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State’s handling of photo array evidence did not violate due process or discovery statute

State v. Raynard Rashawn Jackson, 2012AP1854, 2012AP1861, and 2012AP1862, District 1, 10/15/13; court of appeals decision (not recommended for publication); case activity: 2012AP1854; 2012AP1861; 2012AP1862

Jackson was alleged to have been involved in a shooting, and as part of their investigation the police constructed a photo array to show to three eyewitnesses, all of whom identified Jackson. (¶¶2, 10-11). The array consisted of photos of Jackson and five other persons. (¶10). Each photo was placed in a folder, and a folder with a photo of someone other than Jackson was selected to be the first folder; the remaining five were then supposed to be shuffled so the officer showing the array wouldn’t know which folder contained Jackson’s photo. (¶10). The police used this method up to a point: They shuffled the folders for the first eyewitness, but instead of reshuffling them they showed the folders in the same order to the remaining two witnesses. (¶11). The court declines to address Jackson’s argument that this departure from the “best practices” standard rendered the array unduly suggestive because he did not raise this objection at trial. (¶¶20, 22). In addition, Jackson’s argument the second and third witnesses may have taken cues from the officer showing the photos is purely speculative. (¶¶21-22).

As part of pretrial discovery the state provided a “lineup reference sheet” that displayed all the photos used in the array–though not in the order shown to the witnesses–along with a police report describing the method used to show the array to the witnesses–which explained that Jackson’s photo was in the fourth folder. (¶12). The provision of the “reference sheet” did not violate § 971.23(1) because all the photos used in the array were disclosed and the police report explained the order in which they were presented to the witnesses. (¶12). In any event, any discovery error was harmless because Jackson’s identity was not the real issue at trial, for all three witnesses knew Jackson somewhat before the incident. (¶13). Because there was no discovery violation, or because any violation was harmless, trial counsel wasn’t ineffective for failing to move to exclude the photo array evidence. (¶15).

If Jackson’s identity isn’t the real issue, what was? Whether Jackson fired a gun during the incident. The court rejects his claim the evidence was insufficient to convict him of reckless endangerment and felon in possession of a firearm because none of the witnesses saw him shoot a gun. While that is true, all of the witnesses testified that they either heard gunshots shortly after Jackson’s arrival, saw Jackson chase the person who was shot at, or saw Jackson with a gun at some point prior to the shooting. The jury could reasonably infer from the testimony of these witnesses that Jackson possessed a gun and fired shots at the victim, and therefore the evidence was sufficient to support Jackson’s convictions. (¶¶26-28).

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