State v. Nash

390 Wis.2d 834

939 N.W.2d 880 (Table)

2020 WI App 10

STATE of Wisconsin, Plaintiff-Appellant,

v.Andre David NASH,^† Defendant-Respondent.

Appeal No. 2018AP1595-CR

Court of Appeals of Wisconsin.

DATED AND FILED January 7, 2020

BRASH, P.J.

¶1 The State appeals an order of the trial court granting Andre David Nash’s motion to suppress identification evidence obtained in a lineup. The State argues that it was Nash’s burden to prove that the lineup was impermissibly suggestive, but that the trial court improperly shifted that burden to the State and effectively required that it prove the lineup was not impermissibly suggestive. Furthermore, the State contends that the trial court failed to address the reliability of the lineup, which is required upon finding that a lineup is impermissibly suggestive.

¶2 We agree that the trial court did not properly apply the relevant case law with regard to determining whether a lineup is impermissibly suggestive. Furthermore, we conclude that Nash did not meet his burden of proving impermissible suggestiveness. Therefore, we reverse the order of the trial court and remand this matter with instructions to deny Nash’s suppression motion and continue the proceedings.

BACKGROUND

¶3 Nash was charged with two counts of armed robbery in December 2017. Over the span of a few days—December 5 and December 7—Nash had entered two different Family Dollar stores, each time stealing a bottle of laundry detergent and a comforter. On both occasions, store employees attempted to stop Nash, who then pulled out a black revolver. A fingerprint lifted from the door at one of the stores was identified as belonging to Nash.

¶4 While investigating these incidents, police discovered an address on North 34th Street that was associated with Nash. An officer spoke with D.L.C., who lived at that residence; Nash was her nephew. The officer showed D.L.C. surveillance photos from one of the robberies, and she identified the suspect in the photos as Nash.

¶5 Police took Nash into custody at Mitchell International Airport on December 16, 2017, after removing him from a plane. He was arrested on a temporary felony want; no warrant had been issued at that point. On December 18, 2017, a lineup was conducted that included Nash and "fillers" from the Milwaukee County Jail. An employee from one of the Family Dollar stores viewed the lineup and identified Nash as the perpetrator. The employee stated that he recognized Nash’s face as well as his posture and mannerisms. Charges were then filed against Nash on December 19, 2017.

¶6 Nash filed a motion to suppress the identification evidence, arguing that he was denied his right to an attorney during the lineup. He also asserted that the lineup was impermissibly suggestive because the orange jail top that he was wearing was faded while the fillers’ tops were bright orange, and because he had the lightest skin complexion "by far" of all the individuals in the lineup.

¶7 A hearing on Nash’s motion was held in February 2018. At the start of the hearing, the trial court asked the State to call its first witness. The State explained that pursuant to the relevant case law, Nash had the burden to show that the lineup was impermissibly suggestive; if Nash established impermissible suggestiveness in the lineup, the burden would then shift to the State to prove that the lineup was nevertheless reliable. See Powell v. State , 86 Wis. 2d 51, 65-66, 271 N.W.2d 610 (1978). However, the court continued to ask for evidence from "[e]ither party," stating that otherwise "we can just close the evidence now." The State then asked if the court was ruling that it was an impermissibly suggestive lineup, reiterating that it was Nash’s burden to prove.

¶8 The trial court did not respond to that question. Instead, the court turned to Nash’s other argument regarding his right to an attorney during the lineup. On that issue, the State asserted that at the time of the lineup, Nash had not yet been formally charged so his right to counsel did not apply. Thus, the State suggested that this issue was a question of law. Nash’s trial counsel provided no evidence to refute the timing of the lineup as compared to when the charges were filed against Nash, nor did he provide any legal arguments to counter the State’s position.

¶9 The trial court then again asked the parties whether they were going to present evidence with regard to either issue, or resolve them with a stipulation to the facts. Nash’s trial counsel stated he would "gladly" stipulate to the facts contained in his motion; the State did not agree. The court then stated that the issue was "how do we get it into evidence so we know what happened?" At that point, the State said it would call the detective who ran the lineup as a witness.

¶10 The detective then testified. He stated that in choosing fillers from the jail, he considered age, race, sex, height, and weight. Additionally, the detective stated that he had made an effort to ensure that they were all dressed as similarly as possible, and had them all wear knit hats to conceal their "significantly" different hairstyles. A photo of the lineup was also admitted into evidence.

¶11 The detective testified that Nash had requested an attorney just prior to the lineup, but he had informed Nash that he was not entitled to one at that point. The detective noted that lineups are generally recorded with both video and audio for an attorney to subsequently review; however, in this case, there was no video made of the lineup presentation, although there was a recording made of the witnesses filling out the forms while viewing the lineup.

¶12 At a subsequent hearing in March 2018, the trial court granted Nash’s motion to suppress. With regard to Nash’s claim relating to the difference in his appearance as compared to the fillers—that his complexion was lighter and that his shirt was faded—the court stated that it was unable to "ascertain" from the group photograph of the lineup "to what degree" those differences existed. Nevertheless, the court opined that it was indicative that the lineup was "unduly suggestive[.]" Primarily, however, the court focused on the fact that a lineup had been conducted rather than a photo array. The court stated that the policy of the Milwaukee Police Department is to conduct a photo array, and asserted that there is "a state statute that indicates that’s the preferred system so that it’s fair."

¶13 The trial court further noted that although Nash’s request for an attorney during the lineup did not "have to be honored," it did "inform" the constitutionality of the lineup. Thus, based on the totality of these circumstances, the court granted Nash’s motion.

¶14 The State filed a motion for reconsideration, asserting that the trial court had relied on "misinterpreted facts" and had misapplied the law in failing to recognize controlling precedent regarding identification suppression. The State further argued that the court’s statement regarding its inability to ascertain similarities and differences based on the photograph of the lineup indicated that Nash did not meet his burden of proving impermissible suggestiveness. Moreover, the State noted that after the court made its determination, it did not make any findings as to whether the lineup was nevertheless reliable, as required by Powell .

¶15 Additionally, the State contended that the trial court’s focus on procedure—that is, the use of a lineup rather than a photo array—was in error, because there is no "[p]er se rule" that a photo array must be used instead of a lineup. Furthermore, the State asserted that the lack of an attorney is not a consideration relating to impermissible suggestiveness.

¶16 The trial court denied the State’s motion for reconsideration. This appeal follows.

DISCUSSION

¶17 A defendant’s due process rights are violated if identification evidence is admitted that stems from a police procedure that is "impermissibly suggestive." State v. Benton , 2001 WI App 81, ¶5, 243 Wis. 2d 54, 625 N.W.2d 923 (citations omitted). A challenge of identification evidence consists of two prongs. First, the defendant must show that the procedure used in the identification was impermissibly suggestive. Powell , 86 Wis. 2d at 65. This burden is met if it is shown that the procedure used would "give rise to a very substantial likelihood of irreparable misidentification." Id. at 64 (citation omitted). If the defendant successfully establishes impermissible suggestiveness, the burden then shifts to the State to establish the second prong: that "the identification was nonetheless reliable under the totality of the circumstances." Id. at 66.

¶18 The findings of fact made by the trial court in making this determination "may not be disturbed unless they are ‘clearly erroneous.’ " Benton , 243 Wis. 2d 54, ¶5 (citation omitted). However, the application of constitutional principles to those findings of fact is reviewed de novo. State v. Eason , 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.

¶19 The record shows that the trial court did not adhere to the procedure set forth in Powell . At the start of the motion hearing, the court began by asking whether the State wanted to call its first witness. After the State pointed out that Nash carried the burden for the first prong of the Powell test, Nash’s trial counsel merely deferred to his motion as filed.

¶20 The trial court then stated that if neither party had evidence to present, it would "close the evidence now." The State asked for clarification as to whether the court was ruling that the lineup was impermissibly suggestive. However, the court did not make that finding; instead, it asked about the other issue raised by Nash—whether he had invoked his right to counsel for the lineup. After the parties argued that issue, the trial court again asked whether either party had evidence to present, at which time the State called the detective to testify.

¶21 Prior to the State calling its witness, Nash had...