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COA splits over suggestive photo array and ineffective assistance of counsel

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)

A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault.  Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and (2) trial counsel was not ineffective for failing to impeach the victim with her inconsistent statement. Judge Dugan would reverse on these issues and grant a new trial.

Two black man followed two women into an apartment building near Marquette University. They forced their way into one woman’s (S.D.’s) apartment, demanded her cell phone, bank card, and access code to withdraw funds. S.D. told police that one intruder (allegedly Bratchett) told her to into her bedroom, sit on the bed, and take off her clothes. He grabbed the bottom of her gym shorts and tugged on them. He told her not to call the police. Then the two men left the building.

Photo array. The two men were in S.D.’s apartment about 15 minutes. S.D. did not get a good look at the one alleged to be Bratchett because his hood was pulled over his hair, he kept covering his face with his hands, and she was in shock. When police showed her an array of 6 black men they told her to “pick the one who best fit the description of what happened that night.” She remembered that main intruder had a “boxy face,” so she picked the only man who had a boxy face. He also happened to have 2 large moles and a prominent tattoo on his neck–two features S.D. never observed and no other man in the array had. S.D. testified that her selection of Bratchett “was not a clear decision at all.” In fact, she was only “60-70%” sure that he was the perpetrator.

The admission of identification evidence infected by improper police influence violates a defendant’s right to due process. State v. Roberson, 2019 WI 102, ¶26,
389 Wis. 2d 190, 935 N.W.2d 813. The defendant bears an initial burden of showing that law enforcement’s identification procedure was impermissibly suggestive such that there was a substantial likelihood of misidentification. Then the burden shifts to the state to prove that under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. Id., ¶¶34-35.

Note that Roberson recently changed the law governing pre-trial identification procedures. See our post on Roberson.

Based on Neil v. Biggers, 409 U.S. 1888 (1972), all three judges agreed that law enforcement’s procedure was impermissibly suggestive. Unlike the majority, Dugan noted that S.D. was told to choose the photo that “best fits” the person who entered her apartment. This implied that she should pick a photo even if it was not of the person who entered her apartment. The one distinctive feature S.D. recalled was a “boxy” face. Bratchett was the only man in the array who had a boxy face. His photo also stood out due to the moles and tattoo. Dissent, ¶¶61-64.

Despite the suggestiveness of the array, the majority held that under the totality of the circumstances it was still reliable. S.D.’s identification was based on her close observation of Bratchett during the robbery. She noted his “boxy” face but not his moles and tattoo. She was 60-70% certain. And she made the identification the day after the robbery. Majority, ¶¶25-26.

The Dissent notes that the majority ignores S.D.’s actual testimony. She admitted she “couldn’t see” much of his face because of his hood and because he kept putting his hand over his mouth and face. She missed his obvious distinguishing features. She admitted her identification was “not a clear decision at all” because she was in shock and not concentrating on the intruders’ appearances.. Dissent, ¶¶55-72.

Ineffective assistance of counsel. According to a statement S.D. gave to police shortly after the robbery, Bratchett led her to the bedroom, warned her not to lie to him, and said “don’t fuck with me. He also tugged ob her shorts, told her to remove her clothes, and to sit on the bed.

At trial, S.D. testified that Bratchett led her to the bedroom, told her to sit on the bed, and said “I will fuck you. You better not be lying to me.” He also tugged on her gym shorts. As he was walking away he told her not to call the police or “I will come fuck you.”

Bratchett’s lawyer did not cross-examine her about her inconsistent statements. The majority held that the failure to do so was just part of an over-arching strategy to focus on the sufficiency of the identification. Majority, ¶33. The Dissent highlighted trial counsel’s testimony that he couldn’t recall why he didn’t cross-examine S.D. on the inconsistency. The Dissent also pointed out that a strategy of attacking S.D.’s identification would not preclude cross-examination on the inconsistent statements.

The State had to prove that the intruder intended to commit sexual assault.  Whether the intruder said “don’t fuck with me” or “I will fuck you” was critical to this element. If he made the first statement, the Dissent reasoned, the jury could believe that the intruder told her to disrobe and sit on the bed in order to dissuade her from calling the police not because he planned to assault her. Dissent, ¶¶82-84.

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