Summary
In Guilbeau v. State (1966), 31 Wis.2d 338, 142 N.W.2d 834, the complaining witness was shown two separate pictures of the defendant, each group containing a different picture of him; and she made a tentative identification of him.
Summary of this case from State v. ClarkeOpinion
May 12, 1966. —
June 7, 1966.
ERROR to review a judgment of the county court of Racine county: HOWARD J. DUROCHER, Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Manny S. Brown of Racine.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.
Plaintiff in error (hereinafter defendant) was convicted of armed robbery and was sentenced to an indeterminate term of not more than ten years in the state prison. He alleges on review that the identification procedure used by the police was unfair and that he was (in some way) deprived of his right to call witnesses in his behalf to establish an alibi, for which he asks for a new trial in the interests of justice under sec. 251.09, Stats.
On Tuesday, October 23, 1962, Mrs. Rose Spencer, the complaining witness, was working in the office of the Wisconsin Telephone Company at Union Grove, Wisconsin. Just before noon the telephone rang and a man's voice asked if she was alone. She responded that she was, and the caller hung up.
At noon Mrs. Spencer locked the door for the lunch hour. At 1 p.m. she opened it. The phone rang. While she was talking a tall, very slender man with dark hair, dressed in black entered. When Mrs. Spencer completed the call she confronted the man. She saw about two to four inches of a knife blade sticking out of his right jacket pocket. The man appeared to have been drinking.
As the man approached Mrs. Spencer he said, "I want your money. All of it." He commented that a buddy and he had "cased" the Racine telephone company office but had decided that there were too many employees there.
The man next ordered Mrs. Spencer into the ladies' room. He tied her hands with some wire and tried to lock the door, but the lock was on the inside. Being afraid of him, Mrs. Spencer locked the door herself. She listened as the man went through her desk and the safe. When she heard the front door close, she came out and summoned help.
$439.95 had been taken.
Officer Herman Mauer of the Racine sheriff's department got a description of the man from Mrs. Spencer. His investigation revealed that a man fitting the description had worked for a pipeline company outside Union Grove, and that he recently had been in jail in New York. A photograph was obtained from the New York authorities which had been taken in May of 1962.
On Saturday, October 27, 1962, Mauer went to Mrs. Spencer's home and showed her a number of photographs of similar looking men, including the one obtained from New York. She was asked if she could identify the man who committed the robbery from the photographs. Mrs. Spencer picked out the New York picture and said, "This party's face looks just like the party but his hair is bushier and he has longer sideburns. I am not positive this is the man."
Mauer continued his investigation and determined that in October the suspect did indeed have bushier hair and longer sideburns than shown on the May picture. It was further established that on Monday, October 22d, he had purchased clothes similar to those worn by the robber.
A warrant for defendant, who is the man whose picture had been picked out, was issued and sent to New Orleans. The defendant was apprehended in New Orleans in late November and a police photograph of him was taken at that time which was sent to Union Grove.
On December 3d, prior to the defendant's December 7th appearance before a magistrate, Mrs. Spencer was shown the New Orleans picture together with a second group of similar photos of other men, and she immediately identified the picture as a picture of the man who had robbed her. "This is the party here that held me up."
On December 9th Mrs. Spencer was taken to the jail where she identified the defendant from a group of men. She was taken upstairs to the lineup area in an elevator. When the elevator arrived at the proper floor she recognized the defendant through the elevator door window and immediately identified him as the robber. She was reluctant to proceed with the lineup but did so and picked out defendant as the robber. It is not clear from the record whether or not Mrs. Spencer was shown a picture of the defendant at the jail prior to her identification.
Defendant was arraigned and bound over for trial on February 8, 1963, counsel having been appointed previously. No notice of alibi was filed until April 8, 1963. That notice listed five witnesses of which only one testified. This witness, Walter Jenks, testified that he rode to Racine in a car with the defendant on Monday, October 22, 1962, the day before the robbery, and that the defendant got out of the car on the main street of Racine where they parted company.
The defendant testified that he got to Union Grove on Sunday, October 21st, got a job on the pipeline on Monday, that he was fired the same day, that he received one day's pay and a note to leave town immediately, and that he left town that day. He then testified that he rode to Racine with Jenks, took a train to Chicago, took a bus to Memphis, and hitchhiked to New Orleans — arriving during the evening of Tuesday, October 23d, the day of the robbery. At the time of the robbery he said he was riding through Tennessee with a stranger from whom he had hitchhiked a ride.
Officer Mauer went to New Orleans to escort defendant to Wisconsin. Mauer testified that defendant told him about the trip to New Orleans, but that he said it began on October 23d, not the 22d.
After conviction defendant moved for a writ of error coram nobis in the trial court. This was partially based on two affidavits taken long after the trial, which defendant alleges prove his alibi, or at least cast enough doubt on the state's case to justify a new trial in the interests of justice.
Defendant seeks a new trial in the interests of justice because the method of identification used by the police was unfair since it suggested to the witness that defendant was the guilty person, and because the state denied defendant access' to witnesses who could have established his innocence if they had testified.
This case is controlled by our recent decision in Brown v. State (1965), 28 Wis.2d 383, 137 N.W.2d 53, which involved a request for a new trial in the interests of justice on the ground of improper and unfair identification procedure.
In Brown v. State, supra, we commented at page 388:
"This record does not support the claim that the witnesses were shown photographs of Brown in such a manner `that the witnesses were given the impression that this was the man who had committed the holdup even though they had not yet identified him in the lineup.' In any event, it would be within the province of the trier of the fact to determine what effect the display of a defendant's photograph to witnesses prior to their identification of him has on the weight and credibility of their subsequent identification. We find nothing in the testimony with respect to pictures of Brown that would render the witnesses' positive identification incredible as a matter of law, or insufficient to convince beyond a reasonable doubt."
Mrs. Spencer was unequivocal in identifying the defendant at the trial:
" Q. Now Mrs. Spencer, that man that you saw, did you get a good look at him? A. Yes.
" Q. How far away from you was he? A. He stood right in front of my desk, just a couple of feet. Just the width of the desk in fact.
" Q. Would you remember that man? A. Yes I do.
" Q. Is that man in this room right now? A. Yes, he is.
" Q. Would you tell us where? A. Right over there.
" Q. There are three men over there. A. The one right next to Mr. Baumblatt, to the right of Mr. Baumblatt. To my right.
"Mr. Clickner: May the record show the witness has identified the defendant.
" Q. Any question in your mind that that is the man that came into the Union Grove office on the 23rd? A. No, there is not."
On redirect examination Mrs. Spencer further testified:
" Q. Upon what is your identification of this defendant based today? A. Upon the picture of him in front of me that day in the office.
" Q. When you say picture, what do you mean? A. Mental picture. Mental image."
It is clear from the record that in showing Mrs. Spencer two separate groups of pictures on two different days, each group including a different picture of the defendant, the police did not transgress the bounds of fairness. Mrs. Spencer tentatively identified defendant from a picture of him which was about five months old. Additional investigation revealed that in October defendant appeared just as described by Mrs. Spencer, so she was shown a second group of pictures including a recent photograph of defendant which she immediately and unequivocally identified as a photograph of the robber.
Defendant contends, however, that Mrs. Spencer was shown the photograph of defendant later at the jail, prior to identifying him in a lineup.
It is not clear from the record that Mrs. Spencer was shown a photograph at the jail, and if she was, it is not clear that it was prior to the identification. In any event, her identification of defendant at the trial was unequivocal and her explanation of the identification procedure used was a matter of credibility for the jury.
We cannot find in this regard, on the basis of this record, that justice has probably miscarried so as to make a new trial in the interests of justice proper. On the contrary, we believe the identification procedures were fair and adequate.
Defendant also alleges that the state in some respect deprived him of the right to present witnesses in his behalf. The record does not bear out this allegation.
Defendant was given the opportunity to call witnesses and establish a defense to the crime charged. He was at no time denied the right to call any witness. In fact, the state did not even object to his notice of alibi although two months' tardy.
Sec. 955.07, Stats. Notice of alibi must be filed in writing on the day of arraignment and will not be received later unless good cause for the delay is shown.
However, defendant contends that if the several witnesses listed on his notice of alibi had been called, they would have established that he could not have been in Union Grove at the time the crime took place.
This notice of alibi, which was not timely filed but was not objected to by the state, states that the defendant "will offer" testimony of the several witnesses. Defendant did not offer the testimony. He did not request the aid of the state to subpoena witnesses as allowed by statute. Neither did defendant request a continuance or even suggest that he was having difficulty in procuring material witnesses. Defendant did not even raise this issue on motions after verdict, but attempts to raise it directly in this court.
"955.04 Subpoena. Any defendant shall have compulsory process to compel the attendance of witnesses in his behalf."
This issue was raised for the first time collaterally on writ of error coram nobis. The order denying coram nobis is not appealed from in this court, and the affidavits presented to this court and relied on by defendant as establishing his alibi are outside the record on this appeal. However, we have looked at the affidavits and conclude that they in no way establish defendant's alibi defense.
The affidavit of Mrs. Johse Hernandez, aunt of defendant, states only that defendant called her in New Orleans during the evening of Tuesday, October 23, 1962, the day of the robbery, and said that he was calling from New Orleans. Her statement is that she did not actually see him until the evening of October 24th.
The affidavit of John A. Segerson, who was the man who allegedly gave defendant a ride in Tennessee at the exact time the robbery was taking place, states only that he remembers giving defendant a ride sometime during the fall of 1962.
John A. Segerson is not one of the witnesses listed in the notice of alibi.
For the several reasons enumerated above, we conclude that justice has not miscarried.
By the Court. — Judgment affirmed.