State v. McMorris, No. 95-2052-CR (Wis. 10/30/1997)

• Decision Date: 30 October 1997
• Docket Number: No. 95-2052-CR.,95-2052-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Ricky McMorris, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

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State of Wisconsin, Plaintiff-Respondent, v. Ricky McMorris, Defendant-Appellant-Petitioner.

No. 95-2052-CR.

Supreme Court of Wisconsin.

Opinion Filed: October 30, 1997.

Oral Argument: September 4, 1997.

Appeal from the Circuit Court, Racine County, Dennis J. Barry, Judge.

REVIEW of a decision of the Court of Appeals. Reversed in part; cause remanded.

Reported at: 205 Wis. 2d 727, 557 N.W.2d 255 (Ct. App. 1996)

For the defendant-appellant-petitioner there were briefs and oral argument by Walter W. Stern, Union Grove.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, assistant attorney general.

SHIRLEY S. ABRAHAMSON, Chief Justice.

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. McMorris, No. 95-2052-CR, unpublished slip op. (Wis. Ct. App. Oct. 2, 1996), affirming in part and reversing in part an order of the Circuit Court for Racine County, Dennis J. Barry, Judge. The circuit court denied the motion of the defendant, Ricky McMorris, to suppress two identifications: (1) the eyewitness's in-court identification of the defendant and (2) the eyewitness's identification of the defendant in a post-indictment, pre-trial lineup conducted without notice to and in the absence of his counsel in violation of his Sixth Amendment right to counsel.

¶ 2 The court of appeals affirmed that part of the circuit court order denying the defendant's motion to suppress the in-court identification. The defendant seeks review of this part of the court of appeals decision. The court of appeals reversed that part of the circuit court order denying the defendant's motion to suppress the constitutionally defective lineup identification. Neither the State nor the defendant challenges this part of the court of appeals decision.¹ The court of appeals remanded the cause to the circuit court for further proceedings, and the parties agree that the cause must be remanded.

¶ 3 The only issue before this court is the admissibility of the eyewitness's in-court identification of the defendant after an identification in a lineup that violated the defendant's Sixth Amendment right to counsel. We hold that the eyewitness's in-court identification should be suppressed because the State has not shown by clear and convincing evidence that the eyewitness's in-court identification of the defendant had an "independent origin," that is, that the source of the in-court identification was the eyewitness's observation of the robber during the robbery and was independent of a lineup that violated the defendant's Sixth Amendment right to counsel. See United States v. Wade, 388 U.S. 218 (1967). Accordingly, we reverse that part of the court of appeals decision admitting the eyewitness's in-court identification.

I.

¶ 4 The facts are undisputed for purposes of this review. On December 3, 1994, Patricia Jordan, a 67-year-old white woman, was robbed at knife-point as she was working alone at a grocery store in Mt. Pleasant, WI.

¶ 5 According to Jordan, a man entered the store, walked up to the cash register where she was working and asked her for some change. Jordan was standing behind the counter, and the man was standing a couple of feet across from her on the other side. When Jordan opened the cash register to provide the change, the man pointed a knife at her, told her to leave the cash drawer open and took money from the drawer. As the robber removed the cash from the drawer, Jordan backed away about 10 feet from the cash register and hid behind a meat slicer, while continuing to watch the robber. Jordan was wearing her eyeglasses at the time of the robbery, and the store was well lit. After the robber left the store, Jordan called the police.

¶ 6 About 15 to 20 minutes after the robbery, Officer Jason Wortock of the Mt. Pleasant Police Department arrived at the store. He interviewed Jordan and took down the physical description she gave of the robber. Jordan testified that the robber was an African-American male, at least six feet tall, wearing a white golfer's cap and a tan jacket. She said that she had never seen the robber before. She described the knife he used as a tapered, single-edged knife about 12 inches long. Jordan was the sole eyewitness to the robbery and is hereafter referred to as the eyewitness. The police never recovered, by search warrant or otherwise, the knife, cap or jacket of the robber.

¶ 7 Later on the day of the robbery Officer Fulton Bell and Investigator Jayn Long showed the eyewitness six photographs of potential suspects, including one of the defendant. All the photographs were of African-American men, some with facial hair, some without. Apparently the police were uncertain at this time whether the robber had facial hair. The eyewitness did not identify the defendant or anyone else from the photo array as the robber.

¶ 8 A store surveillance camera taped the robbery in its entirety. According to the tape, the robbery lasted approximately 25 seconds. The eyewitness viewed the videotape shortly after the robbery and turned it over to Officer Wortock who viewed the videotape with several other officers, including Officer Bell and Investigator Long.

¶ 9 After seeing the videotape, Officer Bell concluded that the robber looked like the defendant with whom Bell was familiar because they had grown up in the same neighborhood. Officer Bell testified that he had seen the defendant on November 29, 1994, four days before the robbery while responding to a civil disturbance call, and had observed that at that time the defendant had full facial hair and was wearing a tan jacket and a cap. (The defendant was not involved in the civil disturbance.)

¶ 10 Based upon her observation of the videotape and her subsequent in-person observation of the defendant at the Racine County Jail where he was incarcerated on an unrelated charge, Investigator Long concluded that the defendant was the robber. Prior to the robbery, Investigator Long had not been acquainted with the defendant.

¶ 11 On January 4, 1995, the defendant was charged with armed robbery, and a public defender was appointed the defendant's counsel. Five days later on January 9, 1995, Investigator Long, with the assistance of Corporal James Stratman, staged a lineup with five African-American males, including the defendant, all of whom were approximately the same weight and age as the defendant and all of whom had facial hair. Apparently the police at this time were operating on the premise that the robber had facial hair. After initially asking another man in the lineup to step forward, the eyewitness identified the defendant as the robber.

¶ 12 The defendant's counsel did not attend the lineup, and at no time did the defendant waive his right to have his counsel present. Investigator Long and Corporal Stratman failed to notify the defendant's counsel about the lineup, saying they were unaware that the defendant was entitled to have counsel present at a post-indictment lineup procedure. The officers did not photograph the lineup, either by video or still camera.

¶ 13 The eyewitness subsequently identified the defendant at the preliminary hearing on January 24, 1995, when he was wearing an orange jail uniform and was seated next to an attorney at a table. At the preliminary hearing the eyewitness testified that she knew the robber had long sideburns but was not sure if he had a mustache or beard. When asked at the preliminary hearing why she had selected the defendant at the lineup, the eyewitness testified that she chose him, in part, because he was tall.

¶ 14 The defendant filed a pre-trial motion to suppress the lineup identification on the ground that the lineup had been improperly conducted in the absence of his counsel. He also filed a pre-trial motion to suppress the in-court identification, claiming that it was tainted by the unconstitutional out-of-court lineup and that the in-court identification did not have an origin independent of the lineup.

¶ 15 The circuit court refused to suppress the lineup identification, concluding that the police had acted in good faith and that the lineup procedure was not otherwise impermissibly suggestive. The circuit court ruled that the jury would be instructed that the defendant had been deprived of his right to counsel at the lineup.

¶ 16 The court of appeals granted the defendant leave to appeal the suppression order and ordered the lineup identification suppressed. This part of the court of appeals decision is not before us.

¶ 17 In addition, the court of appeals affirmed the circuit court decision admitting the in-court identification on the ground that the State had shown by clear and convincing evidence that an independent source existed for the eyewitness's in-court identification and that the in-court identification had not been tainted by the lineup identification.² This part of the court of appeals decision is before us on review.

II.

¶ 18 This court has not previously discussed the applicable standard of review in determining whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel. The court has, however, considered the standard of review applicable to an analogous issue of attenuation in the Fourth Amendment context. In State v. Anderson, 165 Wis. 2d 441, 447-48, 477 N.W.2d 277 (1991), this court characterized as a constitutional fact the question whether evidence should be suppressed as the fruit of a prior illegal search or whether the evidence was sufficiently attenuated so as to be purged of the taint. Adhering to the Anderson analysis, we characterize as a constitutional fact the question whether an independent source exists for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel, and we apply the standard of review ordinarily...