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COURT OF APPEALS DECISION DATED AND FILED October 25, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
Cir. Ct. No. 2006CF6606 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Artieas Yenom Shanks, Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Milwaukee County: m. joseph donald, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Artieas Yenom Shanks appeals from a judgment of conviction, entered
upon a jury’s verdict, convicting him of two felonies. He complains that the circuit court erred by
admitting at trial “opinion” testimony from a police detective about a photographic
lineup she conducted. Because we
conclude that the circuit court properly admitted the testimony, we
affirm.
BACKGROUND
¶2 Three
or four men attacked Thomas Lowe late one evening, beat him and robbed him at
gunpoint. Lowe viewed a photographic
lineup and identified Shanks as one of the assailants. The State charged Shanks with armed robbery
and with substantial battery while armed with a dangerous weapon, both as a
party to a crime. At trial, Shanks
claimed that he did not commit the crimes and that he was misidentified as a
perpetrator during the lineup procedure.
¶3 Detective
Shelondria Tarver conducted the photographic line-up. She testified during her direct examination
about the process of preparing a photographic array, placing photographs of
suspects into folders, and displaying the folders to a witness. She described for the jury how Lowe selected
Shanks’s photograph from the folders of photographs in this case. Shanks cross-examined Tarver about the
identification procedure, and the exchange included the following:
Q: Now, the key points [sic] in putting together a photo array is to avoid suggestiveness, correct?
A: That is correct.
Q: That is, for instance, you wouldn’t want all White fillers, other pictures, and one Black defendant to take an extreme –
A: Yes.
Q: --correct? Because that would point out the obvious. It would be pretty suggestive; correct?
A: Yes.
¶4 Under
further cross-examination, Tarver testified that a law enforcement officer conducting
a photographic lineup is “not supposed to know which folder the suspect[’s picture]
is in,” and that the officer should not sit next to the witness who will
examine the array “because there aren’t supposed to be any subtle messages or
anything like that sent by [the officer].” She testified that she displayed the
photographs to Lowe at his home but that she was “not sitting side-by-side with
him” during the procedure.
¶5 The
State next conducted redirect examination, and Tarver testified in greater
detail about how she instructed Lowe about the lineup procedure, shuffled the
folders of photographs, and showed them to Lowe one folder at a time. The direct examination continued:
Q: Is Mr. Shanks – is there anything in this photo array that you see, Exhibit No. 5, that points to Mr. Shanks?
[Defense counsel]: Object the jury can draw that conclusion. We don’t need that type of an answer.
THE COURT: Well this is redirect. The witness was questioned extensively about how she conducted the array. At this point, I’m going to overrule the objection and allow the witness to answer the question if she understands the question.
A: There is nothing suggestive about this photo array that would point out Mr. Shanks exclusively.
¶6 The
jury found Shanks guilty as charged. He
appeals, arguing that the circuit court improperly overruled his objection to
the State’s question about the photo array.
DISCUSSION
¶7 Whether evidence is admissible lies
in the circuit court’s sound discretion.
State v. Brewer, 195 Wis. 2d 295, 305, 536 N.W.2d 406 (Ct.
App. 1995). We will not overturn a
discretionary decision if the circuit court examined the facts of record,
applied a proper legal standard and, using a rational process, reached a
reasonable conclusion. Id.
¶8 Shanks
contends that the circuit court erred by permitting the State to ask Tarver
whether anything in the photo array “points to Mr. Shanks.” Tarver, he argues, was no better able than the
jury to make that determination. In his
view, the State sought information that was unhelpful and therefore irrelevant and
inadmissible under Wis. Stat. § 904.01
(2009-10).[1] We reject the claim. Shanks ignores the context of the State’s
redirect examination and misunderstands the specific question that the State
asked.
¶9 Shanks
cross-examined Tarver at length about the identification procedure in an effort
to show that the photographic lineup failed to “avoid suggestiveness.” “Suggestiveness in photographic arrays may
arise in several ways—the manner in which the photos are presented or
displayed, the words or actions of the law enforcement official overseeing the
viewing, or some aspect of the photographs themselves.” State v. Mosley, 102 Wis. 2d
636, 652, 307 N.W.2d 200 (1981). A
suggestive identification procedure risks an unreliable identification. See
id. The State sought to refute any
inference that the lineup failed in its purpose of aiding in identifying Lowe’s
attacker. Thus, the State asked whether
anything about the photographic array pointed to Shanks. Shanks objected, contending that the jury had
no need for the information. In his
brief to this court, he expands on that objection, asserting that the jurors
“could have examined the pictures themselves.”
¶10 In
fact, testimony about the photographic array could and did give the jury
substantial information about the lineup that was not available merely by
looking at the photographs. Cf. id. Indeed, Shanks probed for such information,
and, unsurprisingly, the State responded with inquiries designed to allow
Tarver to expand on her testimony that nothing arose in the photographic line
up that would lead a viewer to select Shanks.
Nonetheless, Shanks objected to the State’s inquiry, but the circuit
court correctly noted the context of the question, namely, that Shanks
cross-examined Tarver “extensively about how she conducted the array.” The circuit court did not err by permitting
the State to seek the same kind of information that Shanks elicited regarding
whether the identification procedure compromised its reliability. See State v. Cydzik, 60 Wis. 2d
683, 690, 211 N.W.2d 421 (1973) (circuit court has broad discretion with
respect to the scope of redirect examination).
¶11 In
short, the State sought information from Tarver about whether the photographic
array was conducted in a manner that would assist Lowe in determining who
attacked him. The inquiry flowed from
Shanks’s
cross-examination of the witness and was entirely proper. To the extent, if any, that Tarver’s response
went beyond the scope of the question posed when she opined that “there was
nothing suggestive about this photo array,” we note that Shanks did not move to
strike the response. See Wis.
Stat. § 901.03(1)(a) (relief may not be predicated upon erroneous
admission of evidence absent, inter alia,
a timely and specific motion to strike).
¶12 Moreover,
Tarver’s opinion was not objectionable.
Shanks asserts that it improperly invaded the province of the jury, but
an opinion is not improper for that reason.
¶13 Pursuant
to Wis. Stat. § 907.04, the opinion
of a non-expert witness “is admissible even though it ‘embraces an ultimate
issue to be decided’ by the jury.” Lievrouw
v. Roth, 157 Wis. 2d 332, 351, 459 N.W.2d 850 (Ct. App. 1990) (citation
omitted). Thus, testimony is not
objectionable merely because the jury may be required to decide the issue that
the witness addressed. Shanks’s claim
for relief on this basis must fail.
¶14 Shanks
also asserts that Tarver’s testimony ran afoul of the rule that “[n]o witness,
expert or otherwise, should be permitted to give an opinion that another
mentally and physically competent witness is telling the truth.” See
State
v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App.
1984). This contention is wholly without
merit. “Under Haseltine, an attorney
may not ask a witness to testify about the truthfulness of another witness’
testimony.” State v. Patterson, 2010
WI 130, ¶58, 329 Wis. 2d 599, 790 N.W.2d 909. Tarver was not asked to and did not testify
about Lowe’s truthfulness. She testified
about how she conducted the lineup.
¶15 Shanks
observes that the State did not lay a foundation to qualify Tarver as an expert
in the area of eyewitness identification.
Nonetheless, he posits that this court might consider whether Tarver’s
testimony was admissible if offered as the opinion of an expert witness, and he
analyzes why, in his view, the testimony was improper expert opinion. We do not reach that question because Tarver
did not testify as an expert on the issue of eyewitness identification. See Area Bd. Of Vocational, Technical and Adult
Educ., Dist 4 v. Town of Burke, 151 Wis. 2d 392, 400, 444 N.W.2d
733 (Ct. App. 1989) (we do not decide hypothetical cases or give advisory
opinions).
By
the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.