WI Court of Appeals rules accidental ID of defendant may be inadmissible.

• Author: Ziemer, David

Byline: David Ziemer

An "accidental identification" of a defendant, out-of-court, is unreliable and must be suppressed, the Wisconsin Court of Appeals held on Sept 28, where it occurs just outside the courtroom on a day when the witness expects to see the alleged perpetrator.

In 2002, a Muskego detective saw two vehicles - a white van and a red pickup truck - speeding and driving recklessly. An accident resulted from the reckless driving, and the driver of the white van left the scene.

Alan R. Stuller witnessed the accident, but could only identify the driver of the van as a white male. He was not asked to make an identification of the driver from any photo array or lineup procedure.

Brian Hibl was arrested, admitted being the driver of the white van, and acknowledged he may have contributed to the accident. Hibl was charged with one count of causing great bodily harm to another by reckless driving, and two counts of causing bodily harm by reckless driving.

Stuller was subpoenaed as a witness for trial. Prior to trial, in a hallway outside of the courtroom, Stuller identified Hibl as the driver of the white van. He subsequently identified Hibl in the courtroom during the trial.

Hibl moved for a mistrial, the State did not object, and the circuit court declared a mistrial. Hibl then moved to suppress the pretrial and in-court identifications. Waukesha County Circuit Court Judge Paul F. Reilly granted the motion.

The State appealed, but the court of appeals affirmed in a decision written by Judge Harry G. Snyder and joined by Judge Daniel P. Anderson. Judge Richard S. Brown dissented.

The court began with a discussion of the Wisconsin Supreme Court's recent decision in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, which abrogated the methodology for determining admissibility of out-of-court identifications that had been established in State v. Wolverton, 193 Wis.2d 234, 533 N.W.2d 167 (1995)(Dubose was decided after the trial court's holding).

In Dubose, the court held that a showup identification is inadmissible unless the showup procedure was necessary.

In light of Dubose, the court of appeals concluded, had the police or the prosecutor arranged the confrontation between Hibl and Stuller, the identification would have to be suppressed as an unnecessary and suggestive action.

However, the circuit court found that the encounter was accidental, rather than intentional, and the Dubose analysis concerning necessity is inapplicable.

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