved a May 16, 2004, 7:45 p.m. armed robbery of JR News, an adult novelty store located at 831 North 27th Street in Milwaukee. Count Two involved a June 3, 2004, 5:30 p.m. armed robbery of an adult novelty store, Waterfront Video, located at 225 North Water Street in Milwaukee. Both stores were located just off of Wisconsin Avenue, a major thoroughfare in Milwaukee. During trial, evidence was presented of a third robbery, that also took place at JR News, at approximately 9:30 a.m. on May 27, 2004, but which was uncharged and involved a different clerk.

Count One

¶ 4 During the May 16, 2004 robbery, the robber forced JR News sales clerk, Monta Hughes, to lay face down on the floor while the robber attempted to open the cash register. When the robber could not open the register, he put the revolver to Hughes's head, demanding instructions from Hughes on how to open it. After Hughes gave instructions, and after taking the cash from the register, the robber forced Hughes to the back of the store and into the basement. The robber then fled the store. Hughes contacted police. Hughes identified the robber as a light-skinned African-American male, in his late twenties or early thirties, with a medium build, approximately six feet, with facial hair, wearing a dark-colored, hooded sweatshirt and carrying a revolver.

Count 2

¶ 5 Waterfront Video sales clerk, Latrenda Dear, was working alone on June 3, 2004, when a robber entered the store, pulled a hood up as he came through the door, and placed a revolver on the counter, saying "you know what to do." Upon Dear answering "you want the money," the robber said "yeah" and Dear opened the register and gave the robber approximately $ 200. Dear then contacted police and identified the robber as a light-skinned African-American male, between twenty-five and twenty-seven years of age, approximately six feet, with a mustache and beard, wearing a dark, hooded sweatshirt with red lettering and armed with a silver revolver with a brown handle.

Uncharged robbery

¶ 6 After the May 27, 2004 robbery of JR News, the clerk, Richard Ruechel, told police that the robber, after taking the money from the cash register, patted him down, took his wallet from his pants pocket and the police notification button from his shirt pocket, and then forced him to go down to the basement. Ruechel described the robber as a light-skinned African-American male, six feet-five inches tall, slight build, mid- to late-twenties, 175 pounds, wearing a mask, a black, hooded sweatshirt with red lettering on it and armed with a silver revolver.

Police investigation of the robberies

¶ 7 In addition to interviewing the clerks, police recovered the video surveillance tapes from all three robberies. From the tapes, police were able to obtain still photos of the robber. One of the still photos from the May 16 robbery was used to create a wanted poster. After the May 27 uncharged robbery, police recovered a fingerprint from the door of the store which police identified as belonging to Kirpatrick.

¶ 8 During its investigation, the Milwaukee police department showed Hughes five photo arrays. Each photo array consisted of six photos. Kirpatrick's photo was included in only the fifth array. Hughes was unable to identify the robber from any of the arrays and after viewing the fifth photo array on June 5, 2004, Hughes asked to be allowed to view a lineup.

¶ 9 Based on tips which led police to compare a fingerprint from a traffic citation issued to an Antoine Lewis (an alias of Kirpatrick's) to the fingerprint found at JR News after the May 27 robbery, police interviewed Kirpatrick on June 6, 2004. After being read his Miranda³ rights, police showed Kirpatrick the wanted poster and asked him if it was a picture of him. Kirpatrick nodded affirmatively, but refused to sign a statement to that effect.

¶ 10 Both Hughes and Dear were present for the lineup on June 7, 2004. They did not talk with one another, and were separated from each other's view by a divider. Both Hughes and Dear separately identified Kirpatrick as the person who robbed them. The record does not include whether Kuechel, the clerk from the May 27 robbery, was asked to review any photos or a lineup; this may be because the robber during the May 27th robbery of JR News was masked.

Judicial proceedings

¶ 11 On June 9, 2004, a criminal complaint was filed and Kirpatrick made his initial appearance. On June 16, 2004, Kirpatrick waived his right to a preliminary hearing and an information was filed containing the two counts charged in the complaint. Kirpatrick moved to sever the two counts and a hearing was held on the motion. The trial court ruled that under the three-part test established by State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and in accordance with State v. Speer, 176 Wis. 2d 1101, 501 N.W.2d 429 (1993), the evidence to be presented in support of each count was relevant to the other, and that the factual similarities alleged in both counts were sufficient to "rise[] to a level that meets the case law standards in terms of allowing the permissible inference; that is, that it's more likely that this defendant is the [robber] because he committed a very similar [robbery]" under the identity exception of WIS. STAT. § 904.04(2). Finally, the trial court held that there was significant probative value in the evidence that outweighed any prejudice to Kirpatrick and, therefore, denied Kirpatrick's motion. Kirpatrick filed a petition for interlocutory appeal which was denied.

¶ 12 Kirpatrick then filed a motion to suppress his statements and to suppress the identification derived as a result of his arrest in his home without a warrant and without probable cause. After a hearing on the motion, the trial court found that Kirpatrick had given consent for the arresting officers to enter his apartment and that the officers had probable cause to arrest Kirpatrick. Subsequently, the State moved for permission to introduce evidence at trial about the third, uncharged robbery. The trial court, using a Sullivan analysis, concluded that this evidence met an exception in WIS. STAT. § 904.04(2) and was admissible other acts evidence.

¶ 13 During the trial, both Hughes and Dear made in-court identifications of Kirpatrick as the robber in the May 16 and June 3 robberies, respectively. One of the arresting police officers testified at trial that Kirpatrick's apartment, where the officers found and arrested him, was "maybe three or four blocks" from JR News.

¶ 14 A jury returned verdicts of guilty on both counts and judgments of conviction were entered. Kirpatrick was sentenced to concurrent sentences of twelve years of initial confinement and ten years of extended supervision with 398 days sentence credit for time served.

¶ 15 In a postconviction motion to vacate judgment and for a new trial Kirpatrick claimed that his trial counsel had been ineffective by failing to move to suppress Hughes's identification of Kirpatrick because the police procedures used were impermissibly suggestive. The trial court denied the motion without a hearing. Kirpatrick appealed. Additional facts will be provided as needed.

DISCUSSION

1. Joinder and motion to sever

¶ 16 Joinder is governed by WIS. STAT. § 971.12.⁴ We review questions of statutory interpretation de novo. See State v. Locke, 177 Wis. 2d 590, 596, 502 N.W.2d 891 (Ct. App. 1993). Joinder of crimes is appropriate "if the crimes charged ... are of the same or similar character." WIS. STAT. § 971.12(1). For crimes to be of "the same or similar character," they "must be [of] the same type of offenses occurring over a relatively short period of time and the evidence as to each must overlap." State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988). Courts have varied in what may constitute a "relatively short period of time." See, e.g., Locke, 177 Wis. 2d at 596 (incidents occurring two years apart occurred "over a relatively short period of time"); Hamm, 146 Wis. 2d at 138 (two-year interval between incidents constitutes "a relatively short period of time"); Francis v. State, 86 Wis. 2d 554, 561, 273 N.W.2d 310 (1979) (incidents thirty-five days apart satisfy "close in time" requirement). In determining whether "the evidence as to each overlaps," courts have analyzed this question by employing the Wisconsin Supreme Court's three-step other acts analysis as set forth in Sullivan. State v. Gray, 225 Wis. 2d 39, 49-50, 590 N.W.2d 918 (1999); see also WIS. STAT. § 904.04(2).⁵

¶ 17 To make a determination as to admissibility, the trial court must employ the Sullivan three-step analytical framework for other acts evidence. Gray, 225 Wis. 2d at 49-50.

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as...