Opinion
No. State 17.
Argued March 28, 1973. —
Decided May 1, 1973.
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Phillip Berman of Milwaukee.
For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
The plaintiff in error (hereinafter defendant) was convicted on March 19, 1970, following a plea of not guilty and a trial before the court on one count of injury by conduct regardless of life, contrary to sec. 940.23, Stats. On April 27, 1970, the trial court sentenced defendant to an indeterminate term of not more than ten years at Waupun.
The action was commenced by the filing of the criminal complaint on August 13, 1969, alleging the defendant committed the crime charged on August 30, 1968. Prior to trial, on October 31, 1969, defendant made a motion to suppress all evidence of his identification on the grounds that the procedure used denied him due process of law. On November 10, 1969, the court denied the motion without prejudice. The court stated the matter was premature and would be subject to full scrutiny at trial. On December 17, 1969, trial was held. Defendant made his objections again and the court noted them on the record. The court stated that to save a repetition of testimony, and since it was a trial before the court without a jury, it would rule on the matter after the testimony was completed.
The victim, Rita Fagan, gave the following testimony at trial after making an in-court identification that defendant was her assailant. On August 30, 1968, Rita had a beauty shop appointment in the Clark Building located in Milwaukee. She parked her car on the third floor of the ramp. After the appointment she left the shop to return to her car. This was about 6:45 p.m. She got into the car and was about to start it when the door on the driver's side was suddenly pulled wide open. She turned around and saw "this young man [the defendant]" standing there. He stood there with a weapon in his hand that resembled an ice pick. It had a pointed end and a yellow handle. The defendant said "get out" of the car. She stepped out and backed away from him. He said "keep moving back toward that wall." As she was stepping back she asked, "what do you want?" He said, "just keep quiet and move back." She started to open her mouth to scream and he yelled, "lady, if you scream, I'll kill you." She started to scream. He said, "why you . . ." and started stabbing her. He stabbed her first in the chest. She put up her hand to ward off more blows and turned around to move away. He then began stabbing her in the back. Throughout this she continued to scream. After stabbing her six or seven times in the back he came around in front of her and while facing her he stabbed her in the head. He then turned around and ran away. She observed him going out an exit door. She then went down to the attendant's office and asked for an ambulance and the police. She was taken to the hospital and later gave the police a description of her assailant.
Several times during the course of the year the police showed her groups of photographs of individuals in an effort to identify the assailant. Throughout this interval, but prior to the August 13, 1969, in-person identification, Rita, by herself and not with other victims of similar crimes, looked at the pictures. The police never made any hints or suggestions which would influence any identification. During this period, on August 4, 1969, the defendant was arrested without a warrant. The police took him to the detective bureau at the Safety Building. There they questioned, fingerprinted and took pictures of him. They then let him go. On August 5th (the next day), he was arrested by the police and again fingerprinted and had more pictures taken. He was then given Miranda warnings and questioned about two attempted rape charges. He confessed to these charges and later was convicted following a plea of guilty at trial. On August 12th, the police brought about a dozen pictures to Rita's home. Of the persons portrayed in the photographs, she picked out the defendant's picture. As to the exact manner and way the photographic identification took place, the record reveals the following:
" Q. Mr. Hodan: [assistant district attorney] Will you describe the manner in which you were asked to view these pictures on August 12, 1969?
" A. [Rita Fagan] The detective brought some pictures out, about a dozen pictures, and they simply asked me to take a look at these and see if anyone of the pictures was a picture of the man who had attacked me. I had done this before, and it was just another instance where was to look at pictures.
". . .
" Q. And you indicated from those photographs you picked out a picture of this defendant, Michael William Rozga?
" A. Yes, I did pick his picture out.
" Q. Did the detectives in any manner suggest or indicate this defendant's picture as being the one that you were to pick out?
" A. No, they indicated nothing. They just handed me a batch of pictures and asked me to look through them and see if any of them were a picture of the man that attacked me.
" The Court: How many pictures of him were in that pack of 12?
" A. There was only one picture in there, that I can recall.
" Mr. Hodan: Now, prior to this date that you were just testifying about, have you ever seen a picture of this defendant, Michael William Rozga?
" A. No, I had never seen his picture before."
On August 13th the defendant was taken to the district attorney's office in handcuffs. His parents, his trial counsel, the assistant district attorney and several police officers were present. Rita was called to the office to make an identification. Prior to this day the only other time she saw the defendant in person was the day of the attack. When she arrived at the office she waited in the hall for about a half hour. While in the hall she had no conversation with anyone as to the identification of the defendant. As she was sitting in the hall she told Officer O'Brien that "if I am positive I will identify him. But, I said `if there is any doubt in my mind, I don't want to do it. . . .'" She added that she did not know if she would recognize him until she saw him in the room. Just before entering the room one of the officers told her that they had a suspect and he was there in the room to see if she could identify him and that he, the defendant, said he had committed such a crime. When she entered the room she was asked if the defendant was the one who stabbed her. When she first looked at the defendant she could not get a good view of him because she only saw his side view and he was sitting down looking at the floor. She asked him to look up at her. When he did she said, "yes, he's the one, I remember his brown eyes."
At trial Rita was intensively examined on direct, on cross, on redirect and recross with respect to these three identifications. It should be noted that the record is silent as to whether the police used the pictures taken on August 4th or August 5th for the August 12th identification.
On March 19, 1970, the court, after reviewing all the testimony and submitted briefs, overruled the objections to the identification of the defendant and found him guilty as charged.
The defendant obtained a writ of error to review the judgment.
Defendant contends that the in-court identification by Rita was tainted by an improper pretrial photographic and one-man lineup identifications.
The practice of showing suspects singly to persons for the purpose of identification and not as part of a lineup is usually questioned. Stovall v. Denno (1967), 388 U.S. 293, 302, 87 Sup. Ct. 1967, 18 L.Ed.2d 1199; and Foster v. California (1969), 394 U.S. 440, 89 Sup. Ct. 1127, 22 L.Ed.2d 402. The reason is that such identifications are deemed to be unfair because the atmosphere is highly suggestive and conducive enough to cause an irreparable mistaken identification. This is also true to some extent with photographic identifications. The improper employment of such photographs by the police may cause the identifying witness to err and lead to a misidentification. Further, regardless of how the misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen. This thereby reduces the trustworthiness of a subsequent lineup or courtroom identification. Despite these hazards the need for both types of identification is at times necessary. Photographic identification is necessary in order to aid and effectuate criminal law enforcement ". . . from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. . . ." Simmons v. United States (1968), 390 U.S. 377, 384, 88 Sup.Ct. 967, 19 L.Ed.2d 1247. Showing a suspect singly is necessary in situations where the usual lineup procedures are inadequate or simply cannot be employed, Stovall v. Denno, supra; for example, when a witness is seriously injured and about to die in a hospital. In such cases time crucial and the only feasible means of identification is to bring the accused to the witness. Therefore, a claimed violation of due process of law because of a one-man lineup or showing photographs depends on ". . . the totality of [the] surrounding circumstances. . . ." As stated in Foster, Stovall and Simmons, each case must be considered on its own facts and it is only a denial of due process of law when the conduct of the identification procedures are so impermissibly and unnecessarily suggestive and conducive as to give rise to a very substantial likelihood of irreparable misidentification. This court is in accord with this doctrine. State v. Brown (1971), 50 Wis.2d 565, 185 N.W.2d 323; Zdiarstek v. State (1972), 53 Wis.2d 420, 192 N.W.2d 833; Wright v. State (1970), 46 Wis.2d 75, 175 N.W.2d 646; and State v. Biastock (1969), 42 Wis.2d 525, 167 N.W.2d 231.
The defendant argues that the photograph used in the August 12th identification violates his fourth amendment rights under Davis v. Mississippi (1969), 394 U.S. 721, 89 Sup.Ct. 1394, 22 L.Ed.2d 676. In Davis, the United States Supreme Court held that the fourth amendment applies to involuntary detentions occurring at the investigatory stage as well as the accusatory stage. The court said that illegally detaining one for the "sole purpose" of obtaining fingerprints violates the individual's fourth amendment rights, and that evidence of the fingerprints so taken was inadmissible in a state court by virtue of the fourteenth amendment. By analogy defendant argues that the August 4th photographs fall within the meaning of Davis. There is nothing in the record to show that the August 4th photographs were ever used at the August 12th identification. Such photographs were never introduced into evidence, nor does Rita's testimony imply that such photographs were used. Other photographs of the defendant were also taken when he was legally arrested. The point is that the photographs used could have been procured from many sources. The defendant maintains though that it is the state's burden to prove that the August 4th photographs were not used under the doctrines of State v. Brown, supra. This burden did not exist. The instant case was tried before the Brown decision, which was prospective in application and not retroactive. Even if Brown was applicable, the case is still of no help because before the burden of proof is cast upon the state the defendant must prove the illegality of pretrial identifications. The state then only has to prove the in-court identification is of independent origin and untainted by the photographic identification. The defendant maintains that an inference of an improper photographic identification exists in the record. The defendant did testify that such photographs were taken, but without some showing that the August 4th and August 12th events are somehow connected the inference fails and only conjecture and speculation are left. Further, the lack of evidence in the record can raise no improper inferences because the defendant had ample opportunity and did intensively cross-examine and recross-examine the state's witnesses. Quinn v. State (1971), 50 Wis.2d 96, 183 N.W.2d 61.
As for the photographic identification itself, it does not appear to have been conducted in any impermissibly suggestive manner. Rita was shown photographs throughout the year, and never picked out or misidentified anyone. Finally, after going through numerous pictures that year, she picked one picture out of twelve for the first time. The assailant's photograph was the defendant. The police did not in any manner suggest or indicate that defendant's picture was in that selection.
The one-man lineup conducted on August 13th was improperly carried out and impermissibly suggestive The defendant was the only one there for the purposes of identification when confronted with his accuser. Further, a police officer suggested to Rita before she identified the defendant that the defendant admitted to committing such a crime. Although this confrontation is improper, the question remains whether under "the totality of the circumstances" this was sufficient enough to taint the in-court identification — thereby preventing it to independently stand and causing defendant to be convicted without due process of law.
The defendant was identified in court on a basis sufficiently distinguishable and independent of the improper one-to-one confrontation. The in-court identification clearly purged itself of any primary or prior taint. State v. Brown, supra. Rita observed the defendant throughout his attack. The incident was a direct eye-to-eye confrontation between the defendant and herself. She not only testified that she observed the defendant but even saw and described the weapon he used. The identification was based on her own personal knowledge and observation at the time of the offense. She had more than a sufficient opportunity to see his face. She even talked with him and scuffled with him when he attacked her. The lack of taint on the in-court identification is further borne out by the fact that she never made any erroneous identifications. She correctly identified him from the August 12th photographs and the in-person identification on the 13th. She stated throughout the trial and the pretrial identification procedures that she would not identify anyone unless she was absolutely positive, since she considered an identification to be "a very serious accusation." The pretrial errors in identification, if any, were harmless beyond reasonable doubt. State v. Brown, supra. It is evident then that the courtroom identification can stand independently of the August 13th identification and even without the corroboration of the August 12th photographic identification.
See also: Wold v. State (1973), 57 Wis.2d 344, 204 N.W.2d 482.
By the Court. — Judgment affirmed.