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Eyewitness identification evidence; independent basis for identification despite suggestive identification procedure

State v. Alexander Jerome Wiley, 2012AP71-CR, District 1, 12/11/12

court of appeals decision (3 judge; not recommended for publication); case activity

Wiley, a co-defendant in a reckless homicide case, moved the circuit court to exclude the in-court identification testimony of an eyewitness to the crime who had picked Wiley out of a photo array. He argued that the in-court identification was tainted because the photo array was unduly suggestive. Because Wiley was the only person in the photo array with an obvious physical defect in his right eye, the circuit court concluded the array was unduly suggestive, thus shifting to the state the burden to prove that there was an independent basis for the witness’s identification. State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997). The circuit court went on to hold that the state had not met its burden because: (1) at the time the witness said she saw Wiley she was, or recently had been, smoking crack; (2) her otherwise detailed description of the person failed to mention what is most immediately recognizable about him – his eye defect; and  (3) her explanation of how she came to know Wiley “was too vague for someone who says she saw him as often as she says she did.” Thus, the circuit court excluded the witness from identifying Wiley in court.

The state appealed, conceding the array was unduly suggestive but arguing the circuit court erred in finding the state had not proven an independent basis. Despite the deference usually given to circuit court factual findings, the court of appeals agreed with the state and held that it was clearly erroneous for the lower court to find that the witness’s testimony was “too vague.” Relying on lengthy quotations from the witness’s testimony, and noting that the circuit court did not say her testimony was incredible, the court of appeals conclude the testimony was not vague:

¶15      As we have seen, [the witness] testified that she knew Wiley from the neighborhood, that she saw him hanging out on a neighborhood corner “practically every day” or “every other day” for five to ten years.  She identified the specific corners where she saw Riley [sic], explained why she was on those corners, that they grew up in the same “hood,” and that she called his eye defect his “lazy eye.”  [She] thus had an independent basis for knowing Wiley before she saw the photo array, and, in fact, had known him for a long time before she even saw the photo array.  Thus, the suggestive line-up did not taint [the witness]’s identification of Wiley.

The court of appeals also concluded that whether the witness used cocaine that night had nothing to do with whether she knew and had known Wiley from her neighborhood and that whether she told or did not tell the police that Wiley had something wrong with one of his eyes also did not bear on whether she was telling the truth when she said she knew Wiley from her neighborhood. Moreover, “neither her cocaine use that night or her not telling the police about Wiley’s eye did not, as the circuit court opined, make ‘vague’ her testimony about having known Wiley for a long time.” Thus, the witness’s testimony about her long prior acquaintance with the person she identified was clearly the overriding consideration to the court of appeals, trumping any other deficiencies in the witness’s ability to perceive or remember.

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