State
v.
Milton

Court of Appeals of Wisconsin.Aug 20, 2013
838 N.W.2d 136 (Wis. Ct. App. 2013)
838 N.W.2d 136350 Wis. 2d 5052013 WI App. 115

No. 2012AP853–CR.

2013-08-20

STATE of Wisconsin, Plaintiff–Respondent, v. Geometry L. MILTON, Defendant–Appellant.

Id. (citation omitted). Here, Howard did not identify Milton in the photo array. This factor weighs in favor of a conclusion that the in-court identification was improper. Balanced against this factor, however, are many countervailing considerations. Howard testified that he was “on the porch watching the whole time the shooting took place.” The record indicates that he had ample opportunity to observe the incident from this vantage point. He did not incorrectly identify as a suspect any “filler” or “known innocent” included in the array or line-up, and Milton points to no discrepancies in Howard's identification. Additionally, it is relevant that Howard identified Milton in court before any testimony about Howard's out-of-court identifications. Id., ¶ 36. The weight of these factors favors admission of the in-court identification.