March 17, 2022 at 12:01 p.m.
Motion alleging 'impermissibly suggestive identification procedure' filed in Miller homicide case
Defense wants survey to be sent to potential jurors
Motion alleging 'impermissibly suggestive identification procedure' filed in Miller homicide case
Anderson, 30, is accused of killing 26-year-old Hannah Rose Miller, who was his former girlfriend, on a Town of Pelican roadside June 30, 2021.
According to testimony offered at the preliminary hearing, Miller's body was discovered in a ditch on River Bend Road at about 11 a.m. June 30 with injuries consistent with gunshot wounds. The pathologist who conducted the autopsy later reported Miller suffered a wound to the chest, two to the back and one at the base of the skull, along with a graze wound to the arm.
The body was discovered by motorists traveling between Pelican township and the City of Rhinelander.
According to the complaint, the motorists were headed from the Town of Pelican toward the City of Rhinelander when they realized they forgot something at their residence and decided to turn around. While traveling back toward their residence, the couple saw a Black male and a white female "standing in or near the ditch line" on River Bend Road near a small white SUV. After retrieving the forgotten item, the couple headed back toward Rhinelander at which point they passed the same location where they saw the man and woman. However, "the small white SUV and black male were gone and the female was lying in the ditch line," the complaint states.
According to the motion, filed March 9, the female motorist was shown only one photo before identifying Anderson as the Black man she saw on the side of the road that morning.
In support of his motion, attorney Scott Anderson asserted the following:
1. On June 30, 2021, Oneida County Dispatch received a 911 call around 11 a.m. from (a male motorist), who reported that a female was lying on the side of the road near River Bend Road and Highway 8. Based on discovery received to date, no further description regarding identity or identities was given to the dispatch by (the motorist).
2. Among law enforcement authorities arriving at this scene was Task Force Investigator Christopher Coniglio, who overheard via radio of this finding of a female on the side of the road. His report seems to indicate he spoke to (the) 911 caller (and motorist) at some point and was told by him that this female had been with a Black male at that location. No further description of that male was given to Coniglio by (the motorist) beyond his race. The scene was then processed.
3. (Det. Sgt. Chad) Wanta was part of the scene processing. After it was completed, he asked (the motorists) to accompany him back to the scene and while there, he talked to them about their observations. Both of the (motorists) told him, per Wanta's report on this interaction, that they observed a Black man and a white woman on the side of the road when they first passed by. Upon their return trip past the scene, only the female was left, and she was lying on the ground. Both of them said the man appeared to be "overdressed" for the weather, per Wanta's report, with the couple telling him the man was wearing long dark pants and a "dark long sleeved sweatshirt and the hood was pulled over the male's head".
As with the original reporting by (the male motorist), there was no further physical description of this Black male given by either of the (motorists) to Wanta.
4. (The female motorist) then told Wanta that she had "locked eyes" with the Black male when the couple had first passed by the scene, and she said she was certain that it was the same Black male that the Oneida County Sheriff's Office had released a picture of to the public via Facebook. This photograph was Anderson. It was at that point that (sheriff's captain Terri) Hook showed her the same photo as aired on Facebook, and (the female motorist) said that was the man she saw at the scene.
Attorney Anderson then goes on to reference a 2019 Wisconsin case which "governs" the photo identification issue. According to the 2019 precedent, "not all showings of a single photograph are infected by improper police influence 'causing a very substantial likelihood of misidentification' but it is acknowledged that it is 'better practice' for law enforcement to show more than one photograph."
The motion notes that the "initial burden" is on the defense to show that the identification procedure employed was impermissibly suggestive such that there was a very substantial likelihood of misidentification. If that showing is made, the burden then shifts to the State to prove that under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive, he wrote.
"Here, neither of the (motorists) ever describes the man seen on the side of the road beyond that he was Black and what clothing he was wearing," Anderson wrote. "(The female motorist) later says she 'locked' eyes with the man and seeing on line a Facebook-posted photograph of Anderson, placed by the Oneida County Sheriff's Office with a description of the fact that he is a person of interest in that day's death of Hannah Miller, she was 'certain' that was the same man. Instead of showing a photo array to (the motorist), however, Hook shows her the same Facebook photo of Anderson placed on line earlier, and she says it is the same man she saw at the scene."
The motion ends with a request for an evidentiary hearing.
"Because this is a fact-specific issue, it is requested that an evidentiary hearing be granted to show the court the merit of this motion when examined against the nonexclusive list of reliability factors set forth... That list includes: 1) the opportunity of the witness to view the suspect at the time of the crime; 2) the witness' degree of attention; 3) the accuracy of the prior description of the suspect; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. What also would be developed at the hearing is why this one-photo method was utilized, how it was conducted and what law enforcement said to (the female motorist) at the time of the showing and prior to it."
Anderson is due in court on Friday morning for a motion hearing. It's unclear if the defense motion will be considered at that time but presumably the court will hear argument on a motion filed in late January by district attorney Mike Schiek asking the court to allow testimony related to a series of text messages purportedly sent by Miller to a friend documenting problems in her relationship with Anderson.
According to the motion, Schiek intends to argue to the jury that Anderson was abusive to Miller culminating in murder.
The filing also indicates the state wants to have a law enforcement officer read the contents of notes they say were found on Miller's phone indicating Anderson had made threats against her as well as evidence that she had retained an attorney for the purpose of filing for custody and physical placement of the child the two shared.
In the motion, Schiek argues this testimony should be admissible under what is known as the Forfeiture by Wrongdoing Doctrine, an exception to the confrontation clause included in the 6th Amendment of the U.S. Constitution.
The doctrine holds that defendants lose, or forfeit, the right to cross-examine (confront a witness) if they commit an act that makes it impossible for a witness to testify.
In this case, Schiek is arguing that Anderson made Miller unavailable to testify by killing her.
The exhibits and testimony the state wants to introduce at trial "show past instances of abuse and threats," the motion states.
"The victim's statements (in the text messages and notes saved on her phone) are a blueprint of how and why the defendant murdered the victim," Schiek wrote in the motion. "The similarities between what the victim said and what the defendant did cannot be ignored. The victim did everything she could to prove the defendant caused her to absent. This is exactly the reason courts accept the forfeiture by wrongdoing doctrine. The defendant should not, must not, be allowed to profit from his own wrongdoing, public policy requires this."
As an alternative to the forfeiture by wrongdoing doctrine, Schiek also argued the court could allow the material to be admitted as "other acts" evidence. If the court chooses that option, it would have to analyze each of the six "exhibits" the state wants to offer and determine whether testimony concerning each one is admissible.
Anderson is scheduled to stand trial Aug. 15-19, just over a year after Miller's death. He was charged July 1, 2021 but was not arrested until Sept. 7. He was taken into custody in Illinois following an extensive manhunt.
Also awaiting trial is 25-year-old Seth Wakefield of Rhinelander who is charged with first-degree intentional homicide (as party to the crime).
Wakefield is accused of taking part in discussions and other actions to help advance a plan formulated by Anderson to kill Miller. Wakefield, who was arrested over the Fourth of July weekend, told authorities he rented a U-Haul truck to conduct surveillance on Miller's apartment from June 24-25. Wakefield also allegedly told investigators that he had conducted surveillance on foot by himself at Anderson's directions on two separate occasions, according to the complaint.
"Mr. Wakefield indicated it was his understanding that they were planning to murder both (Hannah) and both of her parents and abduct the child that they shared in common," Det. Sgt. Tim Gensler testified during Wakefield's preliminary hearing.
Wakefield's trial is scheduled for Sept. 6-9.
In addition to the motion to suppress, Anderson's attorney has filed two other motions. The first seeks access to documents filed in Wakefield's case on the grounds that "such access will allow Anderson to review documents that may be exculpatory in his own case (i.e., letters and pro se filings from Wakefield) or that go to Wakefield's credibility and/or mental status (i.e., competency reports) in the event that Wakefield becomes a witness against him in this case."
The second motion requests the court issue an order "authorizing that potential jurors be sent a questionnaire seeking information regarding attitudes on race and knowledge of the case arising from pre-trial publicity of any nature."
The motion notes that the right to a fair trial is protected by the federal and state constitutions, pursuant to the Fifth, Sixth and 14th Amendments to the United States Constitution and Art. I, ss. 6, 7 and 8 of the Wisconsin Constitution.
"Prejudice arising from racial attitudes, pre-trial publicity and the nature of this case are all factors that could interfere with Anderson getting a fair trial, given the racial demographics of Oneida County and Rhinelander in particular, the amount of publicity the case has already generated, the interracial nature of the crime and the fact that it is a homicide, not a common event in Oneida County," attorney Anderson wrote in the motion. "To determine the existence of such prejudices at this juncture in the case, a questionnaire prepared with the input and approval of both parties and the court could be beneficial in determining whether Anderson can receive a fair trial with a jury selected from residents of Oneida County. It is better to know now rather than in voir dire whether a fair trial is possible, given the factors cited."
Anderson and Wakefield are both being held in the Oneida County jail. Anderson's bond is set at $1 million cash while Wakefield is being held in lieu of $250,000 cash.
Both men face life in prison if convicted.
Heather Schaefer may be reached at [email protected].
Comments:
You must login to comment.