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COURT OF APPEALS DECISION DATED AND RELEASED May 29, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1849-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SALAAM P. JOHNSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Salaam P. Johnson appeals from a judgment of conviction,
after a jury trial for five counts of armed robbery, threat of force; one count
of attempted robbery, threat of force; and one count of robbery, threat of
force; for which he received consecutive terms of imprisonment totalling
eighty-six years. He raises three issues for our review: whether the trial
court erred in failing to suppress his identification at a lineup; whether the
trial court erroneous exercised its discretion in excluding his proffered
evidence of an alleged misidentification at a lineup; and whether the trial
court erroneously exercised its discretion in admitting evidence of a gun found
in the apartment at which he was arrested.[1] We reject his arguments and affirm.
I.
Background.
Police arrested Johnson
for a series of armed robberies at fast food restaurants and a bank located in
Milwaukee County. When arresting him at
an apartment rented by Trinece Hazelwood, the police found a handgun under a
bed. Police conducted a lineup which
included Johnson; forty-five witnesses participated. The jury convicted Johnson of all counts. Additional facts are discussed with the
relevant issue.
II.
Analysis.
A. Lineup
suggestiveness.
Johnson argues that the
lineup was impermissibly suggestive and that the consequent admission of
evidence of his identity violated his due process rights. We disagree.
This court independently
determines whether a lineup procedure is so impermissibly suggestive that it
denies a defendant due process. Powell
v. State, 86 Wis.2d 51, 64-66, 271 N.W.2d 610, 617 (1978). The trial court's findings of historical
fact, including assessments of credibility, however, will be upheld unless they
are clearly erroneous. State v.
Wilson, 179 Wis.2d 660, 682-83, 508 N.W.2d 44, 53 (Ct. App. 1993), cert.
denied, 115 S. Ct. 100 (1994).
First, the appellant must show that the identification procedure was so
suggestive that it created a substantial likelihood of misidentification. Powell, 86 Wis.2d at 64-66,
68, 271 N.W.2d at 616‑17. If a
defendant can prove that the procedure was “impermissibly suggestive,” then the
burden shifts to the State to prove that the identification was still reliable
under the totality of the circumstances.
Id. at 65-66, 271 N.W.2d at 617.
First, Johnson argues
that the large number of witnesses, ninety summoned from thirty-eight robbery
complaints, of whom forty-five appeared, “suggested” to all that the
perpetrator of crime affecting each witness must be in the lineup. Johnson supplies no authority for this novel
proposition. His conjecture is deflated
by the fact that thirty-five of the witnesses could not identify any offender
on the panel. We deem the argument
meritless.[2]
Second, Johnson contends
that the witnesses shared information, or at least had the opportunity to share
information, among each other. The police divided the witnesses into four
groups. An officer advised them not to
discuss the lineup. After each viewing,
police officers interviewed the group. Although some communication between the
witnesses occurred, the record fails to show that they discussed the
lineup. Again, Johnson does not cite to
authority. The argument lacks merit.
Third, Johnson assails
his identification by victim Dennis Givens. Givens was an assistant manager in
a Kentucky Fried Chicken restaurant that Johnson robbed. On the day after the offense, Givens
identified Johnson from a four-photograph array presented by the police. The officer told Givens that he had selected
the perpetrator. Givens appeared at the
subsequent lineup and again identified Johnson. Johnson now asserts that, given the conduct of the lineup, there
is “no assurance” that Givens had not shared his information with other
potential witnesses. Again, we reject
this argument because it contains no cite to authority and because our review
of the record demonstrates that no discussions about Givens's photographic
identification two months earlier ever surfaced.
Last, Johnson complains
that he stood out in the lineup because his hair was longer than the
others. He reasons, again without
citation to authority, that because the witnesses were convinced that their
culprit was in the lineup, they instinctively would select the stand-out with
the long hair. The trial court
demolished this non sequitur by noting that all four lineup participants
were of approximate same age, height, complexion and wore similar attire. It concluded that the minor hirsute
difference did not constitute impermissible suggestiveness. This finding of fact is not clearly
erroneous. See Wilson,
179 Wis.2d at 682-83, 508 N.W.2d at 53.
We agree with the trial court's conclusion that Johnson has failed to
sustain his burden that his lineup was impermissibly suggestive.
B. Alleged
misidentification evidence.
Count six of the
criminal complaint charged Johnson with the robbery of a bank. The State based its prosecution upon a bank
teller's description of the offender and upon the teller's identification of
Johnson at the lineup. By the time of
Johnson's preliminary hearing, the State became convinced that he was not the
perpetrator of the bank robbery. The
teller had misidentified Johnson, and the guilty person apparently had been
apprehended and faced federal prosecution.
Further, the State recognized that a bank surveillance tape cleared
Johnson of the bank robbery. The trial
court granted the State's motion for voluntary dismissal.
At his trial, Johnson
proffered two witnesses—the teller and another who had misidentified him as the
bank robber. He argues that they “serve
as an example of how witnesses can be mistaken in identification at the
lineup.” The trial court determined
that this evidence was irrelevant. See
Rule 904.01, Stats. (defining relevant evidence). It noted that numerous reasons can be
ascribed to the bank's misidentifications, none of which necessarily pertain to
the other offenses.[3]
A trial court possesses
great discretion in determining whether to admit or exclude evidence. State v. Evans, 187 Wis.2d 66,
77, 522 N.W.2d 554, 557 (Ct. App. 1994).
We will reverse such a determination only if the trial court erroneously
exercises its discretion. Id. “A proper exercise of discretion consists of
the court applying the relevant law to the applicable facts in order to reach a
reasonable conclusion.” State v.
Jackson, 188 Wis.2d 187, 194, 525 N.W.2d 739, 742 (Ct. App. 1994). The trial court reasoned that a
misidentification in one case says nothing about identification in another, and
entirely discrete, case. We agree. Evidence of Johnson's misidentification in
the bank robbery does not make a fact that is of consequence in the other cases
more or less probable than it would be without the evidence. The trial court did not erroneously exercise
its discretion.
C. Handgun evidence.
Johnson contends that
the trial court erroneously exercised its discretion by admitting into evidence
a loaded 9mm, fifteen-round handgun. An
arresting officer found it under a bed at an apartment where the officer
arrested Johnson. The police first
tried his mother's house and, failing to find him there, went to this apartment
which was leased by Johnson's girlfriend, Trinece Hazelwood. Johnson had an apartment in the same
building. Hazelwood identified the
handgun as Johnson's.
Johnson argues that the
handgun is irrelevant to the issues because the evidence fails to establish
Johnson as owner of the handgun or that it was used in any of the
robberies. Again, the standard of
review is whether the trial court erroneously exercised its discretion by
admitting the evidence. Evans,
187 Wis.2d at 77, 522 N.W.2d at 557.
The trial court admitted
the handgun into evidence over Johnson's objection. It determined, as gleaned from the context of the record at the
time of the handgun's admission, that the State need not prove Johnson's
ownership. Evidence indicates that when
Johnson was arrested he admitted that the gun was his and told the police where
he purchased it. It is conceded in the
record that the crimes involved the use of, or pretended use of, a
handgun. We conclude that the trial
court, within the exercise of its discretion, properly determined that the
handgun was relevant. See Thompson
v. State, 83 Wis.2d 134, 144, 265 N.W.2d 467, 472 (1978) (a weapon
found in a defendant's possession after the crime that could have been used in
the crime is admissible even though the record in inconclusive whether it is
the crime-weapon).
In sum, we reject all of
Johnson's arguments and affirm.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Johnson did not move the trial court for relief from his sentences. He also argues that the court imposed a severe sentence because he exercised his right to a trial by jury. A motion for sentence modification addressed to the trial court was a prerequisite to his appeal challenging the sentence, absent compelling circumstances. State v. Meyer, 150 Wis.2d 603, 608‑09, 442 N.W.2d 483, 485 (Ct. App. 1989). Johnson has shown no compelling circumstance. Because Johnson failed to fulfill this condition precedent to his appeal, we decline to consider the sentencing issue. Id. at 609, 441 N.W.2d at 486; see also § 973.19(4), Stats.