COURT OF APPEALS
DATED AND FILED
December 04, 2007
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Michael R. Cooper,
from a judgment and an order of the circuit court for
¶1 KESSLER, J. Michael R. Cooper appeals from the denial of two postconviction motions brought after his conviction by a jury on two misdemeanor battery charges, and his acquittal on three misdemeanor battery charges, all charges having arisen out of the same incident. Because we conclude that State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, applies to this case, that trial counsel was ineffective for failing to move for reconsideration of Cooper’s motion to suppress the showup identification based on Dubose, and that the trial court erred in denying Cooper’s postconviction motions, we reverse and remand for a new trial.
¶2 A neighborhood argument degenerated into a physical altercation. A person, alleged to be the defendant, returned to the scene with a baseball bat and is alleged to have hit five people—three people with a bat and two others with his hand or fist. The assailant was described to the police by two of the victims (Ester Hodges and Ida Hollins) as “a black male, about six one, and 180 to 200 pounds” and “in his twenties.” A showup identification procedure for Ester Hodges and Ida Hollins (who are sisters) was conducted the following day in the area near the home of one of them and a few blocks from Cooper’s home. Although testimony regarding the showup differed as to some details, it is not disputed that:
• The showup was arranged by the police twenty-three hours after the neighborhood incident.
• The police station was seven blocks from the house where they located Cooper.
• There was no imminent danger to the victims that would discourage having a line up.
• A line-up was a readily available means of identification.
• Police said they took Cooper to the victims because “at a police station … he would believe he was under arrest. We wanted him to feel as free as possible.”
• Police called the victims to tell them the police “had someone that we wanted them to identify.”
• Police were in uniform, driving a marked squad car.
• Cooper arrived at the showup location in the back of a squad car.
• Cooper was handcuffed while in the car.
• Cooper was moved outside the squad for the victims to view.
• The victims, Ester and Ida, in the presence of each other, were each asked “Is this the person that battered you?”
• Both victims identified Cooper from approximately twenty feet away.
• Two police officers, in uniform, stood beside Cooper when the victims identified him.
• The victims recalled that Cooper was handcuffed.
¶3 Cooper moved pretrial to suppress the showup
identification. Relying on State
v. Wolverton, 193
¶4 Except for the police officers, all of the State’s witnesses were family members. According to trial testimony by a non-victim witness, Catherine Hollins, Cooper: hit Catherine’s aunt, Ester Hodges, in her knee with a bat; “smacked” Tonanisha Hodges (Catherine’s cousin and Ester Hodges’ daughter) in the face with “an open hand”; hit Catherine’s mother, Ida Hollins, in the upper leg with a bat; hit Catherine’s brother, Antoine Hollins, near the eye with a bat; and accidentally hit Catherine’s cousin, Tashonda Hodges, with his fist.
¶5 The trial court summarized the trial evidence as follows: In response to the State’s questions, Catherine Hollins and Ester Hodges specifically identified Cooper as the assailant. The State did not ask Ida Hollins to specifically identify Cooper, but in response to defense counsel’s questions, Ida told the jury that she identified Cooper at the showup the police organized. Antoine Hollins and Tashonda Hodges did not testify at trial.
¶6 Cooper was acquitted as to the charges relating to each of the victims who did not testify, and of the charge as to Tonanisha Hodges (who testified and identified Cooper at trial, but had not been present at the showup). Cooper was convicted, however, on the charges relating to Ida Hollins and Ester Hodges.
¶7 The trial court sentenced Cooper to nine months in the House of Correction and two years’ probation, staying the House of Correction portion of the sentence. After sentencing, Cooper filed two postconviction motions. One postconviction motion renewed the request to suppress the showup identification, and later identifications based thereon, relying on our supreme court’s holding in Dubose. Dubose was decided after Cooper’s pretrial suppression motion was denied, but several months before trial of this matter began. A Machner hearing was held. At this hearing, trial counsel acknowledged that he was unaware of the Dubose decision until he received notice of the Machner hearing and, thus, never renewed the suppression motion.
¶8 The second postconviction motion sought a new trial on the ground that trial counsel’s failure to raise the showup and related identification restrictions imposed by Dubose constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984). At the Machner hearing, trial counsel admitted that, had he known of the Dubose decision, he would have renewed the suppression motion.
¶9 In its decision on the postconviction motions, the trial court recognized the applicability of Dubose to this case, and twice acknowledged that if trial counsel had raised Dubose after the original suppression hearing, the court “likely” would have suppressed the showup identifications. However, the trial court concluded that, even if an improper showup occurred, the additional Dubose requirement—that the State establish by clear and convincing evidence that subsequent in-court identifications were untainted by the showup identification—was inapplicable in this case because, under Strickland, the defendant has the burden of proving both that counsel’s performance was deficient and that the defendant was prejudiced.
¶10 The trial court, in applying first the Strickland requirement that the defendant show prejudice, concluded that the defendant was not prejudiced by trial counsel’s performance. The trial court explained that it reached this conclusion because: (1) a witness, Catherine Hollins, not present at the showup identification and not a victim of battery, identified Cooper at trial; (2) the State did not ask one of the showup witnesses, Ida Hollins, to specifically identify Cooper at trial; and (3) the trial court found the other showup witness, Ester Hodges, was credible and certain about her in-court identification such that Hodges’ in-court identifications were untainted by her showup identification of Cooper. The trial court then denied both motions. This appeal followed.
Standard of Review
¶11 “Review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact.” State v. Hughes, 2000 WI 24,
¶12 A claim of ineffective assistance of counsel presents a mixed
question of fact and law. State
v. O’Brien, 223
¶13 The trial court’s conclusion that the State’s burden of proving
untainted subsequent identifications imposed by Dubose was obviated by
the burden imposed on Cooper when he relied on Strickland to establish
ineffective assistance of counsel, for counsel’s failure to raise Dubose,
is a conclusion of law which we review de
novo. See Landwehr v. Landwehr, 2006 WI 64, ¶8, 291
I. Effect of Dubose
¶14 Dubose was decided on July 14, 2005. Dubose establishes new procedural
rules regarding the procedures to be used by police in obtaining identification
¶15 The Wolverton standard for suppressing identification from a showup
was discussed by our supreme court in Dubose, with considerable emphasis
on the criticisms of the Wolverton method which have been
expressed in numerous articles and research.
See Dubose, 285
We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification. See Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. of Personality & Soc. Psych. 525, 527 (1993). In a showup, however, the only option for the witness is to decide whether to identify the suspect. See id.
¶16 The presumption described in Dubose is that a showup identification is not generally admissible unless the State affirmatively establishes exigent circumstances necessitating a showup and the showup is conducted with scrupulous attention to minimizing the suggestiveness inherent in the process. To prevent “the suggestiveness of the police procedures used in garnering an individual’s identification,” Dubose requires a new approach to showup identifications. See id., ¶14. The court explains:
[A]n out-of-court showup is inherently
suggestive and will not be admissible unless, based on the totality of the
circumstances, the procedure was necessary.
A showup will not be necessary, however, unless
the police lacked probable cause to make an arrest or, as a result of other
exigent circumstances, could not have conducted a lineup or photo array.
If and when the police determine that a showup
is necessary, special care must be taken to minimize potential suggestiveness.
[I]t is important that showups are not conducted
in locations, or in a manner, that implicitly conveys to the witness that the
suspect is guilty.
Showups conducted in police stations, squad
cars, or with the suspect in handcuffs that are visible to any witness, all
carry with them inferences of guilt, and thus should be considered suggestive.
[A]n eyewitness should be told that the real
suspect may or may not be present, and that the investigation will continue
regardless of the result of the impending identification procedure.
¶17 The record demonstrates that each factor the Dubose court described as suggestive was present here. There was no imminent danger to the victims. There were no exigent circumstances prohibiting a lineup. A lineup was an easily-available alternative. Cooper lived seven blocks from the police station and the showup occurred only four blocks from either Cooper’s house or the station. The showup was conducted the day after the incident. The showup was conducted in a location implicitly suggesting guilt—i.e., Cooper was in the back of or near a squad car near the victims’ residence. The witnesses were told the police “had someone that we wanted them to identify.” The witnesses saw Cooper in a squad car and recalled that Cooper was in handcuffs. When Cooper was out of the squad car, there was a uniformed officer on each side of Cooper. The police question implicitly suggested guilt, in that the police asked each witness “Is this the person that battered you?” Each witness heard and saw the other’s response because they made their identifications orally in the presence of each other, and both were about twenty feet from Cooper at that time.
¶18 The State argues that the showup was necessary under Dubose
because, before the showup, the police did not have probable cause to
arrest Cooper as the description of the assailant which the police had obtained
the previous day from the showup witnesses (i.e., a black male, six feet one,
weighing 180-200 pounds, in his twenties) could easily apply to a very large
percentage of the male population of
¶19 Our supreme court announced the new rules although the facts before
it in that case established probable cause to arrest Dubose.
¶20 Here, the record contains no evidence that the in-court identifications
of Cooper by Ida Hollins and Ester Hodges were the result of anything other
than the showup. When the trial court found
that “in my mind” the identification was not tainted, the court appears to have
based that conclusion on the firmness with which Ester Hodges announced in
trial her belief that Cooper was the assailant, and on the court’s own
conclusion that she was credible. Credibility
and expression of firm belief in court before the jury by the witness begs the
question of how the witness came by that belief. Nothing in the record except the showup
provides an explanation for how Ester Hodges came to conclude that Cooper was
the assailant. Nothing that either
witness told police before the showup uniquely described Cooper as distinct
from thousands of other men of the same general age, race and build who live in
¶21 The State cannot be relieved of its obligation to prove that
the in‑court identification was untainted by the showup as Dubose
requires simply because Cooper has also alleged ineffective assistance of
counsel. To ignore a burden on the State
under Dubose because a defendant claims he is represented by
ineffective trial counsel would effectively erase the holdings of Dubose. This court may not ignore our supreme court’s
holdings. See Cook v. Cook, 208
¶22 Cooper’s postconviction Dubose motion to suppress the showup and the subsequent in-court identifications should have been granted. Cooper satisfied all of the requirements established by Dubose. The record establishes that there was no exigent circumstance necessitating the showup and that the showup was inherently suggestive. Ester Hodges identified Cooper in response to a specific question. In her testimony, Ida Hollins and the State repeatedly referred to Cooper by name in the presence of the jury which has the same effect as directly asking whether she saw the assailant in the courtroom. The State produced no clear and convincing evidence that Ida Hollins’ and Ester Hodges’ in-court identifications were based on independent sources free from the showup confrontation.
II. Strickland standards applied to the Dubose violation
¶23 In order to prove an ineffective assistance of counsel claim,
the defendant must satisfy a two-part test:
the defendant must prove both that counsel’s performance was deficient
and that the deficient performance was prejudicial. Strickland, 466
¶24 Here, the trial court did not decide whether trial counsel’s
performance was deficient. Trial counsel
admitted that he was completely unaware of Dubose, the controlling law
applicable to this case. Failure to be
aware of controlling law, in the jurisdiction in which one is practicing, is
deficient performance. See State
v. Thiel, 2003 WI 111, ¶51,
¶25 Deficient performance based on ignorance of the law cannot be
excused as a “strategic” choice. See Thiel, 264
¶26 Catherine Hollins and Tonanisha Hodges testified about batteries
to five members of their family. The
only two for which Cooper was convicted involved Ida Hollins and Ester
Hodges. The record shows that Ida
Hollins and Ester Hodges both identified Cooper for the first time in the showup
which, as we have seen, violated the requirements of Dubose. It is impossible to say that the outcome of
the trial would probably have been the same if identifications that originated
with the showup had not been allowed during the trial. See State
v. Mayo, 2007 WI 78, ¶47, ___ Wis. 2d ___, 734 N.W.2d 115 (Our inquiry
in determining whether a constitutional error was harmless is: “‘Is it clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the error?’”
(citation omitted)); State v.
¶27 Because the trial court improperly relieved the State of its burden of proof under Dubose, and because there is no evidence that the in-court identifications were totally independent of the showup identification, Cooper is entitled to a new trial under Dubose. In addition, Cooper is entitled to a new trial under Strickland because he has established deficient performance and prejudice. The trial court will have the opportunity pretrial to insure that the trial will be free from identifications influenced by the showup identification.
By the Court.—Judgment and order reversed and cause remanded.
This opinion will not be published. See Wis. Stat Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
v. Machner, 92
 See State
v. Dubose, 2005 WI 126, ¶38, 285
Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant must
prove both that counsel’s performance was deficient and that the defendant was
prejudiced thereby; accordingly if the defendant cannot prove prejudice, then
the defendant did not receive ineffective assistance of counsel.
 Identification of Cooper by Ida Hollins was before the jury because she referred to Cooper by name in her testimony in response to multiple State questions, and the State likewise asked her questions specifically referring to Cooper.
 In its oral decision regarding the effect of the showup on subsequent identifications of Cooper, the trial court stated: “the in-court identification made by only Hodges, in my mind was not tainted by out-of-court identification.”
 The court in Dubose held, at note 9:
As a result of
our return to the United States Supreme Court’s Stovall approach, we now
withdraw any language in [State v.] Wolverton,
 Because of the unusual situation here where all of the State’s civilian witnesses are family members, the reach of the effect of the showup may be broader than subsequent identification by the showup participants. We express no opinion on this question because the trial court will have the pretrial opportunity to determine whether the State can establish by clear and convincing evidence that there is an independent basis for in-court identifications by persons participating in or having knowledge of the showup identifications.