Wright v. State, s. S

• Decision Date: 03 April 1970
• Docket Number: Nos. S,s. S
• Citation: 175 N.W.2d 646,46 Wis.2d 75
• Parties: Angus M. WRIGHT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Bruce E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 125--128.
• Court: Wisconsin Supreme Court

Page 646

175 N.W.2d 646

46 Wis.2d 75

Angus M. WRIGHT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Bruce E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Nos. State 125--128.

Supreme Court of Wisconsin.

April 3, 1970.

On the afternoon of September 26, 1967, four armed men held up the American Motors Credit Union in Milwaukee. at the time of the robbery, there were four employees of the credit union present: Anthony Lemberger, Elizabeth Hornik, Martha Crabbe and Betty Paul.

On October 7, 1967, the plaintiffs in error, hereinafter termed defendants, were arrested in Sandusky, Ohio. On October 8, witnesses Lemberger and Hornik identified defendants as involved in the robbery, picking their pictures out of a group of fifteen or more pictures. On October 9, 1967, witness Crabbe accompanied two police officers to Sandusky, Ohio, and, following a lineup there, identified defendants as two of the armed robbers. On October 10, 1967, complaints and warrants were issued against defendants, charging them with armed robbery in violation of sec. 943.32(1)(b) and (2), Stats. On October 11, 1967, defendants were returned to Milwaukee, arriving at police headquarters at approximately 3 p.m. At approximately 7 p.m. on the same day, lineups were held at the police headquarters. Witnesses Lemberger and Hornik identified the defendants as two of the robbers. Prior to the lineups, Wright gave a confession, admitting participation in the holdup. Following the lineup, Jones gave a confession.

Prior to trial, a hearing was conducted concerning objections to lineup procedures and in-court identifications. The trial court held witnesses Lemberger and Hornik could testify and identify defendants. During the trial, a hearing was held on the admissibility of defendants' confessions. The trial court held Wright's confession admissible, Jones' confession inadmissible. On February 23, 1968, the jury returned verdicts of guilty. The trial court found the defendants guilty and sentenced each to an indeterminate term of fifteen years in prison. On July 23, 1969, post-conviction motions were denied. Defendants secured writs of error directed to the judgments of conviction and orders denying post-conviction motions.

John B. Werra, Milwaukee, for plaintiff in error Angus M. Wright.

Charles Rowan, Milwaukee, for plaintiff in error Bruce E. Jones.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

ROBERT W. HANSEN, Justice.

While a number of challenges are made by defendants to their convictions on charges of armed robbery, the principal issues raised deal with the admission of certain testimony at their trial. We deal first with the objections to the police lineups at which the defendants were identified as perpetrators of the crime. Here the trial court conducted a pretrial hearing to determine the lineup issues raised, much as would be done on a challenge to the admissibility of a confession. ¹ When an objection is made to an in-court identification allegedly based on a lineup claimed to be defective, the holding of such Goodchild-type hearing greatly aids a reviewing court in considering the issues raised and findings made.

THREE LINEUPS.

Three police lineups were conducted in this case, one in Ohio and two in Milwaukee. The one in Ohio involved witness Martha Crabbe. The trial court found the Ohio lineup to have been improperly conducted, and barred any in-court identification of defendants by witness Crabbe. No issue is raised on this appeal concerning such trial court holding, and no comment on it is required. There is no connection between the lineup identification made in Ohio by witness Crabbe and the in-court identifications of witnesses Lemberger and Hornik. Two separate police lineups were conducted at police headquarters in Milwaukee. Both witness Lemberger and witness Hornik identified the defendants as two of the robbers on the first lineup. It is these two lineups and the in-court identifications by witnesses Lemberger and Hornik which are relevant to the issues raised on this appeal.

COUNSEL REQUIRED.

We deal here with two Milwaukee lineups, both conducted after the issuance of a complaint and warrant, but before the filing of the information as well as before the trial. The attorney general points out that the Wade and Gilbert cases, ² in which the United States Supreme Court established the right to presence of counsel at lineups, dealt with post-indictment lineups. In Wade, an indictment had been filed, counsel appointed for the defendant and the lineup then held without notification to such counsel. In Gilbert, an indictment had also been filed and there was a similar failure to notify defendant's counsel of the failure to notify defendant's counsel of the post-indictment aspect of the lineup is clear in both Wade ³ and Gilbert. ⁴ While Wade and Gilbert have been referred to without mention of the post-indictment nature of the lineups involved, ⁵ it is at least clear that what was before the court in those cases was a post-indictment lineup, and this factor was specifically mentioned, in fact, stressed by the court, and subsequently repeated. ⁶

The attorney general argues that the equivalent of filing an indictment under the federal and California procedures involved in Wade and Gilbert, is the filing of an information under the Wisconsin procedure. We do not agree. A greater degree of equivalency exists between the filing of the indictment and the issuing of the criminal warrant following the signing of the complaint and the holding of a hearing before a neutral magistrate. After the issuance of the warrant, as after the filing of the indictment, it is clear that the matter has moved from an investigatory stage to an accusatorial one. The United States Supreme Court in Wade and Gilbert dealt with the post-indictment fact situation before it. We will do the same, ruling here only that a post-warrant lineup in Wisconsin is substantially equivalent to a post-indictment lineup in the federal system. Since the lineup here did take place after the issuance of the warrant, the presence of counsel, or, in the alternative, waiver of counsel, was required.

COUNSEL PRESENT.

The trial court found that both defendants were represented by counsel at the lineups conducted by the Milwaukee police. Such finding is not to be upset on appeal unless contrary to the great weight and clear preponderance of the evidence. ⁷ The issue of credibility as to conflicting testimony on the issue involved is for the trier of fact to determine. ⁸ The evidence at the hearing established that the police did inform the defendants of their right to have counsel present at the time of the lineup. One of the defendants then called a Milwaukee attorney. He was unable to attend, but sent one of his associates to be present at the lineup. This attorney testified that he arrived on the scene, talked to the defendants, and then observed the lineup. He testified that he spoke to both defendants before the lineup, informed them of their rights before the lineup was conducted, discussed fees, and spoke to both defendants after the lineup. Another associate of the attorney also came down to the police station, and apparently observed the second lineup. A police officer testified that he allowed defendant Wright to phone an attorney, that both defendants had refused to stand in the lineup until the attorney got there, that the police honored this demand, and that there was an attorney present at both lineups. It is true that defendant Wright testified that the attorney left before the lineups, and that defendant Jones testified that he never did have the chance to talk with an attorney before the lineup and that the attorney showed up after the lineup. The trial court was not required to disbelieve the testimony of both the attorney and the police officer that counsel was present at both lineups. The trial court finding that counsel was present stands.

EFFECTIVENESS OF COUNSEL.

The claim here that the representation by counsel at the time of the lineups was 'ineffective' requires a review of the role of an attorney at the time and place of a lineup. The presence of counsel at the lineup is intended to make possible the reconstruction at the time of trial of any unfairness that may have occurred at the time of the lineup. ⁹ The important purpose to be served is that of observer. A police lineup is not a magisterial or judicial hearing at which a record is made and objections to procedures can be entered. The lawyer is present as eyes and ears for the accused, not as interrogator or cross-examiner. It is his presence, not his participation, that is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself. ¹⁰ Counsel present at the time of the lineup in this case testified that he did not object to the lineup because he believed it to be fair. He was not required to object, when he had no valid objection to make and when, as always would be the case, there was no judge or magistrate present to rule on the propriety of his objection. His function, as observer, was to assist the court in reconstructing the circumstances of the lineup at the time of trial. That is what he did, and that is all that he was required to do. There is no basis for any claim of ineffectiveness of counsel.

COUNSEL AT TRIAL.

Spelling out the role and reason for presence of counsel at the time of the police lineup makes clear the unsoundness of the defendants' contention that the attorney who was present at the lineup must also be the attorney who conducts the trial. The presence of an attorney at the lineup, whether or not such attorney eventually represents the defendant at the time of trial, is all that is required to aid in reconstructing the circumstances of the lineup at the...