State v. Percy Antione Robinson, 2020AP1728-CR, 8/6/24, District I (recommended for publication); case activity
In a published decision that criminal practitioners have been waiting on for years, COA holds that a CR-215 probable cause procedure used to satisfy the requirements of Riverside triggers the attachment of the Sixth Amendment right to counsel.
The facts in this case are relatively straightforward: Robinson was convicted of robbery of a financial institution following a jury trial. (¶6). The State’s case hinged on the eyewitness testimony of the bank teller who received the threatening note from the robber. (¶6). She initially identified Robinson as that robber in an in-person lineup conducted after Robinson’s arrest. (¶7). Robinson’s arrest, in turn, was based in part on an anonymous tip police received after distributing still images of the suspected robber derived from surveillance footage. (¶3). On appeal, Robinson raises a medley of challenges:
Attachment of Right to Counsel
The meat of Robinson’s appeal, and the reason why this case has taken so long to reach resolution, focuses on whether his lawyer was ineffective for not moving to exclude the results of the in-person lineup, as that lineup occurred after a paper probable cause procedure (referred to throughout this opinion by the circuit court form number, CR-215), but before counsel had been appointed to represent Robinson. The dispositive question is whether that CR-215 procedure was sufficient to trigger the “attachment” of Robinson’s Sixth Amendment right to counsel.
To summarize the background law: Under controlling SCOTUS precedent, the Sixth Amendment right to counsel attaches once the government commits itself to prosecute the person in question via the “initiation of adversary judicial criminal proceedings.” (¶16). Once the 6A right has attached, the person has a right to counsel at all “critical stages” that follow; binding case law establishes that an in-person lineup is such a “critical stage.” (¶24). Ergo, if the CR-215 procedure triggered attachment of the Sixth Amendment right, then the lineup results cannot be used against Robinson as it is undisputed he was not represented by counsel at that stage.
Notably, COA has relatively recent SCOTUS guidance enabling it to resolve the dispositive attachment inquiry with a minimal amount of fuss: SCOTUS’s 2008 decision in Rothgery v. Gillespie County. There, SCOTUS analyzed a similar Texas procedure applicable to arrested suspects. Like the CR-215, Texas’s procedure combines a required probable cause hearing (or a “Riverside” hearing) with the setting of bail. (¶17). Accordingly, SCOTUS held in Rothgery that this procedure was sufficient to trigger the attachment of the Sixth Amendment right, as it is a sufficient showing of the State’s commitment to prosecution. (¶16).
As summarized by COA, Wisconsin’s CR-215 procedure is very similar; it also combines a probable cause review with the setting of bail. (¶19). The only difference is that the CR-215 is an all-paper procedure and there is no physical court appearance made by the accused. (¶20). To COA, however, that difference is immaterial; what matters is that this “process shifted Robinson from a person under investigation to the “accused” in the criminal justice system.” (¶22). Accordingly, the CR-215 procedure triggers the attachment of the Sixth Amendment right. (Id.).
This holding is something of a big deal, as it works a slight modification of our existing criminal procedure. Prior to Robinson, many actors in the criminal justice system may have conflated the “initiation” of criminal proceedings under the Sixth Amendment with our statutory process for an “initial appearance.” However, this decision reaffirms what SCOTUS has repeatedly made clear–that formalistic naming conventions do not, in fact, determine when criminal proceedings have “commenced” (for the purposes of the Sixth Amendment). For counties, like Milwaukee, that utilize the all-paper probable cause review to comply with the dictates of Riverside, these proceedings are “formal enough” to trigger the initiation of a right to counsel. Accordingly, formerly commonplace practices–like conducting live lineups post-arrest but pre-“initial appearance”–will now have to be tweaked to accommodate this new rule so as to facilitate representation by counsel.
Duty to Litigate Unsettled Legal Proposition
Unfortunately for Robinson, he is raising this issue through the (opaque? dirty?) lens of ineffective assistance of counsel and in context of over a decade of contentious litigation involving this same issue. Thus, while federal courts as early as 2009 recognized that Rothgery dictated that the CR-215 procedure triggered the attachment of the Sixth Amendment right to counsel, (¶32), until now, there has been no binding Wisconsin case law addressing the issue.
Notably, in 2018, this same district of the Court of Appeals concluded, in its unpublished but citable Garcia decision, that the CR-215 did not trigger attachment (meaning three judges actually endorsed the very same arguments now rejected by this panel). Garcia’s petition for review created an opportunity to clarify the law, but a tie vote in SCOW (due to Justice Abrahamson’s absence) then deprived Wisconsinites of a binding holding. As a result, Robinson’s case was briefly certified to SCOW as a successor to Garcia, but, while the parties were awaiting a decision (and after oral argument), the Seventh Circuit granted habeas relief to Garcia and concluded, like COA does here, that the CR-215 triggers attachment. The matter was then remanded back to COA, seemingly in light of that result in the Seventh Circuit.
Given that background, COA relies on SCOW’s decision in State v. Maloney for the proposition that an attorney cannot be deficient for failing to raise an “unsettled proposition of law.” (¶32). Given the shifting legal landscape, COA therefore holds that it “cannot conclude that the matter was so settled that counsel would be deficient for failing to pursue it.” (¶35)
Defense litigators should be prepared to have this case cited frequently by the State in future IAC appeals. Here, a binding SCOTUS decision existed at the time counsel acted. Notably, COA ultimately holds that this decision controls the outcome of this case. In other words, the lineup identification was inadmissible for reasons set forth by SCOTUS in 2008, roughly a decade before Robinson’s trial. Yet, because no controlling Wisconsin authority had specifically applied that precedent to this exact procedure at the time counsel represented Robinson, the law was insufficiently “settled” and counsel was seemingly free to ignore SCOTUS’s precedent outright. While perhaps an appropriate invocation of the rule in this instance given the vexing legal history we’ve only briefly recapped, there’s something of a tension within that holding. Accordingly, we foresee more litigation in the future as to when exactly Wisconsin attorneys are under an obligation to apply SCOTUS holdings to their practice if there has not yet been an intervening state court decision clarifying the rule’s applicability to localized fact patterns.
Remaining Ineffectiveness Claims
Robinson also argues that counsel was ineffective for not presenting evidence that two other eyewitnesses actually saw and/or interacted with the robber, attended a lineup, and failed to identify Robinson as such. (¶36). Given that the defense was mistaken identification, Robinson argues that this evidence was especially relevant and persuasive. (Id.). COA is not convinced and holds that Robinson’s claim does not even merit an evidentiary hearing as he “does not allege that either [of the uncalled witnesses] were confident that they had seen the robber well enough to identify him, such that their failures to identify a suspect in the live lineup would infer that the robber was not present.” (¶39).
In other words, even though Robinson could have seemingly established that, of the three people who saw the robber, only one thought it was him, COA holds that there is neither deficient performance nor prejudice for not presenting this evidence in context of a trial where the only disputed issue was “mistaken identification.”
Next, Robinson points out that while his case relied on an anonymous tip, there were actually two other tips received which inculpated two different suspects. (¶40). He argues that the evidence should have been presented to bolster the defense of misidentification. (¶41). During postconviction proceedings, this claim was rejected by the circuit court because it believed the tip evidence did not satisfy the requirements of Denny. (¶42). While Robinson attempts, on appeal, to argue otherwise, COA calls his allegations “conclusory and speculative.” (¶42).
Notably, Robinson also argues that the evidence actually didn’t need to be analyzed as Denny evidence at all; instead, it was relevant evidence admissible to “prove the unreliability of the identification evidence at trial.” (¶43). COA, however, holds that Robinson has failed to plead prejudice, holding that because one of the three tips had to be correct, it is reasonable to infer that the one who fingered Robinson was the correct one, especially in light of the eyewitness’s identification at trial.(¶44).
Finally, Robinson argues that his lawyer was ineffective for not presenting expert testimony about the unreliability of eyewitness identifications. (¶45). Robinson’s claim fails, however, because COA holds that his motion did not sufficiently plead either deficient performance or prejudice. (¶46).
Sufficiency of the Evidence
Robinson’s final claim is that the State failed to prove the bank was a “chartered” financial institution as required by COA’s decision in Eady. Even though that element of the offense wasn’t highlighted during the State’s case, COA holds there was sufficient circumstantial proof, including testimony by the teller about the functions of the bank and the presence of an FDIC logo during the surveillance footage. (¶53).
