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Joinder — multiple incidents of armed robbery, two of which also involved homicide. Identification — suggestiveness of photo array

State v. Deontaye Terrel Lusk, 2012AP587-CR, 2012AP588-CR, 2012AP589-CR, & 2012AP590-CR, District 1, 7/16/13; court of appeals decision (not recommended for publication); case activity: 2012AP587-CR2012AP588-CR2012AP589-CR2012AP590-CR

Joinder

Lusk was charged in four cases with crimes arising from five armed robberies and one attempted armed robbery that occurred in April, May, June, and July, 2009. In  two of the robberies the victim was killed, and in one a person who was with the victim was shot and wounded. (¶¶3-6, 9-21). The court of appeals affirms the trial court’s joinder of the cases for trial under § 971.12.

First, as to the two cases in which Lusk was charged with both robbery and homicide, it was proper to join those charges together for trial because § 971.12(1) allows charging “[t]wo or more crimes … in the same complaint, information or indictment … if the crimes charged … are based on the same act or transaction….” (¶¶34-35).

Next, as to joining those two cases with each other and with the two cases that did not involve a homicide, § 971.12(1) and (4) allow joinder of separate cases if the crimes charged are “of the same or similar character….” The court rejects Lusk’s claim that the various robberies and acts of violence were dissimilar in fact and distant in time, relying on State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988):

¶37      There is a similar significant evidentiary overlap in this case.  Both homicides occurred after armed robbery attempts involving confronting the victim with a handgun and demanding money. Either attempted armed robbery or completed armed robbery is charged in all of the criminal complaints. Violence involving a handgun is involved in all of the events. All of the events charged occurred within a relatively short proximity—in a geographic area bounded on the east by North Teutonia Avenue, on the west by 24th Street, on the south by the 3300 block and on the north by the 3600 block.[8] Lusk was accompanied by one or more partners in all of these crimes and he engaged his victims prior to attempting to rob them. It is not required that the facts be identical; the facts must only be such that the crimes are “of the same or similar character” under the joinder statute. We conclude that each crime here was factually of the same or similar character and thus properly joined.

The court also rejects Lusk’s argument that even if the charges against him were of the same or similar character, he was prejudiced by the joinder. If offenses are properly joined for trial, it is presumed that the defendant will not be prejudiced. State v. Linton, 2010 WI App 129, ¶20, 329 Wis. 2d 687, 791 N.W.2d 222. The defendant may rebut that presumption by showing substantial prejudice to the defense; some prejudice is not enough. State v. Leach, 124 Wis. 2d 648, 669, 370 N.W.2d 240 (1985). The danger of prejudice is minimized when the evidence of both counts would be admissible in separate trials under § 904.04(2)State v. Hoffman, 106 Wis. 2d 185, 209-11, 316 N.W.2d 143 (Ct. App. 1982). If the cases against Lusk were not joined and multiple trials were conducted, evidence of the non-joined offenses would have been admissible as other acts evidence under § 904.04(2), so Lusk has not shown substantial prejudice. (¶¶38-40).

The court of appeals issued a decision in this case in April which refused to consider Lusk’s prejudice claim on the grounds he hadn’t raised it in the circuit court. Lusk filed a motion to reconsider, pointing out prejudice was argued and decided below. The court withdrew and reissued its opinion, which now holds Lusk hasn’t rebutted the presumption.

Identification

The photo array shown to an eyewitness to one of the robberies was not unduly suggestive. Though Lusk was the only one of the six persons in the array shown wearing a black T-shirt, the witness viewed the photos one at a time, and the photo of Lusk was the second one she viewed. Thus, “Lusk’s photo could not have stood out at that point as unique in the array; the uniqueness (impermissible suggestiveness, in Lusk’s view) would have become apparent only in retrospect.” (¶43).

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