State v. Hibl

2005 WI App 228, 706 N.W.2d 134, 287 Wis. 2d 806

• Court: Court of Appeals of Wisconsin
• Decided: September 28, 2005
• Docket: 2004AP2936-CR
• Status: Published

Opinions

SNYDER, EJ.

¶ 1. The State appeals from an order suppressing the pretrial and in-court identification of Brian Hibl by Alan R. Stuller, a witness for the prosecution. The State contends that the circuit court erred in holding that the eyewitness identification of Hibl was impermissibly suggestive and unreliable. Although we employ a different analysis, we affirm the order of the circuit court.

FACTS

¶ 2. On June 25, 2002, at 2:53 p.m., Detective Lieutenant Steven Kukowski of the City of Muskego Police Department was driving southbound on Racine Avenue in the City of Muskego. Kukowski noticed a red pickup truck and a white van speeding northbound. He watched the two vehicles jockey for position as they traveled toward a portion of the road that narrows from two northbound lanes to one. He estimated that the two vehicles were going fifty miles per hour where the speed limit was thirty-five miles per hour. After the vehicles passed him, Kukowski continued to watch them in his rearview mirror and he observed the van pull ahead of the pickup truck. The pickup truck then pulled into the southbound lane, apparently attempting to pass the van. Then, although Kukowski did not see the actual collision, he suddenly noticed dust and vehicle parts in the air and saw that the pickup truck was spinning. The white van was no longer in sight.

¶ 3. Stuller witnessed the accident. Detective Paul Geiszler took a brief statement from Stuller at the scene and asked him to go to the police station to give a more complete statement. Stuller complied. At that time, Stuller identified the van driver as a white male; Stuller was unable to describe the driver in any other way. Stuller was not asked to make an identification of the van driver from any photo array or lineup procedure.

¶ 4. Two days later, Scott Anderson of Anderson Flooring, Inc. informed the police that one of his employees, Brian Hibl, reported witnessing the accident. Detective James Kaebisch interviewed Hibl and took a statement from him. Hibl told Kaebisch that he had been driving a white cargo van northbound on Racine Avenue on June 25 at approximately the same time the accident occurred. Kaebisch reported that at one point Hibl admitted that he did see the accident and may have been a contributing factor. Hibl told Kaebisch that he had accelerated at a high rate of speed going north on Racine Avenue and had increased his speed as a red pickup truck attempted to pass him.

¶ 5. The State charged Hibl with one count of causing great bodily harm to another by reckless driving contrary to Wis. Stat. § 346.62(4) (2003-04),¹ and two counts of causing bodily harm by reckless driving contrary to § 346.62(3).

¶ 6. Prior to Hibl's November 18, 2003 trial date, Stuller received a subpoena to appear as a witness. On the day of trial, prior to commencement of the trial, Stuller identified Hibl in the hallway outside of the courtroom. He subsequently identified Hibl in the courtroom during the trial. Hibl moved for a mistrial, the State did not object, and the circuit court declared a mistrial.

¶ 7. Hibl then filed a motion to suppress the pretrial and in-court identifications made by Stuller. The circuit court held evidentiary hearings on June 4 and August 9, 2004, and granted Hibl's suppression motion. The State appeals.

DISCUSSION

¶ 8. We review a motion to suppress using a two-step analysis. See State v. Dubose, 2005 WI 126, 16, 285 Wis. 2d 143, 699 N.W.2d 582. First, we review the circuit court's findings of fact. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or historical fact unless they are clearly erroneous." Id. (citations omitted). Next, we independently review the application of relevant constitutional principles to those facts. Id. This review presents a question of law for our de novo review, but we benefit from the analysis of the circuit court. Id.

¶ 9. We begin with the circuit court's rationale for granting Hibl's suppression motion. The court used the analytical framework presented in State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), abrogated by Dubose, which requires a two-step analysis. First, the defendant must demonstrate that the pretrial identification occurred in an impermissibly suggestive manner. Id. at 264. If the defendant meets this burden, the State must then show that the identification was reliable despite the manner in which it occurred. Id.2

¶ 10. Since the circuit court's order, our supreme court has revisited the Wolverton test. In Dubose, our supreme court provided a substantial history of the evolution of the relevant law and articulated the new legal standard to be applied in matters of pretrial witness identification. See Dubose, 699 N.W.2d 582, 17-27. It tracked, through several key cases, the United States Supreme Court's concern about the reliability of out-of-court identification evidence. The Dubose court explained:

After the Supreme Court's decisions in [Neil v. Biggers, 409 U.S. 188 (1972)] and [Manson v. Brathwaite, 432 U.S. 98 (1977)], the test for showups evolved from an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable.

Dubose, 699 N.W.2d 582, 31. Departing from Biggers and Brathwaite, and turning to Stovall v. Denno, 388 U.S. 293 (1967), as a guide, our supreme court stated:

[W]e now adopt a different test in Wisconsin regarding the admissibility of showup identifications. We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.

Dubose, 699 N.W.2d 582, ¶ 33 (footnote omitted). The supreme court further observed that "[s]tudies have now shown that... it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and identifications that were unreliable." Id., ¶ 31. Accordingly, our supreme court withdrew "any language in Wolverton ... and in cases cited therein, that might be interpreted as being based on the Wisconsin Constitution. Those cases were based on the United States Constitution and focused more on the reliability of the identification than on the necessity for a showup." Dubose, 699 N.W.2d 582, ¶ 33 n.9.

¶ 11. The question of necessity will only arise in situations where police procedure is involved. Hibl insists that the courthouse hallway encounter was not merely random chance, but occurred under circumstances suggesting a planned confrontation. He asserts that "[t]he State knew or should have know[n] that Stuller would confront Hibl either in or around the courtroom." Had the police or prosecutor arranged a confrontation, Dubose would require us to affirm suppression of the identification evidence because the State has not demonstrated that such a procedure was necessary.³

¶ 12. The State argues that Stuller's courthouse encounter with Hibl was not the result of police or prosecutor action. The circuit court observed that "[t]here is no evidence that the police or District Attorney's office intentionally or unintentionally suggested the identification" of Hibl to Stuller. Based upon our review of the record, we accept the characterization of the encounter as free from police or prosecutor manipulation; in other words, it was an accidental confrontation. Consequently, the Dubose analysis regarding necessity is not applicable here.

¶ 13. The remaining issue is whether, in the absence of police involvement, Stuller's identification of Hibl was properly suppressed. "Preliminary questions concerning. .. the admissibility of evidence shall be determined by the judge ...." Wis. Stat. § 901.04(1). A circuit court may, at its discretion, exclude evidence that is unfairly prejudicial. Wis. Stat. § 904.03. A circuit court's decision to admit or exclude evidence is a discretionary determination and will not be upset on appeal if it has "a reasonable basis" and was made "in accordance with accepted legal standards and in accordance with the facts of record." State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983) (citation omitted).

¶ 14. Our supreme court has stated that proffered evidence must be "reliable enough to be probative." State v. Walstad, 119 Wis. 2d 483, 519, 351 N.W.2d 469 (1984) (citation omitted) (discussing the admissibility of expert opinion testimony). The supreme court turned to Stovall to demonstrate that the reliability of pretrial identifications is a question of admissibility, not credibility. Dubose, 699 N.W.2d 582, ¶ 17 n.3. "The overwhelming majority of American courts have always treated the evidence question not as one of admissibility hut as one of credibility for the jury. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel." Stovall, 388 U.S. at 299-300 (citation omitted; emphasis added).

¶ 15. Courts have split on the question of whether suppression of witness identification evidence must be predicated on pretrial police conduct or if suppression is appropriate following other types of confrontations also. "The majority of courts require that an allegedly suggestive pretrial encounter be the result of either police or prosecution action to have an effect on the admissibility of in-court identification. These courts reason that without government involvement there is no violation of a defendant's constitutional due process rights." Lynn M. Talutis, Annotation, Admissibility of In-Court Identification as Affected by Pretrial Encounter That Was Not Result of Action by Police, Prosecutors, and the Like, 86 A.L.R.5th 463, § 2(a) (2001). "Other courts have, however, done away with the government action requirement. These courts typically reason that the deterrence of police conduct is not the basic purpose for excluding identification evidence. Rather, it is the likelihood of misidentification that violates a defendant's right to due process." Id.

¶ 16. In Dubose, our supreme court aligned itself with the latter view, focusing on the likelihood of misidentification as the purpose for scrutinizing identification evidence. Dubose, 699 N.W.2d 582, ¶¶ 31-32.⁴ Although Dubose addressed a police showup procedure, concerns about misidentification are not limited to those situations where the police arranged the confrontation.⁵ Principles of fairness dictate that identification evidence, even absent police involvement, must be scrutinized to determine whether suppression is required.⁶ Here, the circuit court, citing Wolverton, considered the following factors in its rationale:

[1] the opportunity of the witness to view the [accused] at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his [or her] prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. (Alterations added.)

It proceeded with the following analysis:

Mr. Stuller first identified the defendant in the hallway outside of the courtroom with approximately nine other people in the hallway; this occurred on the day Mr. Stuller knew he would see the alleged defendant.... Just prior to identifying the defendant, Mr. Stuller spoke with the police officer assigned to the case and to the Assistant District Attorney assigned to the case .... There is no evidence that the police or District Attorney's office intentionally or unintentionally suggested the identification of the Defendant to Mr. Stuller; however, Mr. Stuller's juxtaposition in the courtroom hallway with the ADA, anticipating the alleged defendant in court in a few minutes, constitutes an identification that occurred in an impermissibly suggestive manner....

Mr. Stuller observed the driver/defendant on June 25, 2002, from 50 feet away while he was traveling 35 to 40 miles per hour, and the driver/defendant was traveling toward him in a white van at a high rate of speed .... On the day of the alleged offense, Mr. Stuller could not identify the driver's facial features, height, weight, or whether or not he wore glasses .... Mr. Stuller could only identify the driver as a "white male." Mr. Stuller's identification of Defendant occurred fifteen months after he witnessed the incident.

¶ 17. The circuit court's rationale is sound. Proffered evidence must be "reliable enough to be probative." Walstad, 119 Wis. 2d at 519 (citation omitted). Because the circuit court's order to suppress was made in accordance with accepted legal standards applied to the record facts, we will not disturb it. See Pharr, 115 Wis. 2d at 342.

CONCLUSION

¶ 18. In Dubose, our supreme court turned the focus from the reliability of eyewitness identification to that of necessity in cases where police procedure is involved. Dubose, 699 N.W.2d 582, ¶ 33. Here, where necessity is not an issue, the only consideration left for the circuit court is that of reliability. The circuit court's analysis demonstrates that Stuller's courthouse hallway identification of Hibl was not rehable; therefore, we affirm the court's order granting Hibl's motion to suppress the pretrial and in-court identification evidence.

By the Court. — Order affirmed.

1 All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

2 We note that the circuit court suppressed both the pretrial and in-court identification evidence offered by the State. The State offered no independent basis for Stuller's in-court identification of Hibl; therefore, if the pretrial identification was tainted, the in-court identification was properly suppressed. See State v. Mosley, 102 Wis. 2d 636, 652, 307 N.W.2d 200 (1981) ("where a subsequent ¿«-court identification is also challenged as tainted by the prior one, the state must show the in-court identification derives from an independent basis").

3 "A showup will not be necessary. .. unless the police lacked probable cause to make an arrest or ... could not have conducted a lineup or photo array." State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, ¶ 33, 699 N.W.2d 582. Here, Hibl's own statement, together with the testimony of the police detectives, established probable cause for his arrest. Detective Kaebisch acknowledged that he never arranged a lineup or presented a photo array to determine whether Stuller could identify Hibl. By way of explanation, Kaebisch stated that Stuller's statement on the day of the accident gave no indication that Stuller had any ability to identify the driver of the white van. He stated that he looked at Stuller's statement and could not "see where any additional follow-up would be required."

4 The supreme court cited several studies that document the problems associated with eyewitness identification evidence. Dubose, 699 N.W.2d 582, ¶ 29.

5 Referencing Samuel H. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. Legal Stud. 395, 435 (1987), one commentator observed that

[c]ourts have struggled with the question of whether to engage in exclusion when, by chance, an eyewitness encounters or sees the defendant. Professor Gross calls this a "spontaneous identification," and in his study he found "many reported misidentifica-tions originated in this manner," but he was chagrined that persons writing about identification procedures had failed to acknowledge these are prone to errors, and had instead credited their reliability.

Margery Malkin Koosed, The Proposed Innocence Protection Act Won't — Unless It Also Curbs Mistaken Eyewitness Identifications, 63 Ohio St. L.J. 263, 300 (2002).

6 See, e.g., Commonwealth v. Jones, 666 N.E.2d 994, 1000-01 (Mass. 1996) (holding that although no governmental action contributed to the eyewitness identification and no due process rights were implicated, fairness required preclusion of the evidence); People v. Walker, 411 N.Y.S.2d 156, 159 (N.Y. County Ct. 1978) (holding that identification process conducted by nonpolice is subject to the same reliability and suggestiveness analyses as those traditionally imposed on procedures conducted by law enforcement personnel).