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COA rejects IAC claims based on the failure to seek suppression of an in-court identification

State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)

The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.

Rivera was convicted of several crimes, including the 1st-degree homicide of Henry Hodges and attempted 1st-degree homicide of B.G. A detective showed B.G. a Facebook photo of Rivera. She said she was “100%” certain that this was the guy who shot them.

The State initially charged Rivera with being a felon in possession, and he retained a lawyer.  He says during his lineup for this case he told police that he wanted that lawyer present. Police told Rivera that he was being represented at the lineup by a different lawyer. Later, the State charged Rivera with homicide and attempted homicide. his original lawyer did not represent him on these charges. At his trial on the homicide charges, B.J. identified Rivera as the shooter.

Showup procedure. At the time of Rivera’s trial, showups were governed by State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, abrogated by State v.
Roberson, 2019 WI 102, ¶3, 389 Wis. 2d 190, 935 N.W.2d 813. Playing it safe, the court of appeals analyzed his claim under both Dubose and Roberson.

The court denied the ineffective assistance of claim based on Dubose because the extent of Dubose‘s application to photo identifications (rather than a live single-person lineup) was unsettled at that point in time. Opinion, ¶21.

It denied the same claim under Roberson because Rivera failed the first step of its test.  He could not show that law enforcement’s identification procedure was unnecessarily suggestive and that there was a substantial likelihood of misidentification.  Police showed B.G. the Facebook photo without displaying Rivera’s name. Furthermore:

The picture of Rivera was obtained after police received a partial identification of the shooter from B.J., who also provided additional information about the location of Rivera’s apartment which was corroborated by Hodges’ nephew. As such, there was little chance of misidentification by showing the Facebook picture to B.J.  Opinion, ¶30.

Right to counsel during lineup.  At the time of the lineup, Rivera was only charged with felon in possession. The homicide charges came later. He had stipulated to a previous felony conviction. So the State was only required to prove that he possessed a firearm. Assuming that he was entitled to have his retained attorney at the lineup he wasn’t prejudiced. He was ultimately convicted of the homicide charges so there was no reasonable probability of a different outcome on the felon in possession charge. Opinion, ¶40.

Because Rivera’s ineffective assistance of trial counsel claims failed, his postconviction counsel was not ineffective for failing to raise them.

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