COURT OF APPEALS
DATED AND FILED
August 19, 2010
A. John Voelker
Acting 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.
IN COURT OF APPEALS
Jason M. Bruckbauer,
from a judgment of the circuit court for
Before Vergeront, P.J., Lundsten and
¶<![if !supportFields]>1<![endif]> SHERMAN, J. Jason Bruckbauer appeals a judgment of conviction for first-degree intentional homicide, as a party to a crime, in violation of Wis. Stat. §§ 940.01(1) and 939.05 (1997-98).<![if !supportFootnotes]><![endif]> Bruckbauer contends that the judgment of conviction should be vacated and a new trial ordered for two reasons. First, he claims the circuit court erred when it denied his motion to suppress a photo identification of him. Second, he claims the circuit court erred when it denied a motion requesting the court allow the jury to view the scene of the crime at approximately the same time a witness purportedly observed Bruckbauer in the vicinity of the crime scene. We conclude that even if admitting the identification was error, it was harmless error. We further conclude that the denial of the motion to view the scene of the crime at a particular time was an appropriate exercise of the circuit court’s discretion. We therefore affirm.
¶<![if !supportFields]>2<![endif]> At approximately 8:30 a.m. on the morning of October 22,
1997, Denise Markham, an officer with the Madison Police Department, discovered
the dead body of Walter Linder in the driver’s seat of a vehicle parked in the
parking lot of
¶<![if !supportFields]>3<![endif]> Richard Cawrse informed
¶<![if !supportFields]>4<![endif]> On November 4, 1997, Detective Bruce Becker showed Cawrse a six-photo
array. The photo array featured six men
with closely cropped hair and light colored skin, and included a photo of
Bruckbauer. The photo of Bruckbauer in
the array was identical to a photograph printed in the Wisconsin State Journal on
November 1 beside a picture of Justin Peterson with an accompanying
article indicating that they were suspects in Linder’s murder
investigation. Upon viewing the photo
array, Cawrse identified Bruckbauer as the individual he had seen running in
¶<![if !supportFields]>5<![endif]> Bruckbauer was ultimately charged with first-degree murder, as a party to the crime, in connection with Linder’s death. Prior to trial, Bruckbauer moved the circuit court to suppress evidence of Cawrse’s November 4, 1997 photo identification of Bruckbauer. At the hearing on the motion, Bruckbauer maintained that the photo array was overly suggestive because the photograph of him in the array was the same photograph previously published in the Wisconsin State Journal and that the photo identification should therefore be suppressed. He argued that using a photo in an array identical to that previously printed in the newspaper “unduly suggests to [the witnesses] what  and who he [or she] has seen.”
¶<![if !supportFields]>6<![endif]> The circuit court denied Bruckbauer’s motion. Stating that “under State v. Marshall,
¶<![if !supportFields]>7<![endif]> Prior to the commencement of trial in late January 1999, Parrish,
Bruckbauer’s co-defendant, moved the court to permit the jury to view
¶<![if !supportFields]>8<![endif]> Bruckbauer was found guilty of first-degree homicide as a party to the crime following a joint jury trial in which Jacob Parrish was also tried for the death of Linder. Bruckbauer appeals his conviction. Additional facts will be discussed as necessary below.
Motion to Suppress
¶<![if !supportFields]>9<![endif]> Bruckbauer contends the circuit court erred by denying his motion to suppress the out-of-court identification of him by Cawrse from the photo array on November 4, 1997, because the identification was unduly suggestive.
¶<![if !supportFields]>10<![endif]> Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact. State v. Hughes, 2000 WI 24, ¶15, 233
¶<![if !supportFields]>11<![endif]> When identification evidence “stems from a pretrial police
procedure that is ‘so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification,’” its admission at
trial denies a criminal defendant of due process. State v. Wilson, 179
¶<![if !supportFields]>12<![endif]> If a constitutional error at trial does not affect the
substantial rights of the defendant, the error is considered harmless. See Martindale v. Ripp, 2001 WI 113,
¶<![if !supportFields]>13<![endif]> Several factors have been identified by our supreme court for consideration when evaluating whether a particular error is harmless. These factors include,
the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case.
State v. Mayo, 2007 WI
78, ¶48, 301
¶<![if !supportFields]>14<![endif]> Cawrse’s identification of Bruckbauer from the photograph did not directly implicate Bruckbauer in the murder of Linder, but merely placed him at the scene of the crime in the early hours of the morning of October 22, 1997. Cawrse testified that when he viewed the photo array, it was not the first time he had identified Bruckbauer from a photograph. He testified that he first saw the edition of the Wisconsin State Journal showing a picture of two men sought in the killing of Linder. At that time, he picked out Bruckbauer from the two photographs and told a co-worker that Bruckbauer was the man that he had seen in the park on the morning of Linder’s murder.
¶<![if !supportFields]>15<![endif]> The jury also heard a great deal of other evidence implicating Bruckbauer in Linder’s murder. The testimony of multiple witnesses indicates that Bruckbauer and Linder did not have a cordial relationship. Multiple witnesses testified that Bruckbauer and his wife Mary Bruckbauer, Linder’s former girlfriend, had stolen Linder’s gaming system and numerous games belonging to him, which they attempted to conceal from Linder. There was testimony that in September 1997, Bruckbauer, Mary, and Linder got into an argument over the gaming system when Linder went to Bruckbauer’s residence to retrieve his property. The jury also heard testimony that Bruckbauer and Linder were involved in a fight, after which Bruckbauer stated that he would “take it to another level” with respect to Linder. In addition, there was testimony that the night before Linder’s murder, Bruckbauer and other visitors at his home made harassing phone calls to Linder and threw eggs on Linder’s vehicle.
¶<![if !supportFields]>16<![endif]> There was evidence presented at trial that Bruckbauer was in possession of the murder weapon when Linder was shot, but that it was later disposed of by Bruckbauer’s wife, Mary. The jury heard testimony that in April and May of 1997, Mary purchased three .380 caliber semiautomatic handguns. The jury heard testimony that at the time of Linder’s murder, Bruckbauer was in possession of one of those weapons, that he displayed the weapon almost every day, and that he kept it in an air vent in his residence. Bruckbauer’s roommate testified that on the evening of Linder’s murder, he looked at Bruckbauer’s .380 caliber handgun and observed that it smelled like gunpowder, as though it had recently been fired. The roommate also testified that the gun’s clip normally contained hollow point bullets, but that there were no bullets in the clip when he observed it after Linder’s murder. The roommate further testified that he later returned the gun to the air vent where it was regularly stored and that he never saw it again.
¶<![if !supportFields]>17<![endif]> The jury heard testimony that when detectives searched Bruckbauer’s apartment, including the air vent, they found paperwork for a .380 caliber handgun and a holster, but were unable to locate the gun itself. Multiple witnesses, including Bruckbauer’s roommate, testified that Mary asked more than one person to get rid of the gun, and there was testimony that Mary had stated that she had disposed of the gun someplace “where nobody would ever find it.”
¶<![if !supportFields]>18<![endif]> There was testimony that on the night of October 21, 1997,
Parrish stayed at Bruckbauer’s residence.
More than one witness testified that a short time before he was
murdered, Linder received a call made by Parrish on Bruckbauer’s phone in which
Parrish told Linder he had been stabbed at
¶<![if !supportFields]>19<![endif]> In addition, the jury heard testimony from Terry Keehn,
Bruckbauer’s cellmate in the
¶<![if !supportFields]>20<![endif]> Upon our consideration of the Mayo factors and the facts of this case, we conclude that there is no reasonable possibility that the jury’s verdict would have been different had evidence of Cawrse’s identification of Bruckbauer from the photo array been excluded. Accordingly, we affirm the circuit court’s decision to deny Bruckbauer’s motion to suppress.
Motion to View
¶<![if !supportFields]>21<![endif]> Bruckbauer contends the circuit court erred when it refused to permit the jury to view Reindahl Park at the same time of day as when Linder was murdered.
¶<![if !supportFields]>22<![endif]> Pursuant to Wis. Stat. § 972.06
(2007-08), a circuit court may authorize a jury view of the scene of an
offense. Ordering a jury view is a
discretionary decision of the circuit court.
American Family Mut. Ins. Co. v. Shannon, 120
¶<![if !supportFields]>23<![endif]> Bruckbauer argues that the court erred in denying an early morning jury view because “there would have been nothing improper” in having the jury view the park at that time and because it “would have helped the jury make [the] crucial determination” regarding Cawrse’s ability to identify him in the dark and would have helped the jury better “understand, correctly weigh and assess the respective credibility of the evidence.”
¶<![if !supportFields]>24<![endif]> Bruckbauer cites to State v. Herrington, 41 Wis. 2d 757,
165 N.W.2d 120 (1969), wherein the supreme court held it was not improper for a
circuit court to order a daytime jury view of the scene of a murder which
occurred during the daytime and a nighttime jury view of the scene of a murder
which took place during the nighttime hours.
See Herrington, 41
¶<![if !supportFields]>25<![endif]> Although the court in Herrington held that it is not improper for a jury view to be held when lighting conditions are similar to those present when the offense at issue took place, it did not hold that it is improper for the court not to hold a jury view when the lighting conditions are similar and Bruckbauer does not cite to any legal authority which indicates a circuit court is compelled to order a jury view of the scene of an offense under lighting conditions identical to, or even similar to, those present when the offense at issue occurred.
¶<![if !supportFields]>26<![endif]> The purpose of a jury view is to enable the jury to understand
the evidence introduced. Haswell
v. Reuter, 171
¶<![if !supportFields]>27<![endif]> For the reasons discussed above, we affirm the judgment of conviction.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
<![if !supportFootnotes]><![endif]> Bruckbauer’s direct appeal rights were reinstated in 2008 on the grounds of ineffective assistance of appellate counsel.