State v. Roberson

• Decision Date: 03 December 2019
• Docket Number: No. 2017AP1894-CR,2017AP1894-CR
• Citation: 389 Wis.2d 190,2019 WI 102,935 N.W.2d 813
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Stephan I. ROBERSON, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

389 Wis.2d 190

935 N.W.2d 813

2019 WI 102

STATE of Wisconsin, Plaintiff-Appellant,

v.Stephan I. ROBERSON, Defendant-Respondent-Petitioner.

No. 2017AP1894-CR

Supreme Court of Wisconsin.

Oral Argument: October 6, 2019

Opinion Filed: December 3, 2019

For the defendant-respondent-petitioner, there were briefs filed by Suzanne Edwards and the Law Office of Suzanne Edwards, Dodgeville. There was an oral argument by Suzanne Edwards.

For the plaintiff-appellant, there was a brief filed by Donald V. Latorraca, assistant attorney generals, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Donald V. Latorraca.

An amicus curiae brief was filed on behalf of The Innocence Project, Inc., and the Wisconsin Innocence Project by Keith A. Findley and Wisconsin Innocence Project; with whom on the brief is Sarah K. Grossnickle and Whitney Wester, Houston, Texas, and Alyssa Musante, Los Angeles, California.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review an unpublished decision of the court of appeals¹ reversing the circuit court’s² suppression of the victim’s identification of Stephan I. Roberson because the identification began with law enforcement showing a single Facebook photo to the victim.

¶2 Roberson argues that the circuit court correctly granted his motion to suppress the identification evidence on the ground that the police utilized an unnecessarily suggestive procedure, which violated his due process rights under Article I, Section 8 of the Wisconsin Constitution as explained in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.

¶3 The State urges us to overturn Dubose, and return to our past practice of following decisions of the United States Supreme Court in regard to criteria that are necessary to accord due process in eyewitness identifications. We agree with the State. Dubose was unsound in principle. Therefore, we overturn Dubose and return to "reliability [a]s the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; see also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Due process does not require the suppression of evidence with sufficient "indicia of reliability." Perry v. New Hampshire, 565 U.S. 228, 232, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012).

¶4 Accordingly, "a criminal defendant bears the initial burden of demonstrating that a showup was impermissibly suggestive." State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995) (citing State v. Mosley, 102 Wis. 2d 636, 652, 307 N.W.2d 200 (1981) and Powell v. State, 86 Wis. 2d 51, 65, 271 N.W.2d 610 (1978) ). If a defendant meets this burden, the State must prove that "under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive." Wolverton, 193 Wis. 2d at 264, 533 N.W.2d 167 (quoting Brathwaite, 432 U.S. at 106, 97 S.Ct. 2243 and citing Biggers, 409 U.S. at 199, 93 S.Ct. 375 ). We conclude that the State has satisfied its burden here.

¶5 Therefore, we affirm the court of appeals and remand to the circuit court for proceedings consistent with this opinion.

I. BACKGROUND

¶6 The State charged Roberson with first-degree reckless injury, contrary to Wis. Stat. § 940.23(1)(a) (2017–18).³ The charge stemmed from an incident where Roberson, allegedly, shot C.A.S. over a drug deal that went wrong.

¶7 C.A.S., a Caucasian male, claims to have met an African American male at a Walmart toward the end of January in 2017. At that time, C.A.S. knew him only as "P." P tapped C.A.S. on the shoulder and asked C.A.S. if he "smoked." After C.A.S. responded "yeah," P asked C.A.S. to obtain a "bag" of marijuana for him. C.A.S. indicated he could. The two drove to get marijuana and then drove back to Walmart and exchanged numbers. This first encounter lasted approximately a half an hour.

¶8 The following day, C.A.S. was supposed to bring P more marijuana. For whatever reason, C.A.S. was unable to secure any, and C.A.S. contacted P explaining his failure.

¶9 The next day, C.A.S. texted P to tell him he could get marijuana. The two arranged for P to pick up C.A.S. after P finished work. Sometime after 7:00 p.m., P picked up C.A.S. and C.A.S.’s brother and sister, and the four drove to secure the marijuana. The group then drove back to C.A.S.’s residence. P came inside the house, where he asked C.A.S. to sell the marijuana for him. C.A.S. agreed. This second encounter lasted approximately a half an hour.

¶10 P instructed C.A.S. to sell the marijuana in "eighths," meaning an eighth of an ounce at a time. However, C.A.S. had a potential buyer, who was interested in a half an ounce, worth approximately $180. C.A.S. went to sell the half an ounce, and the potential buyer robbed him at gunpoint. C.A.S. texted P, explaining what happened. A few minutes later, P picked up C.A.S., who had been walking on the road.

¶11 The two drove to a dog park where the situation escalated. P took out a gun and fired a shot past C.A.S.’s head. C.A.S. punched P in the face, and then P pointed his gun at C.A.S. and shot him in his leg. P yelled, "Why’d you make me shoot you?" P then asked C.A.S. if he was going to tell anyone. C.A.S. said no and asked P to drive him home. P drove C.A.S. to the residence of D.D., a friend of C.A.S. When C.A.S. got there, he used two belts to create a makeshift tourniquet. He then "got high." This third encounter lasted between an hour and a half and two hours. C.A.S. did not contact law enforcement because he was subject to an outstanding warrant.

¶12 C.A.S. spent between two and a half to three hours with P over a short period of time. The evidence does not indicate that at any point during the encounters C.A.S.’s mental state was impaired by drugs or alcohol.

¶13 Investigator Nathan Reblin learned that C.A.S. had been injured and was cared for at D.D.’s residence. He began trying to locate C.A.S. A confidential citizen witness gave Reblin a cell phone that P had given to C.A.S., apparently so the two could communicate. C.A.S. was logged into the cell phone’s Facebook app. The cell phone had text messages between C.A.S. and a person identified in the messages as "P." Reblin noted the phone number of the contact and searched for it on Facebook. The search yielded one result: a profile for Roberson.

¶14 Law enforcement obtained a warrant to search D.D.’s residence. They found what they believed to be blood on some boxer shorts. They also found a chair in the basement and a quilt that both appeared to have blood stains. They did not find C.A.S.

¶15 Later, C.A.S. was taken into custody on a probation hold. However, before he was taken to the Wood County jail, he was taken to a hospital for what appeared to be an old gunshot wound to his leg.

¶16 About two weeks after the shooting, Reblin and his partner interviewed C.A.S. at the jail. The interview was videotaped, and the circuit court admitted a DVD of the interview into evidence.

¶17 C.A.S. told Reblin and his partner what transpired. Reblin asked C.A.S. if he would be able to identify P from a photograph. He responded, "Possibly, I mean, I don’t know, black people kinda" and made a shaking movement with his right hand that indicated uncertainty. Reblin’s partner brought up a photograph of Roberson from Facebook on his phone, which he showed to C.A.S. who immediately began nodding his head up and down. After the non-verbal indication that the photograph was P, Reblin asked, "That’s him?" C.A.S. responded, "yup." Reblin then asked, "100%?" C.A.S. replied, "100% yeah."

¶18 Subsequently, Roberson moved to suppress C.A.S.’s out-of-court identification on the ground that the investigators used a single photograph as opposed to a photograph array. At the suppression hearing, C.A.S. testified that P looked similar on all three occasions. He had either "dreadlocks" or "cornrows" and had on a sweatshirt with work pants.

¶19 The circuit court generally noted the same historical facts as are set out above. In particular, the circuit court said:

[C.A.S.] is clearly unsure of the characteristics of African Americans. He states the same. Objectively, it is hard to convince ones self that [C.A.S.] wouldn’t have identified any picture of an African American male as "P" if Reblin indicated that it was a picture of "P." The process is shaky, and the victim making the identification is likewise shaky, so the [c]ourt lacks confidence that the identification of "P" by [C.A.S.] is not a result of showing the single photo to him. As such, [C.A.S.]’s identification of the defendant’s photo and his later identification in court, tainted by his exposure to that photo, are suppressed.

¶20 Although C.A.S. made a comment and a gesture indicating that he was unsure about identifying African American people, the circuit court noted that, "The chances that a misidentification occurred are unclear." The circuit court also said, "This [c]ourt believes [C.A.S.] has a sufficient basis to identify ‘P’ from those meetings."

¶21 Nevertheless, the circuit court granted Roberson’s motion to suppress and also held that C.A.S. could not identify Roberson in court because the initial identification tainted any subsequent identification.

¶22 The State filed an interlocutory appeal, arguing the circuit court improperly suppressed the out-of-court identification and that even if the out-of-court identification was improper, the circuit court erroneously used that as a basis for excluding a subsequent in-court identification. The court of appeals reversed the circuit court. State v. Roberson, No. 2017AP1894-CR, unpublished slip op., 2018 WL 4846813 (Wis. Ct. App. Oct. 4, 2018) (per curiam). The court of appeals reasoned that a single photograph is not a showup and that any decision to extend Dubose must be left to this court. Id., ¶¶10–17.

¶23 We granted Roberson’s petition for review and now affirm the court of appeals, albeit on different grounds.

I...