Petition for Writ of Certiorari — Esser v. Michigan

Supreme Court brief1995

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O5-7 JUN 29 9%

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

DANIEL ALLEN ESSER,

Petitioner,

Vv.

STATE OF MICHIGAN,

Respondent.

Petition for a Writ of Certiorari to the

Michigan Supreme Court

PETITION FOR A WRIT OF CERTIORARI

JON D. VANDERPLOEG *

SMITH, HAUGHEY, RICE

& ROEGGE, P.C.

200 Calder Plaza Building

Grand Rapids, MI 49503

(616) 774-8000

Attorney for Petitioner

* Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

I. Did the trial court err in refusing to enter a judg-

Il.

iil.

ment of acquittal where the court properly suppressed

evidence of the victim’s identification of the peti-

tioner in a photographic lineup but there were no

objective indicia that the victim’s in-court identifica-

tion was independent of that lineup?

Did the trial court err in refusing to declare a mis-

trial or grant petitioner’s motion for a new trial

where evidence of a photographic lineup identifica-

tion was improperly placed before the jury through

police misconduct?

Did the trial court err in refusing to suppress state-

ments attributed to petitioner secured in a pre-

textual traffic stop effectuated primarily to inter-

rogate petitioner on an unrelated matter?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ................

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STATEMENT OF GROUNDS UPON WHICH JURIS-

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CONSTITUTIONAL PROVISIONS AND STATUTES

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REASONS FOR GRANTING THE PETITION ..........

I. THE TRIAL COURT ERRED IN REFUSING

TO ENTER A JUDGMENT OF ACQUITTAL

OR ORDER A NEW TRIAL WHEN FALSE

EVIDENCE OF AN EXTRAJUDICIAL IDEN-

TIFICATION WAS INTERJECTED AS A

RESULT OF POLICE MISCONDUCT ..............

A. Esser’s Sixth and Fourteenth Amendment

Rights Were Violated by the Trial Court’s

Refusal to Comply With Important Constitu-

tional Requirements in Considering the Inde-

pendence of the Victim’s Jn Camera Identifi-

1. Prior relationship with or knowledge of

DSB SER IN as aa ee

2. The opportunity to observe the offense....

3. Length of time between the offense and

the disputed identification —.........................

4. Accuracies and discrepancies in the pre-

lineup or show-up description and the

petitioner’s actual description ...................

(iii)

TABLE OF CONTENTS—Continued

5. Any previous proper identification or fail-

ure to identify petitioner ................2020000....

6. Any identification prior to line-up or

show-up of another person as petitioner..

7. The nature of the alleged offense and the

physical and psychological state of the

victim predicated upon recognition of the

fact that in situations perception will

become distorted and any strong emotion

will adversely affect not only perception,

I isaac eis ccs ematical

8. Any idiosyncratic or special features of

I iia sis ssaccpnitsibactgieitiacaiactbanialliciian died

B. Esser’s Inability to Conduct Cross-

Examination on the Out-of-Court Identifica-

tion Violates His Sixth Amendment Rights....

II. THE TRIAL COURT ERRED IN REFUSING

TO SUPPRESS EVIDENCE OBTAINED

THROUGH A PRETEXTUAL TRAFFIC STOP

EFFECTUATED PRIMARILY TO INTER-

ROGATE THE PETITIONER ON AN UN-

RELATED MATTER IN A CUSTODIAL

Page

ER RIN Ry. HON TRE INN ET FONE +

TABLE OF AUTHORITIES

CASES Page

Beckwith v. United States, 425 U.S. 341 (1976).... 22

Berkemer v. McCarty, 468 U.S. 420 (1984) ............ 23, 24

Brinegar v. United States, 338 U.S. 160 (1949)....... 23

California v. Green, 399 U.S. 149 (1970) ................ 19

Chambers v. Mississippi, 410 U.S. 284 (1973)......... 18

Davis v. Alaska, 415 U.S. 808 (1974) ...................... 18

Delaware v. Fensterer, 474 U.S. 15 (1985) -........... 18, 20

Delaware v. Prouse, 440 U.S. 648 (1979) ................. 23

Michigan v. Hill, 429 Mich. 382, 415 N.W.2d 193

2 SMR se Ont ae ta reer eB eny EMI CEM Os hee, oe eRe 22

Michigan v. Kalchar, 400 Mich. 78, 252 N.W.2d 807

hg yg SRD ES HEE ah eA pier SER ia MONTE ecu nD 8, 14, 15,17

Michigan v. Walker (on remand), 374 Mich. 331,

ph Bw | | BRN ERR eee ener os 22

Miranda v. Arizona, 384 U.S. 486 (1966) ............. 22, 23, 24

Ohio v. Roberts, 448 U.S. 56 (1980) ......................... 18

Pointer v. Texas, 380 U.S. 400 (1965) -........00.0000..... 18

Terry v. Ohio, 392 U.S. 1 (1968) ..........................---- 23

United States v. Ash, 413 U.S. 300 (1973) ............... 13

United States v. Brignoni-Ponce, 422 U.S. 873

I snecedis acca pcctile Grpeaiclin oan hla toe ab alinibipiasonciebbacasirs 23

United States v. Owens, 484 U.S. 554 (1988)........ 20

United States v. Wade, 388 U.S. 218 (1967) ........ 8, 12, 14,

15, 17, 19

CONSTITUTION, STATUTES AND RULE

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Mich. Comp. Laws Annot. 750.335 (a) -............-...-....-- 3,17

Mich. Comp. Laws Annot. 257.602; 257.602 (a) ......... 23

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No.

DANIEL ALLEN ESSER,

Petitioner,

STATE OF MICHIGAN,

Respondent.

Petition for a Writ of Certiorari to the

Michigan Supreme Court

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The March 31, 1995 order of the Michigan Supreme

Court was not officially reported. It is reprinted in Ap-

pendix A at la. The August 26, 1994 order of the

Michigan Court of Appeals was not Officially reported.

It is reprinted in Appendix B at 2a. The June 21, 1994

order of the Thirteenth Judicial Circuit Court was not

Officially reported. It is reprinted in Appendix C at 3a.

The January 4, 1993 opinion of the Eighty-Sixth Judicial

District Court was not officially reported. It is reprinted

in Appendix D at 4a. The January 5, 1993 Opinion of

the Eighty-Sixth Judicial District Court on Motion for

Judgment of Acquittal or Mistrial was not officially re-

ported. It is reprinted in Appendix E at 6a. The March

29, 1993 opinion of the Eighty-Sixth Judicial District

Court on Motion for Judgment of Acquittal or New

Trial was not officially reported. It is reprinted in Ap-

pendix F at 21a.

STATEMENT OF GROUNDS

UPON WHICH JURISDICTION IS SOUGHT

Petitioner seeks review by this Court under Rule

10.1(c) for the reason that the courts of the State of

Michigan have decided certain federal constitutional ques-

tions in a manner which conflicts with the applicable deci-

sions of this Court and for the reason that the state court

has decided certain unsettled, but important questions of

federal constitutional law, which should be decided by

this Court. A review on writ of certiorari is sought of

the decision of the Michigan Supreme Court denying peti-

tioner’s application for leave to appeal which was issued

on March 31, 1995.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U S. Const. Amend. IV

Unreasonable searches and seizures. The right of

the people to be secure in their persons, houses,

papers and effects against unreasonable searches and

seizures, shall not be violated and no Warrants shall

issue, but upon probable cause, supported by Oath

or affirmation, and particulary describing the place

to be searched and the persons or things to be seized.

U.S. Const. amend. V

Criminal actions—provisions concerning—due proc-

ess of law and just compensation clauses. No per-

son ... Shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty or property, without due process of law... .

Free oer

U.S. Const. amend. VI

Rights of the accused. In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

U.S. ConsT. amend. XIV

Section 1, Citizens of the United States. . . . No state

shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty or property, without due process of law; nor

deny any person within its jurisdiction the equal

protection of the laws.

Mich. Comp. Laws Annot. 750.335(a)

Indecent exposure. Any person who shall knowingly

make any open or indecent proposal of his or her

person or of the person of another shall be guilty

of a misdemeanor, punishable by imprisonment in the

county jail for not more than one year, or by fine

of not more than $500, or if such person was at

the time of said offense a sexually delinquent person,

may be punishable by imprisonment in the state

prison for an indeterminate term, the minimum of

which shall be one day and the maximum of which

Shall be life, provided that any other provision of

any other statute notwithstanding, said offense shall

be triable only in a court of record.

STATEMENT OF THE CASE

This matter arises out of an incident which occurred

on July 30, 1992 in Garfield Township, Grand Traverse

County, Michigan. On that date Autumn Rademacher,

then 16 years old, went on her “daily run”, (Trial tran-

script, page 19 “T-19”). Rademacher resided on Daisy

Lane in the Meadow Lane Village Trailer Park west of

U.S. Highway 31 in Garfield Township. (T-18, 19).

Each day she would run approximtaely four miles on a

route that took her from her home out of the north end

of the trailer park on Lady Slipper Lane onto McCrae

Hill Road then to U.S. 31 and back along the same

route. (T-20). As she was re-entering the trailer park

along Lady Slipper Lane, jogging in a westerly direction

near the end of her run, she noticed a small, white car

that looked like a Yugo with blue squares on the side

and back. (T-21). The car was facing Rademacher and

the engine was running. (T-22). As Rademacher jogged

by the vehicle, she heard a man in the car say, “Hey,

sweetheart” and when she looked she saw that the man

had no shirt, his pants were pulled down to his ankles

and he was masturbating with both hands over his penis.

(T-25, 26). Rademacher then began to run more

quickly, cursing to herself as she ran. (T-27). She ran

toward a friend’s house and, as she did so, noticed that

it appeared the car was following her from some distance

(T-29). She knocked on the door of the friend’s house

for about thirty seconds, but no one was there. (T-31).

She then ran to her home and told her mother what had

happened. (T-34). Rademacher’s mother notified the

trailer park manager, Nancy Hilliard, who suggested that

Rademacher call the police. (T-34). Rademacher’s

mother called the police about twenty-five minutes after

the incident occurred. (T-53).

Deputy Scott Wooters of the Grand Traverse County

Sheriff's Department came to Rademacher’s home.

Rademacher described the perpetrator as a heavy set

white male with wire rim glasses and a lot of black curly

hair over his stomach and chest. (T-53, 54). She also

described the vehicle. Deputy Wooters issued a BOL

(“be on the lookout”) describing the vehicle and perpe-

trator which was broadcast to area law enforcement

agencies. (T-116).

Later that evening, Deputy Terry Skurnit of the Antrim

County Sheriff Department noticed that Daniel Esser’s

vehicle appeared similar to the one involved in the inci-

dent. (T-117). Esser resides in an adjacent county ap-

proximately thirty miles or about a forty-five minute drive

from the scene of this incident. Skurnit first surveilled

the Esser home, but waited until Esser got into his vehicle

before effectuating a traffic stop primarily because Esser’s

vehicle fit the description broadcast earlier that day by

the Grand Traverse County Sheriff Department (T-117).

Skurnit photographed the vehicle and sent the picture to

the Grand Traverse County Sheriff Department. (T-118).

The photograph was shown to Rademacher who indicated

that it did not look like the vehicle involved in the inde-

cent exposure incident. (T-55).

In spite of this, Deputy Wooters persisted in his belief

that Esser had committed this offense and considered no

other suspects. Wooters prepared a photographic lineup

consisting of six individuals including Esser to be shown

to Rademacher. On August 10, 1992 he took the photo-

graphic lineup to Rademacher’s home and she identified

Esser as the perpetrator. (T-32).

This lineup identification was the predicate for Esser’s

arrest and the centerpiece of the prosecution’s case against

Esser. In his opening statement, the assistant prosecuting

attorney told the jury:

You're going to learn that—on August 10th, I be-

lieve is the date, that Miss Autumacher (sic)—

excuse me, Miss Rademacher went down to the

police—well, actually the police went to her house,

Deputy Scott—Scott Wooters, and she picked out

the petitioner’s photograph from six other—he was

included in six other photographs, and said, ‘that is

the man—that’s the man who exposed himself to

myself,’ and you’re going to find today that she’s

going to identify Daniel Esser as the individual who

exposed himself to her. (T-16). ;

Rademacher, the prosecution’s first witness, emphasized

on direct examination that she identified petitioner in the

photograph lineup. Deputy Wooters was the prosecu-

tion’s next witness. Deputy Wooters testified that a photo-

graphic lineup, which had been marked as a proposed

exhibit at that juncture, was the actual lineup shown to

Rademacher on August 10 in spite of the fact that at the

time he knew this statement was false. Initially, Wooters

testified:

Q. I’m showing you People’s proposed Exhibit

#1, do you recognize that, sir?

A. Yes, I do.

Q. And how do you recognize that?

A. It’s the photo lineup that I put together and

took to Autumn Rademacher’s house that day.

(T-64, emphasis supplied).

* % * *

Q. Okay. Now, you took this array over to Au-

tumn Rademacher’s home?

A. Yes.

Q. And did you show her this array?

A. Yes. (T-64, 65, emphasis supplied).

* * * *

Q. How can you be sure that these six pictures

are the same ones that you took to her?

A. Theyre obtained from the same file and

they’re filed by number and name and after I put

the photo lineup together, I listed the name of each

person and their jail number and this morning at

the Sheriff's Department looked through the jail file

and retrieved the five photographs that I had used

that day. (T-66, emphasis supplied).

At that time, proposed Exhibit #1 was shown by the

prosecutor to defense attorney Robert Tubbs. Attorney

Tubbs noted a discrepancy between the photographs in

people’s proposed Exhibit and a copy of the photo lineup

provided to petitioner’s counsel prior to trial and the

photographs marked as a trial exhibit. The jury was

excused and petitioner’s counsel moved for dismissal or

mistrial. During argument on these motions, Deputy

Wooters conceded:

Those are the photographs that I reecived this morn-

ing from the J file that I was preparing for the case.

When I looked in the file and found these two photo-

graphs next to the earlier or later photographs of

these two subjects. / coulidn’t remember which ones

I had used in the lineup. (T-69, emphasis supplied ).

Deputy Wooters indicated that although he believed the

photographs presented at trial were of the same six per-

sons, he learned the morning before this trial that the

files of certain of these individuals contained more than

one photograph and he could not remember which photo-

graph of each individual was shown to Rademacher.

(T-79). Wooters confessed:

I feel that this morning by chance I ended up with

different shots of the same people. (T-79).

The differences between the photographs were substantial.

For example, one of the individuals in the lineup had a

beard in the photograph provided to petitioner’s counsel,

but no beard in the photograph presented in court.

(T-72). In spite of this perjurious testimony by Deputy

Wooters describing the lineup which was the predicate of

Rademacher’s arrest and the victim’s identification, the

trial court refused to grant a mistrial or dismiss the case.

The court ruled that the complaining witness’ positive

identification in camera precludes dismissal based upon an

improper lineup. (T-84).

Evidence was presented at trial which established that

Esser regularly visited the trailer park in which Rade-

macher resided, which may have led to her misidentifica-

tion of him. Esser’s brother resided in the park and Esser

had been to the park on a number of occasions, both to

visit his brother and to pick up mail for his brother who

was then working in South America. (T-109).

The trial in this matter took place on January 5,

1993. With the trial court having ruled all evidence of

the identification through the photographic lineup in-

admissable, the only evidence linking Esser to this crime

was Rademacher’s in-court identification made more than

five months after the incident. Rademacher conceded

that she had not seen the perpetrator since she saw him

for, at most, five seconds on two different occasions on

July 30, 1992.

On June 20, 1994 the Thirteenth Circuit Court for the

State of Michigan entertained argument on Esser’s appeal

of right. The Circuit Court affirmed the ruling of the

trial court. In ruling upon Esser’s sixth amendment chal-

lenges, the court made no comment with regard to the

false testimony of the investigating police officer nor did

the Circuit Court examine the Wade or Kalchar’ factors

to determine whether Rademacher’s in camera identifica-

tion was independent, repeating the trial court’s error.

An application for leave to appeal was filed and leave

was denied by the Michigan Court of Appeals on August

20, 1994. Petitioner’s application for leave to appeal was

denied by the Michigan Supreme Court on March 31,

1995.

Esser seeks a writ of certiorari from this Court. Esser

seeks to have his conviction overturned and a judgment

of acquittal entered. Alternatively, Esser seeks an order

vacating his conviction and remanding the case for a new

trial.

1United States v. Wade, 388 U.S. 218 (1967); Michigan ».

Kalchar, 400 Mich. 78, 252 N.W.2d 807 (1977).

REASONS FOR GRANTING THE PETITION

I. THE TRIAL COURT ERRED IN REFUSING TO

ENTER A JUDGMENT OF ACQUITTAL OR ORDER

A NEW TRIAL WHEN FALSE EVIDENCE OF AN

EXTRAJUDICIAL IDENTIFICATION WAS INTER-

JECTED AS A RESULT OF POLICE MISCONDUCT.

On August 14, 1992 petitioner was charged with in-

decent exposure. It is undisputed that Esser would not

have been arrested but for an identification purportedly

made by the victim after viewing a photographic lineup

on August 10, 1992 at which neither Esser nor his at-

torneys were present.

Prior to that time, Rademacher had been shown photo-

graphs of Esser’s vehicle and indicated that she did not

believe it was the vehicle driven by the perpetrator. Yet,

the police persisted in their belief that Esser was the

perpetrator. Rademacher was shown six photographs of

persons allegedly similar in description to the perpetrator.

These photographs included a picture of Esser. Rade-

macher identified Esser, indicating that the hair was the

same as the perpetrator’s and the glasses were the same,

but she also indicated the photographic image of Esser

appeared thinner than the perpetrator. Plaintiff had pre-

viously told Deputy Wooters that the suspect had a lot

of dark, curly chest hair. At trial it was established that

Esser has virtually no chest hair and has two distinctive

tatoos on his right arm, one on the forearm and one on the

bicep which were never described by Rademacher as being

present on the perpetrator.

Prior to trial, petitioner’s counsel requested that the

Grand Traverse County Sheriff Department produce re-

productions of the photographs used in the array shown to

the complaining witness. Petitioner’s counsel was advised

that reproductions of the photographs would not be made

available, but counsel was invited to view those photo-

graphs at Deputy Wooters’ office. Petitioner’s counsel

were shown a photographic lineup that was represented

by Deputy Wooters to have been the lineup shown Rade-

macher. At the request of petitioner’s counsel, Deputy

Wooters provided a xerographic copy of the six photo-

graphs viewed by petitioner’s counsel. When a photo-

graphic array was marked as an exhibit at the time of

trial, petitioner’s counsel noted discrepancies between the

photographs shown to petitioner’s counsel previously and

those presented by Deputy Wooters at trial.

Deputy Wooters deliberately failed to advise the prose-

cutor, court or petitioner’s counsel in advance of trial of

his inability to reproduce the lineup shown to Rade-

macher. Instead, Wooters knowingly misrepresented to

the court in the presence of the jury that the photographs

were the ones shown to Rademacher until inconsistencies

between those photographs and the ones previously shown

to petitioner’s counsel were noted. There can be no

doubt that Wooters perjured himself in an effort to mis-

lead the court, the parties and the jury in an attempt to

secure a conviction of Esser.

After an extensive discussion outside the presence of

the jury, the court ruled that the lineup evidence would

be inadmissible, but denied petitioner’s counsel’s motion

for a judgment of acquittal. On appeal, the District

Court’s exclusionary ruling has never been challenged by

the petitioner, nor by the respondent by way of a cross

appeal. After recalling the jury, the court gave a cau-

_ tionary instruction with regard to this evidence.* The

2 THE COURT: Okay, everybody’s here, you may be seated and

this is going a little slower than we expected, we had—had some

problems and I’ll be pointing this out again at the end of trial, but

in [sic] turns out that we cannot ascertain today exactly which

pictures were shown to Autumn Rademacher by Detective Wooters,

from which group he picked out a picture of Mr. Esser, so we

determined that the jury is gonna have to completely disregard all

testimony, all evidence, having to do with this photographic lineup

of pictures. It’s—It’s, as I say, it’s not possible today for us to

court’s instruction was inadequate as the jury had already

heard both Rademacher and Wooters testify as to her

more contemporaneous identification of the petitioner in

the photographic lineup.

Under rules promulgated by the Michigan Supreme

Court, the trial court had special responsibilities in the

conduct of a criminal jury trial:

The trial court must control the proceedings during

trial, limit the evidence and arguments to relevant

and proper matters, and take appropriate Steps to

ensure that the jurors will not be exposed to infor-

mation or influences that might effect their ability to

render an impartial verdict on the evidence pre-

sented in court. MCR 6.414(A) [emphasis supplied. ]

The trial court was unable to fulfill its responsibility as

a result of the inability to reproduce the photographic

lineup, and more importantly, because of the willful

obfuscation of this fact from the court and counsel by

Deputy Wooters.

A. Esser’s Sixth and Fourteenth Amendment Rights

Were Violated by the Trial Court’s Refusal to

Comply With Important Constitutional Require-

ments in Considering the Independence of the

Victim’s In Camera Identification at Trial.

The trial court erred in refusing to grant a judgment

of acquittal at trial or following petitioner’s post-trial

motion seeking a judgment of acquittal. The court prop-

reconstruct exactly what pictures were shown to her, so it’s not

possible for you to see whether or not it was—a fair and reason-

able sampling of other pictures of people of the same rough de-

scription, so because it’s not possible to do that, the—the effect

of that identification is that it should be completely thrown out

and we’re not gonna vse it at all. You’re not gonna be seeing any

of those pictures and the fact that she did pick out a picture of

Mr. Esser has—has no value in the trial from this point forward

and it’s—you’re not gonna be hearing any more evidence at all

about that, so with that, are there—do you have any other ques-

tions Detective? (T-104-105)

erly suppressed Rademacher’s out-of-court identification of

the petitioner, but erred in refusing to suppress her in

camera identification. The court’s failure to do so is

palpable constitutional error which should be rectified and

a judgment of acquittal entered.

The constitutional rights of the accused inherent in

witness identification were identified in United States v.

Wade, 388 U.S. 218 (1967). In that case, this Court

noted that all courts must be extremely sensitive to the

application and use of witness identification evidence at

trial. The Court related, in some detail, the lamentable

history of miscarriages of justice wrought on innocent

people through the misidentification by eye witnesses. The

use of testimony by a victim to elicit identification evi-

dence is peculiarly riddled with enumerable dangers and

variable factors which might seriously, or even crucially,

derogate from the ability of the accused to receive a fair

trial. Once a witness is selected in a lineup, the victim

will not go back on her word so, for all practicable pur-

poses, the identification of the perpetrator is made at the

pre-trial lineup. Suggestion is usually not the result of

police misconduct, but is simply a strong possibility in-

herent in the process. The police already have a suspect

in mind and are eager to have the witness identify that

person, as evidenced in this case where, in spite of dis-

crepancies in the physical description of Esser and the

victim’s inability to identify his vehicle, the police refused

to consider any other suspect. According to this Court,

the susceptibility to suggestion is greater where the wit-

ness’s observation of the perpetrator is insubstantial, as

it is in this case.

In Wade, this Court held that a physical, pre-trial line-up

is a critical stage at which the defendant is afforded a

right to counsel under the fifth amendment. This ruling

was based, in part, upon the confrontation clause of the

sixth amendment as well. However, pre-custody photo-

graphic lineups do not afford this constitutional protec-

tion. United States v. Ash, 413 U.S. 300 (1973). This

distinction between photographic and personal lineups was

based in large part upon this Court’s conclusion that a

photographic lineup is not a “critical stage” and is more

akin to a part of the mere investigative processes, like

witness interviews, than an actual physical confrontation

at trial. However, a defendant is also better able to re-

construct this “confrontation” at trial as a substitute for

the pretrial confrontation when a photographic lineup is

involved. Mr. Justice Stewart noted in a concurring opin-

ion in Ash:

A photographic identification is quite different

from a lineup, for there are substantially fewer pos-

sibilities of impermissible suggestion when photo-

graphs are used, and those unfair influences can be

readily reconstructed at trial. It is true that the

defendant’s photograph may be markedly different

than those displayed, but this unfairness can be dem-

Onstrated at trial from an actual comparison of the

photographs used or from the witness’s description

of the display . . . In short, there are few possibili-

ties for unfair suggestiveness—and those are rather

blatant and easily reconstructed. Accordingly, an

accused could not be foreclosed from an effective

cross-examination of an identification witness simply

because his counsel was not present at the photo-

graphic display. For this reason, a photographic

display cannot be fairly displayed a “critical stage”

of the prosecution.

413 US. at 324-325.

Because the police were unable to reproduce the photo-

graphic lineup and neither Esser nor counsel were present

at the time of the photographic lineup, there was literally

no opportunity to cross-examine the witnesses on the

photographic array, let alone the opportunity for effective

cross-examination required by the sixth amendment. Cross

examination upon an in-court identification is insuffi-

cient to rectify a deprivation of the sixth amendment right

to effectively cross-examine the out-of-court identification.

Before permitting evidence of an in camera identifica-

tion to be introduced when an out-of-court identification

has been excluded, the court must determine whether the

witnesses’ in camera identification is independent. The

burden is upon the prosecution to show that the in

camera identification is truly “independent” by clear and

convincing evidence, or the in camera identification must

be excluded as well. Wade, supra, 218 U.S. at 240; Mich-

igan v. Kalchar, 400 Mich. 78, 91, 252 N.W.2d 807

(1977). The trial court cannot merely accept, at face

value, the statement of the witness that her in-court iden-

tification is independent. Wade at 240-241, Kalchar,

supra, at 92.

In Wade, the court identified six factors to be con-

sidered in determining the independence of the identifi-

cation—factors which are neither exclusive nor _ all-

inclusive. In Kalchar, the Michigan Supreme Court re-

quired consideration of two additional factors [1.) the

nature of the alleged defense; and 2.) the physical and

psychological state of the victim and any idiosyncratic or

special features of the defendant]. Both the trial court

and Circuit Court failed to articulate application of the

“clear and convincing” evidentiary standard. Both courts

also failed to apply any of the factors articulated in Wade

or Kalchar and, in disregard of this Court’s and the Michi-

gan Supreme Court’s mandates, but merely relied upon

the complaining witness’s self-assurance as to her ability

to identify the petitioner.*

3In denying petitioner’s Motion for Judgment of Acquittal and

New Trial, the trial court stated:

It would seem to me that . . . she would be left with such a

strong recollection of the picture—not the man but the pic-

ture—that she would walk into a courtroom five or six months

later and look at somebody and say, “that’s him,” and what she

would really be doing without knowing it would be—would be

saying, “that man looks like the picture I saw” ... I don’t

think it to be unreasonable or unrealistic to think that a—a

teenage girl jogging by a car, looking to her side and suddenly

The foregoing is an analysis of the Wade factors (fac-

tors 1 through 6) and the two additional Kalchar factors

(factors 7 and 8) as applied to this case:

1. Prior relationship with or knowledge of the

petitioner.

The complaining witness denied under oath any prior

relationship with or knowledge of the petitioner.

2. The opportunity to observe the offense.

This factor includes the length of time of the obser-

vation, lighting, noise or other factors affecting sensory

perception and proximity to the alleged criminal act.

The totality of the witness’s alleged observation of the

perpetrator consisted of two observations of not more

than five seconds, one of which occurred while the victim

was running. However, the victim also spent much of

this time observing things other than the perpetrator’s

facial appearance, including his penis, the fact that both

hands were wrapped around the penis moving up and

down, the vehicle and detailing on the vehicle, the fact

that the perpetrator had a lot of dark, curly chest hair

and what the vehicle was doing.

3. Length of time between the offense and the

disputed identification.

The complaining witness claims to have been able to

identify petitioner in court based upon two observations

there’s a man sitting in a car masturbating and looking at her,

that she would see the face for a long time, even though she

only saw him for a short time then. This is the kind of thing

people have nightmares over. I think it could very well leave a

strong enough impression that six months later she walked into

the courtroom and saw him that she would say, “that is him

unquestionably”, that that is very plausible ... All in all...

it obviously formed a [sic] important piece of evidence in the

conviction, and I think that’s as it should be under the law.

The jury has spoken and I’m gonna allow the verdict to stand

and deny the motion for new trial. (M 40-48).

of appreciably less than five seconds, more than five

months after the incident occurred.

4. Accuracies and discrepancies in the pre-lineup or

show-up description and the petitioner’s actual

description.

The witness was certain that the perpetrator had a

lot of dark, curly chest hair, yet Esser has virtually

none. So too, the victim noted that the facial appear-

ance of the person she identified in the photograph dif-

fered from that of the perpetrator in that the person

depicted in the photograph was thinner than the perpe-

trator in the face. Also, the witness did not identify two

distinctive tatoos on Esser’s right arm.

5. Any previous proper identification or failure to

identify the petitioner.

The complaining witness, when shown a picture of

Esser’s vehicle, indicated that it was not the vehicle she

saw the perpetrator drive on the date of the incident.

6. Any identification prior to line-up or show-up of

another person as petitioner.

The victim did not identify another person as the

perpetrator.

7. The nature of the alleged offense and the physi-

cal and psychological state of the victim predi-

cated upon recognition of the fact that in critical

situations perception will become distorted and

any strong emotion will adversely affect not only

perception, but memory.

The victim, in her written statement to the police pro-

vided the day following the incident, indicated at various

times that she was “frightened,” “scared and _ horrified,”

“frantic,” “in tears” and was “cursing” to herself. This

factor also mandates a consideration of the age and

intelligence of the witness. The complaining witness is

reasonably intelligent, but her age must be considered a

strong factor against her. She was 16 years of age at

the time she made this identification—the age at which an

adolescent knows everything. Humility and admissions

of ignorance are not strong traits among the average

16-year-old.

8. Any idiosyncratic or special features of petitioner.

The only idiosyncratic feature of the person of the

perpetrator described by the complaining witness was the

presence of a lot of dark, curly chest hair. It is undis-

puted that Dan Esser has very little chest hair. More-

over, the witness did not indicate that the perpetrator

had any tatoos. Esser has two distinctive tatoos on his

right arm.

Under any evidentiary standard, using these factors, it

would be impossible for the prosecution to establish that

the in-court identification was truly independent. Given

the “clear and convincing” evidentiary burden placed

upon the prosecution, evidence of the in-court identifica-

tion, as wel! as the out-of-court identification, should have

been suppressed and a judgment of acquittal entered.

On January 5, 1993, petitioner was convicted of

indecent exposure under Mich. Comp. Laws Annot.

750.335(a). In deciding petitioner’s post-trial motion for

a judgment of an acquittal or new trial, the trial judge

ignored the law in this area even after the matter had

been briefed and argued and continued to rely on their

feeling that the victim was certain of her identification.

(Hearing on motion for judgment of acquittal, page 42

“M-42”), in direct conflict with Wade and Kalchar.

Neither the Circuit Court nor the trial court even con-

sidered the factors outlined in that case, nor did either

find that the prosecution had established the independence

of the in-court identification by clear and convincing evi-

dence. In fact the trial court’s comments suggest that it

placed the burden of proof on Esser. (M-42-43). The

trial court ignored Esser’s fundamental constitutional

rights. Reversal and entry of a judgment of acquittal is

mandated under the circumstances.

B. Esser’s Inability to Conduct Cross-Examination on

the Out-of-Court Identification Violates His Sixth

Amendment Rights.

Under the sixth amendment, the accused in a criminal

proceeding has, among other rights, the right to confront

his accusers. The rights of the accused under this con-

frontation clause fall into two broad categories. First,

the accused has a literal right to confront the witnesses

against him at trial—the right of “physical confronta-

tion.” Second, the accused has the right to an oppor-

tunity to effectively cross-examine the witnesses against

him and expose to the jury facts from which the ju-

rors, as sole triers of fact and credibility, could appro-

priately draw inferences relating to the reliability of those

witnesses. Delaware v. Fensterer, 474 U.S. 15, 19

(1985). The sixth amendment’s confrontation clause is

made applicable to the states through the fourteenth

amendment. Ohio v. Roberts, 448 U.S. 56, 62 (1980);

Pointer v. Texas, 380 U.S. 400, 403-405 (1965); Davis

v. Alaska, 415 U.S. 308, 315 (1974).

Denial of the defendant’s opportunity to effectively

cross-examine a witness is considered a _ constitutional

error of the first magnitude, and no amount of showing

of want of prejudice can cure it. Davis, supra, 415 US.

at 318. Constitutional error requiring entering of a judg-

ment of acquittal exists not only where cross examination

is wholely denied, but when there is any significant dimi-

nution in the ability of defendant’s counsel to effectively

cross examine the witnesses against the accused as it

calls in to question the ultimate integrity of the fact

finding process. Chambers v. Mississippi, 410 U.S. 284,

295 (1973). The most basic right of a criminal defend-

ant is the right to a fair trial at which the witnesses

against the defendant might be meaningfully cross exam-

ined. Wade, supra, 388 U.S. at 223-224.

Esser was denied an opporunity to meaningfully cross

examine Deputy Wooters or Autumn Rademacher on

what was perhaps the most important issue in the case—

Autumn Rademacher’s pre-arrest identification of Daniel

Esser near the time of the incident. The only eye witness

to this alleged offense and the investigative police officer

introduced before the jury compelling testimony upon

which they could not be cross-examined. Petitioner’s

counsel had prepared a significant portion of cross exam-

ination of Deputy Wooters based upon the photographic

lineup. Instead, after the jury had learned through the

testimony of both Deputy Wooters and Rademacher that

she identified the petitioner in a pre-arrest photographic

lineup, petition’s counsel could not cross examine either

witness in this regard because petitioner’s counsel was

neither present at the lineup nor was the lineup able to

be produced at the time of trial.

Independent of the issue of whether the introduction

of this evidence was unduly prejudicial in light of the

victim’s alleged in camera identification, a judgment of

acquittal should be entered. The petitioner’s right to

meaningful cross examine the prosecution’s two most im-

portant witnesses on the most important subject matter

of their testimony denied him the right to a fair trial.

In California v. Green, 399 U.S. 149 (1970) a youth

named Porter, who had identified defendant Green as a

drug supplier both in interviews with the police and at a

preliminary hearing, professed a lapse of memory when

called to the stand at Green’s trial. When the prosecu-

tion offered Porter’s testimony at the preliminary hearing,

the trial judge ruled the evidence admissible and sub-

stantial portions of the preliminary hearing transcript

were read to that jury. This Court rejected defendant's

confrontation clause attack holding that Green’s counsel

had an opportunity to effectively cross-examine Porter at

the preliminary hearing. 399 U.S. at 165. However, the

court did not address the issue of the admissability of

Porter’s pre-trial statements to a police officer concerning

the same events. Jd. at 168-169.

Subsequently, in Fensterer, supra, this Court concluded

that the confrontation clause of the sixth amendment did

not prohibit an agent of the Federal Bureau of Investiga-

tion from testifiyng that a follicle of hair was removed

forcibly even though he could not recall which of three

methods he used in making that determination. In United

States v. Owens, 484 U.S. 554 (1988) this Court deter-

mined that the confrontation clause did not bar testimony

concerning a prior out-of-court identification by a witness

who was unable, because of memory loss, to explain the

basis for his identification at the time of trial. In

Fensterer and Owens, the Court emphasized the defend-

ant’s ability to effectively cross-examine as to the infirmi-

ties in the witness’s respective testimony in concluding

that the constitutional requirement of an opportunity for

effective cross examination was satisfied. In Owens, the

Court stated:

The weapons available to impune the witness’s state-

ment when memory loss is asserted will of course not

always achieve success, but successful cross-examina-

tion is not the constitutional guarantee. They are,

however, realistic weapons, as is demonstrated by

petitioner’s counsel’s summation in this very case,

which emphasized Foster’s memory loss and argued

that his identification of the respondent was the re-

sult of the suggestions of people who visited him in

the hospital.

Owens, 484 U.S. at 560.

In this case, unlike Owens and Fensterer, the “evi-

dence” could not be scrutinized by the jury. In both of

those cases, the defendant had the opportunity to cross-

examine a witness as the infirmities in his testimony, giv-

iliac

ing the jury an opportunity to place little or no weight

on that testimony. In this case, the constitutional error

is more severe because it involves “non-evidence” or evi-

dence that was offered to the jury of the out-of-court

identification which was subsequently excluded. While

the court gave a cautionary instruction which was well

intended, it was inadequate given the testimony the jury

already heard. Petitioner’s counsel could not unring the

bell. More importantly, the only reason the jury was

exposed to this prejudicial non-evidence was the perjury

of the investigating officer who deliberately attempted to

mislead counsel, the court and the jury. Had Deputy

Wooters been candid with the prosecutor or the court,

Rademacher’s testimony never would have been presented

to the jury.

At a minimum, petitioner’s denial of the right to effec-

tively cross-examine Rademacher and Deputy Wooters

requires a new trial at which this evidence will be sup-

pressed and the jury will not be “tainted” by testimony

regarding a pre-arrest identification. However, given the

serious and grievous nature of this constitutional error,

the serious misconduct on the part of Deputy Wooters

and the inability to reproduce the lineup at a new trial

at which Deputy Wooters and the victim could be cross-

examined on the nature of the lineup, a judgment of

acquittal is warranted.

II. THE TRIAL COURT ERRED IN REFUSING TO

SUPPRESS EVIDENCE OBTAINED THROUGH A

PRETEXTUAL TRAFFIC STOP EFFECTUATED

PRIMARILY TO INTERROGATE THE PETITIONER

ON AN UNRELATED MATTER IN A CUSTODIAL

SETTING.

On August 30, 1992, Esser was subjected to a traffic

stop effectuated by Deputy Terry Skurnit of the Antrim

County Sheriff Department. At approximately 8:35 p.m.

Skurnit drove by the Esser residence in Rapid City and

noted similarities between the Esser vehicle and the ve-

hicle described in the BOL (‘be on the lookout”) broad-

cast earlier that day. Rather than approaching the resi-

dence to seek to question Esser directly, Skurnit surveilled

the Esser home, waited in the area and, after Esser left

the residence in his vehicle, effectuated a traffic stop at

which he questioned Esser concerning this incident and

photographed the vehicle.

Skurnit testified to the obvious at trial—that the pri-

mary purpose for stopping the Esser vehicle was to ques-

tion him about the incident which occurred in Grand

Traverse County earlier that afternoon. No traffic cita-

tion was issued to Esser. Skurnit merely questioned him

about the Grand Traverse County incident and photo-

graphed his vehicle without advising Esser of certain of

his constitutional rights as required under Miranda v.

Arizona, 384 U.S. 436 (1966).

Upon receiving a complete copy of the Antrim County

Sheriff Department report prepared by Skurnit, petitioner

promptly requested a Walker hearing.* The hearing was

held on January 4, 1993. The trial court ruled that

statements made by the petitioner during this interroga-

tion were admissible.

The test for determining whether evidence obtained

through an interrogation undertaken without first inform-

ing the individual of his constitutional rights as admis-

sible is whether the defendant was in custody at the time

of the interrogation. E.g., Beckwith v. United States,

425 U.S. 341 (1976); Michigan v. Hill, 429 Mich. 382

415 N.W. 2d 193 (1987). Arrest is not dispositive for

determining whether one is in custody. Rather, the test

for determining custody is whether a person is deprived

of his freedom in a meaningful way under the totality of

4A Walker hearing is a hearing authorized under Michigan v.

Walker (on remand), 374 Mich. 331, 1832 N.W.2d 87 (1965) in

which the defendant may make a constitutional challenge as to the

admissibility of certain forms of evidence prior to trial in a

criminal proceeding.

the circumstances with the key question being whether

the defendant reasonably believes that he was not free to

leave. Miranda, supra, 384 U.S. at 444.

The stopping of an automobile and detention of its

occupant constitutes a “seizure” within the meaning of

the fourth amendment even if the purpose for the stop

is limited and the resulting detention is quite brief.

Delaware v. Prouse, 440 U.S. 648, 653 (1979). How-

ever, in addressing the interrelationship between routine

traffic stops and the requirements of Miranda, this Court

has carved out a narrow exception to Miranda for ques-

tions posed ancillary to a routine traffic stop. Berkemer

v. McCarty, 468 U.S. 420 (1984). _This Court has re-

jected the argument that traffic stops ‘are inherently non-

custodial, agreeing that traffic stops are essentially cus-

todial in nature. 7d. In Michigan the law requires a

motorist to stop and remain for a reasonable time when

directed to do so by a law enforcement officer. Mich.

Comp. Laws Annot. 257.602; 257.602(a) (failure to

stop at the direction of a police officer is a misde-

meanor).

However, probable cause is still required for the traffic

stop in order for it to be valid. Brinegar v. United

States, 338 U.S. 160 (1949). A stop and inquiry of an

individual must be reasonably related in scope to the

justification of its initiation in order for it to avoid trig-

gering the requirements of Miranda. E.g., United States

v. Brignoni-Ponce, 422 U.S. 873 (1975); see also Terry

v. Ohio, 392 U.S. 1 (1968). A fact-based test is used

to determine whether an individual is in “custody” when

questioned pursuant to a routine traffic stop. 468 U‘S.

at 441.

The trial court extended the exception articulated in

Berkemer beyond the boundaries of the fourth amend-

ment. Skurnit admitted that the traffic stop was a mere

pretext for questioning Esser about the Grand Traverse

County incident. He could have questioned Esser at his

home, but waited to effectuate the traffic stop for the

very purpose of enabling him to interrogate Esser in a

more custodial setting. In Berkemer, this Court rejected

petitioner’s argument that suspect need not be advised of

his rights until he is formally placed under arrest follow-

ing a traffic stop stating that this, “. . . would enable the

police to circumvent the constraints on custodial inter-

rogation established by Miranda.” Id. at 441. Yet, the

trial court’s decision in this case gives law enforcement

officials the ability to circumvent Miranda with impunity.

The trial court erred in determining that evidence ob-

tained in the pretextual traffic stop was admissible against

Esser at trial. The trial court’s decision in this regard

should be reversed and the matter remanded for a new

trial.

CONCLUSION

For all of the foregoing reasons, petitioner Daniel

Allen Esser respectfully requests that this Court grant his

petition for a writ of certiorari, reverse his conviction and

enter a judgment of acquittal. Alternatively, Esser re-

quests that this Court remand the matter for a new trial.

Respectfully submitted,