State v. Roberson, 2006 WI 80 (Wis. 6/30/2006)

• Citation: 2006 WI 80
• Decision Date: 30 June 2006
• Docket Number: No. 2003AP2802-CR.,2003AP2802-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. David J. Roberson, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

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2006 WI 80

State of Wisconsin, Plaintiff-Respondent, v. David J. Roberson, Defendant-Appellant-Petitioner.

No. 2003AP2802-CR.

Supreme Court of Wisconsin.

Opinion Filed: June 30, 2006.

Appeal from the Circuit Court, Milwaukee County, Elsa C. Lamelas, Judge.

REVIEW of a decision of the Court of Appeals. Affirmed. 2005 WI App 195 Reported at: 287 Wis. 2d 403, 704 N.W.2d 302 (Ct. App. 2005-Published)

For the defendant-appellant-petitioner, there were briefs and oral argument by Richard D. Martin, assistant state public defender, Milwaukee.

For the plaintiff-respondent, the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

LOUIS B. BUTLER, JR., J.

¶ 1 David J. Roberson ("Roberson") seeks review of a published decision by the court of appeals affirming both his judgment of conviction for delivery of a controlled substance (cocaine), in violation of Wis. Stat. §§ 961.16(2)(b)(1), 961.41(1)(cm)(1) and 939.05, and a decision denying his postconviction motion by the Honorable Elsa C. Lamelas, Milwaukee County. State v. Roberson, 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302. Roberson contends that his trial counsel was ineffective for failing to file a motion to suppress two out-of-court identifications of Roberson by police officers when the identifications immediately followed a warrantless entry into Roberson's home, which Roberson asserts was illegal. Roberson asks this court to reverse the court of appeals and remand the matter for an evidentiary hearing, in accordance with State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), to address whether his trial counsel provided ineffective assistance.

¶ 2 The State asserts that Roberson failed to allege sufficient facts that would have satisfied Roberson's burden of making a specific offer of proof that the suppression motion would have succeeded, and therefore failed to establish that his counsel provided ineffective assistance. According to the State, the record conclusively shows that a suppression motion would have failed because the police had probable cause to arrest Roberson before they entered his home and because the identifications made of him thereafter outside the home were admissible. In the alternative, the State contends that the warrantless entry was lawful because Roberson's mother consented to the entry, and because there were exigent circumstances to justify a warrantless entry. Finally, the State argues that Roberson could not prove prejudice, which is necessary to prove ineffective assistance of counsel, because the record conclusively shows that the subsequent in-court identifications were admissible.

¶ 3 We conclude that the in-court identifications of Roberson were properly admitted into evidence, regardless of whether the warrantless entry was illegal and regardless of whether the out-of-court identifications were inadmissible. We therefore conclude that Roberson's counsel's failure to move to suppress the out-of-court identifications did not prejudice his defense. We decline to address Roberson's challenge to the warrantless entry and out-of-court identifications immediately following the warrantless entry because exclusion of the out-of-court identifications would not alter the outcome of our analysis.¹ We therefore affirm the court of appeals.

I

¶ 4 The following facts are relevant to the in-court identification. At the time of trial, Detective Mark Wagner was a police officer with the City of Milwaukee for over ten years and was assigned to the Vice Control Division, Narcotics Unit, Rapid Enforcement Drug Offense (REDO) team. Wagner testified that at approximately noon on December 1, 2002, he was conducting a follow-up narcotics investigation in front of a liquor store on the northwest corner of 19th Street and State Street in Milwaukee, Wisconsin. While seated alone in a vehicle approximately one block from the liquor store, Wagner observed through his binoculars individuals entering and exiting the liquor store. He watched as two males left the side of a gray vehicle, approached other individuals entering and exiting the liquor store, and engaged in hand-to-hand transactions of some sort with those individuals. Wagner suspected the two men were selling drugs, and continued to observe their activities for approximately 20 minutes.

¶ 5 Wagner contacted Officer Michael Terrell, who was working undercover as part of the same REDO team, and informed him that there were two males that were possibly dealing narcotics and that he would like Terrell to attempt to purchase narcotics from them. He informed Terrell that the two individuals were black males and were wearing dark jeans and black jackets with gray stripes down the sleeves, and that one subject had longer wavy black hair with a headband around his ears, while the other one's hair was braided. Wagner directed Terrell to attempt to buy drugs from the two men.

¶ 6 After Wagner radioed Terrell, the two men entered the gray vehicle, which was parked on State Street facing westbound. The vehicle backed onto 19th Street and Wagner lost sight of the vehicle. When Terrell arrived on the scene, the two men had already left. According to Terrell, he approached a male, later identified as Lindsey Edwards, and indicated that he was looking to purchase cocaine.² Edwards walked Terrell to a gray vehicle. The passenger side door of the gray vehicle opened as Terrell approached the vehicle. He saw a black male with wavy black hair and wearing a black jacket, matching the description that Wagner had given him, sitting on the passenger side of the vehicle. Edwards initiated contact with the man in the passenger seat of the vehicle, and then walked away. Terrell told the man in the passenger seat he had $25, and the man agreed to sell him three corner cuts of cocaine. Terrell gave him the $25³ and Terrell was given the cocaine. According to Terrell's testimony, the exchange took approximately 20 seconds.

¶ 7 Upon leaving the scene of the buy, Terrell radioed Wagner, informing him that he bought cocaine from a man in the passenger side of a gray vehicle, that the man seated in the passenger seat had black wavy hair and was wearing a black and gray jacket, and that the car was parked between 18th and 19th Streets in a parking lot. This radio communication occurred approximately five minutes after Wagner had lost sight of the vehicle. Wagner notified the other officers in the area that Terrell had purchased narcotics from the suspects, who were in a gray, two-door vehicle between 18th and 19th Streets.

¶ 8 Shortly thereafter, the vehicle again came into Wagner's sight and he observed it make a series of turns, eventually parking in front of a residence approximately two blocks from where Wagner was parked. Wagner watched two males exit the vehicle and run onto the porch of the house located at 1011 North 21st Street. Wagner testified that he observed the men look around as they went up the porch, as if they had spotted the police. However, he testified that he did not know if they had seen the police. Wagner directed several officers involved in the investigation to establish a perimeter around the house. Wagner watched the front of the house and Terrell watched the back. Officers Mitchell Ward and Bodo Gajevic approached the front door and knocked on it. Roberson's mother, Cecilia Roberson, who also resided at the home, answered the door.

¶ 9 The officers entered Ms. Roberson's home and brought five men out of the house and onto the porch for Wagner to attempt to make an identification. It is unclear whether Ms. Roberson granted the police permission to enter her home. Wagner recognized one of the individuals as the driver of the car, but did not see the man who had been in the passenger seat among the five men on the porch. Terrell was also asked to view the five individuals brought outside the home to make an identification. Terrell did not recognize any of the several individuals originally brought to the porch.

¶ 10 According to Ward, Ms. Roberson then consented to a search of her house for more subjects. Ms. Roberson testified that she did not give the police permission to enter her home,⁴ and that the officers entered her home when she turned her back to them to see if there was anyone else in the house.

¶ 11 Several police officers reentered the home, found an individual, later identified as Roberson, in an upstairs bedroom and brought him onto the porch. On the porch, Detective Wagner positively identified Roberson as the man in the gray vehicle who he suspected of selling drugs outside the liquor store. Terrell also identified Roberson as the person from whom he had purchased the three corner cuts of cocaine. These identifications took place approximately 10 to 15 minutes after Terrell had purchased the cocaine.

¶ 12 Police officers searched the home but did not find any cocaine or the recorded bills used by Terrell for his drug purchase. The police found numerous jackets that were similar to the jacket worn by the man observed by Wagner outside the liquor store and by the man from whom Terrell purchased the cocaine. However, the police did not take any of these jackets into evidence. In addition, the police did not search the gray vehicle parked outside the residence from where Roberson was detained.

¶ 13 Roberson was arrested⁵ and charged with delivery of a controlled substance (cocaine), in violation of Wis. Stat. §§ 961.16(2)(b)(1), 961.41(1)(cm)(1) and 939.05.⁶

¶ 14 A jury trial was held on February 10-13, 2003. The State presented no physical evidence linking Roberson to the crime and relied entirely on the identifications of Roberson by Wagner and Terrell. Wagner identified Roberson as one of the two individuals he observed for approximately 20 minutes standing by the gray vehicle outside the liquor store, and as the person who entered the passenger side of the...