Jackson argues his trial lawyer should have moved to suppress the identifications of him in a live lineup viewed by three eyewitnesses to a crime. He claims the identification procedure was impermissibly suggestive because, before the witnesses were interviewed about whether they could identify anyone in the lineup, one witness asked to view the person in position number five (Jackson) again and therefore suggested to the other witnesses who they should identify. (¶¶3, 11). The court of appeals disagrees.
¶19 The “overriding question” in determining whether a defendant’s rights were violated as a result of an impermissibly suggestive lineup is “‘whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive.’” Powell [v. State], 86 Wis. 2d [51,] 64-65[, 271 N.W.2d 619 (1978)] (citation and one set of quotation marks omitted).
¶20 We conclude that Jackson has failed to show that the lineup was impermissibly suggestive. The record shows that when B.B. asked to see number five again, she asked the officer standing next to her, who told her that number five could not be singled out—the entire lineup would have to be shown again. Nothing suggests that K.G. or T.M. even heard B.B.’s request, let alone were influenced by it. Each witness was individually interviewed following the lineup and each witness provided an independent explanation as to how she knew Jackson was one of the shooters. K.G. and T.M. both recognized Jackson from their neighborhood, both saw Jackson with a gun, and both saw Jackson shooting towards “Red.”
¶21 Moreover, Jackson has not shown a reasonable probability of a different result at trial had the lineup evidence been suppressed. T.M. and K.G. identified Jackson in court, and B.B. testified that she was “100 percent” certain Jackson was at the school playground with a gun on the day of the shooting.
The court also rejects Jackson’s sufficiency challenge, which was based in part on the fact one of the eyewitnesses initially misidentified Jackson in court during trial. (¶8). But the witness subsequently testified she approached by a person in the gallery and told not to identify Jackson, and then accurately identified him. The other two witnesses accurately identified him at trial and all testified they knew him from the neighborhood, though by different names. (¶¶7-9). It was up to the jury to sort out their testimony to the extent it was confusing or inconsistent, and the trial evidence was not inherently or patently incredible or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt. (¶¶23-28).