Motion to Suppress Evidence Denied

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Melvin Lidall Terry

Case No.: 2017AP1625-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Motion to Suppress Evidence Denied

Melvin Lidall Terry appeals from a judgment of conviction and an order denying his motion for a new trial. Terry was convicted of three charges—first-degree reckless homicide, first-degree recklessly endangering safety, and felon in possession of a firearm—in connection with the shooting death of Naurice Elliott.

Terry argues that the trial court erred when it denied his pretrial motion to suppress testimony from a nearby neighbor who witnessed the shooting and who had, shortly afterward, picked Terry out of a group of three people sitting on a curb and identified him as the shooter. Terry argues that the identification should have been suppressed under the standard for out-of-court showup identifications that is set forth in State v. Dubose, 2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582. He argues in the alternative that the procedure used for the out-of-court identification was impermissibly suggestive and unreliable such that it violated his right to due process. We conclude that the Dubose showup standard is inapplicable here because unlike the showup addressed in Dubose that involved a witness presented with a single suspect, the out-of-court identification made here involved a witness presented with three suspects. We further conclude that Terry has not met his burden of showing that the procedure—an officer presenting the witness with three subjects sitting on a curb without telling the witness which one was the suspect—was impermissibly suggestive. It was therefore not a violation of Terry’s right to due process.

Terry also argues that it was error for the postconviction court to deny his motion for a new trial without a hearing. He argues that he is entitled to an evidentiary hearing on his claim that trial counsel rendered constitutionally ineffective assistance by failing to present expert testimony on the reliability of eyewitness identification. We conclude that Terry has not shown that the presentation of research on eyewitness identification would have created a reasonable probability of a different result, or that the failure to present such evidence undermines confidence in the outcome. The record reflects that Elliot’s best friend Thomas had seen Terry before, had been with Elliot when he had contact with Terry during a drug deal earlier in the day, was with Elliot when both were confronted by Terry and realized Terry had a gun, and was attempting to drive away with Elliot in a car when Terry shot Elliot in the head. Thomas unequivocally identified Terry as the shooter. We therefore affirm.

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