Photo array was not impermissibly suggestive

State v. Brandon B. Smiley, 2022AP1522-CR, District 4, 6/2/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Smiley's claim that the photo array shown to A.B., the complaining witness, was impermissibly suggestive and, therefore, her (not very confident) identification of him after looking at the array should have been suppressed.

Photo arrays may be suggestive “in several ways—the manner in which the photos are presented or displayed, the words or actions of law enforcement officials overseeing the viewing, or some aspect of the photographs themselves.” State v. Mosley, 102 Wis. 2d 636, 652, 307 N.W.2d 200 (1981), citing Powell v. State, 86 Wis. 2d 51, 62-63, 271 N.W.2d 610 (1978). Smiley does not challenge the manner in which the the officer presented the photographs to A.B., so the sole issue is whether some aspect of the photographs themselves render the array impermissibly suggestive. (¶26).

A photographic array is not impermissibly suggestive merely because the individuals in the array differ in appearance. Mosley, 102 Wis. 2d at 654; Powell, 86 Wis. 2d at 67. However, it may be impermissibly suggestive if it the photograph of the suspect “is in some way emphasized.” Simmons v. United States, 390 U.S. 377, 383 (1968).   (¶27). "One way in which a photograph may be emphasized is if there are significant differences between the photographs in the array with respect to some characteristic that is ‘directly related to an important identification factor,’ meaning a significant feature or description given of the perpetrator." At the same time, "the mere presence of a ‘unique identifying feature’ in the defendant’s photograph does not by itself satisfy a defendant’s burden. .... The inquiry requires ‘a case-by-case application of the rule to the particular facts of each case and must be determined in light of the totality of the surrounding circumstances.’” (¶28 (quoting Mosley, 102 Wis. 2d at 654, and Powell, 86 Wis. 2d at 63, 67)).

Smiley contends the array in his case was impermissibly suggestive because his photograph is the only one that depicts a “light skinned” African American man with “light” or “bright” eyes. According to Smiley, these features rendered his photograph “unique in a manner directly related” to A.B.’s description of the perpetrator as a lighter-complexioned African American man, or a man of “mixed race.” (¶29). The court of appeals isn't persuaded for the following reasons:

1. A.B.’s description of the perpetrator was fairly generic and did not contain any identifying features that were unique. "A.B. described a tall, lean, light- complexioned African American or multiracial man in his 20s with short curly hair, and all six photographs depict men who fit that general description. Indeed, A.B. herself struggled to identify the perpetrator in the array." So did the circuit court. (¶¶30-31).

2. Even if Smiley’s complexion was the lightest of the six men in the array, there's no reason to believe A.B. would have been drawn to identify him on that basis because all six photographs fit A.B.'s very general description of "light skin" (rather than, for instance, “very light” or some other additional detail about skin tone). (¶32).

3. The "brightness" of Smiley’s eyes doesn't render the array impermissibly suggestive because the circuit court found as a matter of fact that there was a second photo with “similarly vibrant eyes" and because, in any event, A.B. did not mention the perpetrator’s eyes at all when she described him to police; thus, his eyes wasn't a unique identifying feature. (¶¶33-35).