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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
August 25, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                       petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                               Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                        and RULE 809.62.
                                                                                                                                                        Cir. Ct. No.   2006CF6794
Appeal No.                                                                            2008AP1238-CR
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
                                                                                                                                                        DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT L. GEE,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  TIMOTHY G. DUGAN, Judge.   Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1                                                                                    PER  CURIAM.    Robert  L.  Gee  appeals  from  a  judgment  of
conviction for armed robbery to challenge the denial of his suppression motion.
The issue is whether the lineup at which he was identified was impermissibly
suggestive  because  he  was  practically  bald,  and  most  of  the  other  lineup




No.   2008AP1238-CR
participants were only balding.   We conclude that a six-man lineup consisting of
men with similar physical characteristics, including very short-cropped hair in
various degrees of balding to match the complainant’s description of the suspect as
having “short hair,” was not impermissibly suggestive.   Therefore, we affirm.
¶2                                                                                                  Gee,  wearing  a  hooded  gray  sweatshirt,  approached  bank  teller
Nicholas Turner.   After a brief conversation, Gee handed Turner a note that said,
“give me the money or I’m going to blow  your f…cking head off.”    Turner
described the robber as “a black male, 35 years of age, 6 foot, 220 pounds, dark
complected, short hair, unknown if facial hair, wearing a gray sweater.”1
¶3                                                                                                  Gee was arrested three days after the robbery and a lineup was
conducted the following day.    Milwaukee  City Police Detective  Ralph Spano
selected five other individuals with similar characteristics to the subject (“fillers”)
to comprise a line-up.   Spano testified at the suppression hearing that he “viewed
photographs and reviewed descriptions - weights, heights, ages of individuals that
were in the classification section [at the County Jail]” and also considered race and
hair in selecting the fillers.   Spano testified that each lineup participant entered the
room and turned as directed to allow Turner to view (through a one-way mirror
from an adjacent room) each participant individually, from the front, back and
both sides.   Turner identified Gee as the bank robber, mentioning that the robber
was bald.
1  Although Turner testified that Gee was wearing  “[a] hooded gray sweatshirt,” his
description to the police that was used to construct the lineup, described Gee as “wearing a gray
sweater.”
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No.   2008AP1238-CR
¶4                                                                                      Gee   moved  to  suppress  the   identification  as  impermissibly
suggestive.    After  hearing  testimony  and  viewing  photographs  of  the  lineup
participants, the trial court found that  “the similarity of the photographs,  [a]re
adequately similar based upon height, weight, hair, race certainly [and clothing],”
and denied the motion.
¶5                                                                                      A jury found Gee guilty of armed robbery with the threat of force as
a party to the crime, in violation of WIS. STAT. §§ 943.32(2) (2005-06) and 939.05
(2005-06).   The trial court imposed a twenty-five-year sentence to run consecutive
to any other sentence, comprised of fifteen- and ten-year respective periods of
initial confinement and extended supervision.   Gee appeals to challenge the denial
of his motion to suppress his identification.
¶6                                                                                      To demonstrate that an out-of-court pretrial identification violated
due  process,  the  defendant  first  must  prove  that  the  identification  was
impermissibly  suggestive.    See  State  v.  Mosley,  102  Wis.  2d  636,  652,  307
N.W.2d  200  (1981); Powell v. State,  86 Wis.  2d  51,  65-66,  271 N.W.2d  610
(1978).   Impermissible suggestiveness may result when the line-up participants do
or do not display a unique characteristic particular to or different from that of the
accused.     See  Mosley,                                                               102  Wis.                                                              2d  at   654.   To  summarize  the  police
responsibilities in constructing a lineup:
The police authorities are required to make every
effort reasonable under the circumstances to conduct a fair
and  balanced  presentation  of  alternative  possibilities  for
identification.    The police are not required to conduct a
search for identical twins in age, height, weight or facial
features….   What is required is the attempt to conduct a fair
lineup, taking all steps reasonable under the  “totality of
circumstances” to secure such a result.
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No.   2008AP1238-CR
Powell,                                                                                    86  Wis.  2d  at  67  (citation  omitted).    We  review  an  order  denying
suppression pursuant to a mixed standard of review:   we uphold the trial court’s
factual findings unless they are clearly erroneous, and we independently determine
whether the identification was impermissibly suggestive, and therefore violative of
due process of law.     See State v. Dubose, 2005 WI 126, ¶16, 285 Wis. 2d 143,
699 N.W.2d 582.
¶7                                                                                         Gee challenges the denial of his suppression motion, contending that
his  baldness  was  a  unique  characteristic,  and  the  fact  that  the  other  lineup
participants  were  not                                                                    “completely  bald”  rendered  the  lineup  impermissibly
suggestive.   First, Turner described Gee as having “short hair, unknown if facial
hair”; he did not describe him as bald until after he had identified him in the
lineup.   Second, all of the lineup participants had  “short hair,” and most were
balding.
¶8                                                                                         The trial court described each lineup participant individually.                It
described the first participant as having
some very short hair, but clearly is bald in large portions of
his  head,  particularly  those  that  would  show  from
underneath the hood.   And the photographs … reflect the
person at the time of the robbery.   Clearly, there’s a hood.
You can kind of see into the hood on the sides and a little
bit at the top, but would reflect that the person has either
very short hair or could be balding.
Two,  again,  has  very  short  hair,  is  bald,  high
forehead; also, the corners at the front of the head also
balding going back.
The  defendant  is  substantially  bald.     From  the
picture,  it  looks  like  he  could  have  some  short  hair
underneath there as well.
Four has the longest hair in the pictures, kind of a
frizzy and it looks like something coming down the back.
However, there was a hood on, that had he had that hair,
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No.   2008AP1238-CR
again, he has a very high forehead.   He has the balding in
the front corners.
Five, again, very high forehead that’s balding and
those corners going back were balding.
Six, again, is substantially almost all bald with a
little bit of very short hair on the top of his head that, again,
wouldn’t  necessarily  show  through  the  hood  under  the
circumstances.     So  the  Court  does  not  find  that  the
photographs were in any way dissimilar to make the lineup
unduly suggestive.
The trial court accurately described the photographs of the lineup participants.
¶9                                                                                               We reject Gee’s challenge.   First, the lineup participants had very
“short hair,”  which  was consistent  with Turner’s description  to  police.2    Gee
would be more accurately described as having a shaved head that reveals some
close-cropped hair, as opposed to being completely or naturally bald.   Second,
each was balding with close-cropped hair, rendered less distinctive by the robber
having been seen wearing a sweatshirt hood at the time of the crime.   This six-man
lineup  constituted  a  fair  and  balanced  panel  of  men  with  similar  physical
characteristics presenting alternative possibilities for identification as the robber.
There was nothing distinctive or suggestive of the six men’s varying degrees of
baldness to target or exclude them as the robber described to have “short hair” that
was wearing a sweatshirt hood.   We independently conclude that the lineup was
not impermissibly suggestive.
By the Court.—Judgment affirmed.
2  Turner mentioned that Gee was bald after he had identified him.  Police constructed the
lineup from Turner’s description of “short hair,” confirmed by Gee’s appearance to police upon
arrest; Gee appeared balding with very short or close-cropped hair.
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No.   2008AP1238-CR
                              This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)             (b)5.   (2007-08).
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