Friday, March 18, 2011

DUI Appeal of the Day (DAD) - Hit-and-run, Disorderly, OWI, Blood Draw, In-Court ID

In State of Wisconsin v. Cain, Slip Copy, 2011 WL 904409 (Wis.App.), the defendant Cain's appeal involved several issues. The case itself had several interesting tidbits. Cain contended that: (1) the police lacked probable cause to arrest him for disorderly conduct in his residence, requiring suppression of the evidence obtained following his arrest; and (2) the victim's in-court identification of Cain was inadmissible because it was tainted by the victim's inadmissible prior out-of-court identification.

Essentially, the case involved a hit-and-run in a daylight parking lot, where the drivers got out of their cars and briefly stood 20 feet apart. Then one driver left the scene, and the plates and description of the vehicle led to police arriving at the defendant's house. There, the vehicle was observed with a warm engine, and tire tracks in the snow leading into the driveway where the car was parked. police were invited into the home of Cain, who denied driving. Cain became 'disorderly' and was arrested for disorderly conduct, hit-and-run, and his blood was drawn. The victim was shown a photo lineup, with 5 or 6 males, and id'd the defendant. the trial court found the out-of-court ID unreliable. the court, however, found that there was a valid in-court identification, and otherwise also found sufficient probable cause to arrest the defendant. he was eventually convicted of the pertinent charges.
On appeal, the defendant argued that he could not have committed disorderly conduct (i.e. disturbing the public) inside his own home. The appeals court, finding ample probable cause for hit-and-run, held that whether there was a disorderly conduct was irrelevant, so long as there was p.c. for anything else. insofar as the blood draw was concerned, the court found that there was a reasonable suspicion to conduct a warrantless blood draw, based upon a strong odor of alcohol, slurred speech, a and poor balance. (I am personally alarmed that the court in Wisconsin used a reasonable suspicion standard, given that the US Supreme Court in Schmerber v. California held that probable cause is required.)

As far as the in-court identification was concerned, the appeals court acknowledged that, if there is a preceding improper out-of-court identification, then the State has the burden of disproving by a clear and convincing evidence that the in-court identification was also tainted and hence inadmissible. the appeals court employed the following test in determining whether the in-court id was sufficiently reliable, despite the taint:

"We consider the following seven factors, adopted from United States v.. Wade, 388 U.S. 218, 241 (1967): (1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused's actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed [to the reviewing court] concerning the conduct of the lineup."
The appeals court concluded that the victim's in-court identification of Cain was sufficiently purged of the taint of the inadmissible out-of-court identification:
In their totality, the seven Wade factors support admissibility: (1) Prior to the photograph lineup identification, the victim had a sufficient opportunity to observe the offender, viewing him clearly for thirty seconds at a distance of about twenty feet; (2) there were no discrepancies between the victim's pre-lineup identification and Cain's actual description; (3) the victim did not identify any other person prior to the lineup; (4) the photograph lineup was the victim's first picture identification of Cain; (5) the victim had not previously failed to identify Cain as the offender; (6) there were only four days between the incident and the photograph lineup; and (7) the facts of the photograph lineup indicated that the lineup was impermissibly suggestive because Cain was the only pictured individual with a white beard.

Hence, the appeal was denied, and all of the convictions were upheld.

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