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Witness ID of defendant sitting with two others wasn’t a “showup”; no IAC for not getting expert on eyewitness reliability

State v. Melvin Lidall Terry, 2017AP1625, 8/7/18, District 1 (not recommended for publication); case activity (including briefs)

Police arrested Terry, his girlfriend Carter, and his brother X.C. soon after, and in the vicinity of, a fatal shooting. The police seated the three on the curb and directed one man who had witnessed the shooting to “look over and identify who it was”; he identified Terry.

Terry claims on appeal that this identification was a “showup” of the sort governed by State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. That case excludes identifications obtained by showup unless the the showup was “necessary” or, if it was not, the ID is “nevertheless reliable.” He argues that, though he was seated with two others, he was the only one of the three who remotely matched the description the eyewitnesses had given of the shooter. Thus, he was in effect presented “singly” for identification, making the procedure unduly suggestive.

The court rejects the argument, noting that the witness testified he felt no pressure to identify anyone at all. It also distinguishes cases about photo arrays that include “a photo which is unique in a manner directly related to an important identification factor,” saying

The holdings in those cases, however, were in the context of photo array procedures in which police had full control over the presentation of target suspects…. Holdings about what makes a photo array impermissibly suggestive cannot practically be applied to an out-of-court identification with multiple suspects at a crime scene. Those holdings do not mean that in circumstances such as these, police are required to present the targets along with other suspects in similar clothing and with similar hairstyles in order to obtain an admissible witness identification.

(¶29).

Terry also argues his lawyer was ineffective for not retaining an expert on reliability issues with eyewitness identifications. The court of appeals turns back this claim on the ground of lack of prejudice, noting that seven different witnesses at trial–including Terry’s girlfriend and a friend of the decedent who had dealings with Terry throughout the day–identified him as the shooter. (¶34).

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