State v. McGee

• Decision Date: 02 November 1971
• Docket Number: No. S,S
• Citation: 52 Wis.2d 736,190 N.W.2d 893
• Parties: STATE of Wisconsin, Respondent, v. Eddie McGEE, Appellant. tate 16.
• Court: Wisconsin Supreme Court

Page 893

190 N.W.2d 893

52 Wis.2d 736

STATE of Wisconsin, Respondent, v. Eddie McGEE, Appellant.

No. State 16.

Supreme Court of Wisconsin.

Nov. 2, 1971.

Defendant-appellant, Eddie McGee, was tried by a jury and convicted of murder in the first-degree, in violation of sec. 940.01, Stats. The judgment of conviction has been appealed.

L. William Staudenmaier, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Mary V. Bowman, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

January 26, 1970, at approximately 4:30 a.m., Paul Rusnak was shot through the neck while employed at an all-night restaurant in Racine, Wisconsin. He died about three weeks later. John D. Ridley, the only eyewitness produced by the State, testified that he had entered the restaurant approximately five minutes before the shooting, had eaten a bowl of chili and was about to leave when Rusnak asked him to remain because one of the patrons had a gun. The defendant, who had been seated at the counter, stood up, moved around the end of the counter and stated he was going to shoot both men. Defendant then shot Rusnak and began firing at Ridley, who was able to run out the rear door and hide behind the restaurant until the police arrived.

On the basis of a photographic identification by Ridley, a warrant was issued for the defendant's arrest. Defendant voluntarily appeared at a police station in Ohio and was returned to Wisconsin. April 8, 1970, preliminary hearing was held. Ridley testified to the events which occurred on January 26th and identified the defendant for the first time in person. Probable cause was found and defendant was bound over for trial.

At trial, Ridley testified there were three negro men, one wearing a white coat, and one negro woman, seated around the southwest corner of the counter. Mary Collins, an employee of the restaurant, testified that when she left at approximately 3:30 a.m. there were four negro persons seated at this position. One of the men was wearing a white coat, the woman had streaked blonde hair, and another one of the men was known by her to be the defendant, Eddie McGee. Ridley further testified that the defendant spoke to him briefly when he first entered the restaurant about leaving his car lights on. However, he could not remember what the defendant was wearing or whether the defendant had a mustache or a scar, but he did state that the defendant had a rough complexion.

Just prior to the shooting, there were five men in the restaurant, including Ridley and Rusnak; the woman had apparently left. Ridley was unable to state definitely where, in terms of the number of stools, he was seated in relation to the defendant, but his testimony shows he was somewhere between three and six stools away. He did not overhear any conversation providing any reason for the shooting, such as an argument or demand for money. There was no reaction by the other two men when the shooting occurred.

A motion by defense counsel to strike the identification testimony given by Ridley was denied by the court and a request for jury instructions on the evaluation of such testimony was refused. Various postconviction motions were also heard and denied.

ISSUES.

On appeal, the defendant raises four alleged errors that occurred at the trial:

(1) Refusal to strike the identification testimony;

(2) failure to instruct the jury on the evaluation of the identification testimony;

(3) instruction of the jury sua sponte during voir dire examination that the defendant was not required to testify; and

(4) failure to declare a mistrial because of certain improper statements made by the prosecuting attorney.

REFUSAL TO STRIKE IDENTIFICATION TESTIMONY.

Ridley testified that he had only seen the defendant twice before, once at the time of the shooting and again at the preliminary hearing. Shortly after the incident, Ridley appeared at the police station where he went through a 'whole file cabinet' of pictures. He picked out two mug shots from the file that could have been the gunman, neither of which were the defendant. Thereafter, an officer showed him five more pictures, from which Ridley identified a picture of the defendant as another possibility. He testified that at the time he was not completely sure which of the three was the gunman, but he was more sure that it was the defendant than either of the other two. He was not told the identity of the persons in the photos until a complaint was sworn on February 3, 1970. He further testified that he was left completely alone while he was going through the filing cabinet and none of the five pictures subsequently shown to him were emphasized or pointed out. There is no indication that the witness was ever asked to identify the defendant in a lineup.

Following Ridley's testimony in regard to his identification of the defendant, defense counsel moved to strike the identification testimony of Ridley on the ground that the manner in which the photographs were presented to the witness was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Defense counsel pointed out that Ridley had testified at preliminary hearing that the defendant's picture was included in the first two Ridley had picked out. The court deferred hearing on the motion to a later time.

Subsequently, a voir dire of Ridley and police officer Donald White was held outside the presence of the jury. Ridley testified that the five pictures were given to him in one stack and there was no suggestion made in regard to any of the pictures shown to him. He could not remember any conversation with the officers at the time he was looking at the pictures. He was asked the following question:

'Q Now when you identified Eddie McGee in this Court, did you identify him from his picture, or did you identify him from seeing him before?

'A From seeing him before.

'Q That is the only reason you said that this is the man that was in Webbs, is because you had seen him before, is that right?

'A Yes.'

Police officer Donald White testified that he first saw Ridley at the police station on the morning of January 26, 1970. Ridley picked out two photos which he stated looked like the gunman. White was instructed to show him five more pictures, and Ridley stated, with regard to defendant's picture, "This looks more like the party than any of the others." Detective White further testified to the following:

'A I don't recall marking these photographs the first day when I went to the District Attorney's office on the 3rd I again showed him these photographs. In fact I had six photographs at this time, including the first five, and I laid them out in front of him and I asked him if he could still identify this photograph, he again pointed to this photograph and he said, 'This is the man that had the gun.' I said, 'Are you sure that this is the man that had the gun?' He says, 'Yes.' He then made positive identification of the man's photograph. On the basis of that a warrant was issued.'

The trial court ruled that the identification testimony was admissible and denied the motion. The court also permitted further examination of Ridley in the presence of the jury. Ridley testified that he could not remember what conversation took place while he was going through the five pictures handed to him by Officer White. The pictures, when handed to him, were in one stack and the witness could not remember which one was on top. The jury was allowed to examine the pictures. The prosecutor then asked Ridley if his in-court identification of the defendant was made because the witness looked at the picture. Ridley replied in the negative.

Defendant contends that the photographic display was impermissibly suggestive. In support of this contention, it is pointed out that Ridley was 'shook up' when he made the initial identification; he had very little time to observe the gunman at the time of the shooting; and he failed to accurately describe the gunman or his clothing.

However, these factors are only relevant insofar as they relate to the witness' credibility or to a determination of whether the in-court identification is independent from the pretrial identification. See: Jones v. State (1970), 47 Wis.2d 642, 178 N.W.2d 42. Although the trial court initially stated the problem in terms of separating the in-court identification from a suggestive pre-trial identification, the court subsequently found that the pretrial identification was not impermissibly suggestive.

Only pretrial identifications which are impermissibly suggestive carry the taint of unconstitutionality. See: Dozie v. State (1970), 49 Wis.2d 209, 181 N.W.2d 369. It must initially be determined, therefore, whether or not pretrial identifications were made under illegal circumstances. State v. Brown (1971), 50 Wis.2d 565, 569, 185 N.W.2d 323. Not all pretrial identifications are unconstitutionally tainted. In State v. Clarke (1970), 49 Wis.2d 161, 169, 170, 181 N.W.2d 355, 359, this court took cognizance of the rule relating to photographic identifications as enunciated by the United States Supreme Court in Simmons v. United States (1968), 390 U.S. 377, 383, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247:

"It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the...