State v. Waites

• Decision Date: 08 November 1990
• Docket Number: No. 89-0520-CR,89-0520-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald WAITES, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 206

462 N.W.2d 206

158 Wis.2d 376

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald WAITES, Defendant-Appellant-Petitioner.

No. 89-0520-CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 1990.

Decided Nov. 8, 1990.

Lori L. Schultz, argued, Robert M. Courtney and Courtney, Pledl & Molter, S.C., on brief, Milwaukee, for defendant-appellant-petitioner.

James M. Freimuth, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals filed October 18, 1989, which affirmed a judgment of conviction entered by the circuit court for Kenosha county, Judge Jerold W. Breitenbach. 152 Wis.2d 774, 450 N.W.2d 255. The defendant-appellant-petitioner, Ronald Waites, appeals his conviction on two counts of delivery of a controlled substance (cocaine), in violation of secs. 161.16(2)(b) and 161.41(1)(c)(1), Stats.

The issues are: (1) Did the circuit court abuse its discretion when it failed to give the more detailed version of Wis.J I--Criminal 141 (1987)?; ¹ (2) Should out- of-court and in-court identifications of Waites by a police officer be suppressed because the police officer had viewed a photograph of Waites before the crimes?; and (3) Should this case be remanded for further proceedings on the ground that the State used one of its peremptory strikes discriminatorily in striking the lone black individual from a jury panel?

We first conclude that the circuit court did not abuse its discretion by giving the limited version of Wis.J I--Criminal 141. ² The limited version, in combination with other instructions and evidence presented to the jury during the trial, sufficiently focused the jury's attention on the issue of identification. We next conclude that neither the police officer's in-court nor out-of-court identifications are suppressible, because his viewing of the defendant's photograph was not impermissibly suggestive. Finally, we conclude that the defendant waived his right to appeal his conviction based on an allegedly discriminatory peremptory strike. We will not exercise discretion to consider a Batson ³ claim because the State had legitimate reasons to strike the lone black individual from the jury panel, and the defense counsel was justified in not objecting to the strike.

The relevant facts are as follows: John Schrandt, an undercover officer with the Kenosha Police Department, purchased cocaine from Ronald Waites on two separate occasions. Before the first transaction on May 29, 1987, Detective Albert Aiello showed a photograph of Waites to Officer Schrandt, identifying Waites as a potential drug dealer. Officer Schrandt located Waites in an older, yellow Mercedes car with a female passenger at the Renault Apartments. After giving Waites $500.00, Schrandt followed Waites into the apartment complex and waited in the hallway while Waites went into Apartment 3. Waites returned with a packet of cocaine which he handed to Schrandt. In his written police report, Officer Schrandt described On June 10, 1987, Officer Schrandt returned to the same apartment and again purchased cocaine from Waites.

Waites as a black male, in his thirties, 5' 10"' to 11"' tall and weighing 170 pounds.

At Waites' preliminary hearing on December 10, 1987, Officer Schrandt identified Waites in the courtroom and described the two transactions. He also testified on cross-examination that he had refreshed his memory of these events by reading his police reports prior to the preliminary hearing.

At Waites' trial in February 1988, Officer Schrandt testified that he had seen Waites at the Renault Apartments before the first drug transaction and knew him as "Ya-ya." He also testified that prior to the event Detective Aiello had shown him a photograph of a potential investigative target on the night of the first transaction. The assistant district attorney then showed Officer Schrandt the photograph which Schrandt identified as a photograph of Waites. Later in his testimony, Officer Schrandt identified Waites with absolute certainty as the individual who sold cocaine to him. The defense counsel did not object to the testimony concerning the photograph or to the in-court identification of Waites. The defense counsel also did not object to the admission of the photograph into evidence.

Officer Schrandt testified that the first transaction lasted approximately fifteen minutes, the second one less than five minutes. He also testified that, as an undercover officer, he had purchased cocaine from other individuals at least twenty times prior to his first transaction with Waites.

Three witnesses testified in Waites' defense. Susan Waites, his wife, testified that she first met Waites in July 1987 and married him in November 1987. She further testified that in May and June 1987 she and her son had lived in Apartment 3 of the Renault Apartments. C.J. Franklin, Waites' brother, testified that Waites had worked regularly in his store in May and June 1987. Franklin also testified that he did not keep regular records and did not have an independent recollection of Waites being at his store on May 29 or June 10, 1987. Finally, Waites testified that he worked at his brother's store from 3:00 or 4:00 p.m. until 10:00 p.m. on those dates and did not sell drugs to anyone on either of those dates. He testified that he was 6' 2"' tall and weighed 158 pounds. He also testified that he first met Susan Waites in July 1987, and was not at the Renault Apartments in May or June 1987.

On appeal, the court of appeals held that the circuit court had properly exercised its discretion in giving the jury instructions in this case. The court of appeals also held that Waites had waived any objection to Officer Schrandt's in-court identification of Waites. The court rejected his claim that his due process rights were violated by the out-of-court identification of Waites (i.e., when Officer Schrandt located and approached Waites on May 29, 1987 at the Renault Apartments after looking at his photograph), on the ground that he was not entrapped, and there were no precedents that prohibited officers from using a photograph to identify a person who is the target of a criminal investigation. The court of appeals did not address the issue of the peremptory strike because the defendant first raised the issue in this court.

Waites requested the more detailed jury instruction on identification, Wis.J I--Criminal 141, on the ground that the identity of the criminal was a major issue in the case. The first question before the court is whether the circuit court erred in refusing to give the more detailed instruction. We hold that it did not err because: (a) circuit courts are not required, per se, to give the more detailed instruction, and (b) the circuit court did not abuse its discretion in refusing to give the more detailed instruction in this case.

Wisconsin J I--Criminal 141 was amended in 1987 by the Criminal Jury Instructions Committee. The bracketed paragraphs were added "in response to numerous inquiries from judges who felt the brief version of JI-141 was not adequate in a case where the reliability of an eyewitness We have consistently held that a circuit court has wide discretion as to instructions. See Hampton v. State, 92 Wis.2d 450, 463, 285 N.W.2d 868 (1979); State v. Williamson, 84 Wis.2d 370, 393, 267 N.W.2d 337 (1978); State v. Lenarchick, 74 Wis.2d 425, 455, 247 N.W.2d 80 (1976). We recognize the dangers inherent in identification testimony when the identity of the criminal is an important issue in a case. In such an instance, we recommend the use of the more detailed instruction to avoid subsequent challenges to the adequacy of such jury instructions. We do not, however, require that the more detailed instruction be given in all situations where the accuracy of the eyewitness identification is an issue. Such a holding would remove some of the circuit court's discretion in giving instructions. Rather, we conclude that the circuit court should determine whether to give the more detailed instruction, basing its decision on factors such as the significance of the identification issue, the nature of other instructions and the danger of misidentification. This determination is not subject to reversal unless the circuit court abuses its discretion.

                identification was a substantial issue."   Wis.J I--Criminal 141 n. 1.  The Committee compared this instruction to a more extensive instruction recommended by a federal appeals court in United States v. Telfaire, 469 F.2d 552, 558-59 (Appendix) (D.C.Cir.1972).  While the Telfaire court strongly urged the use of this instruction when identification was a substantial issue, Wisconsin does not have a per se rule requiring the use of such an extended instruction when identification is an issue
                

We conclude that the circuit court did not abuse its discretion in this case. Although the circuit court stated a reluctance to use the more detailed instruction under any circumstances, other evidence in the case supports its use of the limited version of the instruction.

In explaining why he was not using the more detailed instruction, the circuit court judge stated: "[i]t's up to the jurors to determine the criterion for some, not some judges, because there is nothing in the law. That's why I don't give it. If you [defense counsel] have some case law in that regard, I certainly will." He further stated, "these particular factors [those included in the more detailed instruction] are certainly something that may be relevant evidence, but I don't think any particular evidence has to be highlighted to the jury."

We stated, in Fletcher v. Eagle River Hospital, 156 Wis.2d 165, 177, 456 N.W.2d 788 (1990) (citing McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512 (1971)), "discretion must be demonstrably exercised by the circuit court or it will be deemed an abuse of discretion." A definitive statement...