State v. Charles Guyton

COURT OF APPEALS
DECISION NOTICE
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.
November 23, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2021AP1156-CR Cir. Ct. No. 2019CF321

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHARLES GUYTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
WILLIAM E. HANRAHAN, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Charles Guyton appeals a judgment of the Dane
County Circuit Court convicting him of second-degree sexual assault and false
No. 2021AP1156-CR

imprisonment. Before trial, Guyton moved to suppress evidence of a photographic
array that had been presented to the victim for identification purposes on the
ground that the array violated his right to due process. The circuit court denied
Guyton’s suppression motion. Guyton appeals that ruling. We conclude that the
photographic array did not violate Guyton’s right to due process and, therefore,
affirm the circuit court’s denial of Guyton’s suppression motion.

BACKGROUND

¶2 The following facts are gleaned from the transcripts of the motion
hearing and trial and are not in dispute.

¶3 Officer Butler of the Town of Madison Police Department was
dispatched to the residence of R.W. to investigate an alleged sexual assault.1 R.W.
reported the following to Officer Butler. A man approached R.W. while she was
walking up to the front door of her apartment. The man persistently asked her to
go out with him and requested to be let into her apartment building. After R.W.
denied his requests, the man unsuccessfully attempted to grab her keys from her
hand. The man then pushed R.W. against a wall and made several sexually
suggestive statements to her. The man licked R.W.’s face and neck, touched her
breasts and buttocks over her clothing, and pulled down his pants, exposing his
penis. After pulling his pants back up, the man then touched his genital area to
R.W.’s genital area over R.W.’s clothing. Eventually, the man stepped back, and
R.W. was able to escape to her apartment, locking the door behind her before the

1
We refer to the victim as “R.W.,” rather than by name, because she was the victim of a
crime. See WIS. STAT. RULE 809.86(4) (2019-20). All references to the Wisconsin Statutes are
to the 2019-20 version unless otherwise noted.

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No. 2021AP1156-CR

man could get in. Throughout these events, R.W. did not consent and repeatedly
told the man to leave her alone.

¶4 As Officer Butler later testified, R.W. described the assailant as a
Black man who was approximately 5’8” to 5’10” and had “short hair or little to no
hair” on his head and no facial hair. R.W. also described the man as being
“maybe” in his early thirties and described his body type as “maybe a little
chubby, but not fat.” In his police report, Officer Butler reported R.W.’s
description of the assailant’s body type as a “thick build.” R.W. also recalled that
the man identified himself as “Charles” and mentioned that he worked at a nearby
Burger King, which she identified.

¶5 Using the information provided by R.W., Officer Butler went to the
Burger King and asked the manager if a person named Charles worked there. The
manager stated that a man named Charles Guyton worked there and described him
as a Black male with a “thicker build” and “shorter hair” on his head. Based on
the information provided by the manager, Officer Butler obtained records related
to Guyton from a police database.

¶6 Approximately one month after the reported incident, Officer Butler
presented R.W. with a photographic array containing photographs of six

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No. 2021AP1156-CR

individuals.2 This array included one headshot of Guyton and five “filler”
photographs depicting headshots of other men who appeared to be Black.3

¶7 Officer Butler testified that he obtained four of the filler photographs
by using an automated computer system employed by law enforcement which
selects photographs, for use in arrays, of individuals with physical characteristics
similar to those of a described person. One filler photograph used by Officer
Butler was of another individual who lived in the same area as Guyton and has the
same first and last name and similar physical characteristics as those of Guyton.
Prior to presenting the array to R.W., Officer Butler showed the array to the
detective at the Town of Madison Police Department assigned to the case, and the
detective approved of the photographs for that purpose.

¶8 Before presenting the array to R.W., Officer Butler read to R.W.
standard photographic array instructions, and R.W. signed a form indicating that
the instructions had been read to her and she understood those instructions. After
placing each of the six photographs in separate envelopes, Officer Butler shuffled
the envelopes with the five filler photographs and placed the envelope with
Guyton’s photograph so that it was neither the first nor the last in the array.

2
A “photographic array” is a “series of photographs, often police mug shots, shown
sequentially to a witness for the purpose of identifying the perpetrator of a crime.” Photo Array,
BLACK’S LAW DICTIONARY (11th ed. 2019). By contrast, a “lineup” is a “procedure in which
physically similar persons, one of whom may be the suspect, stand in a row in front of the victim
… or a witness to determine whether the suspect can be identified as the perpetrator of the
crime.” Lineup, BLACK’S LAW DICTIONARY (11th ed. 2019). A “showup” is a “procedure in
which a suspect is shown singly to a witness for identification, rather than as part of a lineup.”
Showup, BLACK’S LAW DICTIONARY (11th ed. 2019).
3
In briefing in this court, the parties use the common term “filler” photographs to refer
to each of the five photographs in the photographic array that did not depict Guyton, and we do
the same.

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No. 2021AP1156-CR

Officer Butler then gave the photographic array to R.W. that included the six
envelopes with photographs as well as two envelopes with blank sheets of paper.
According to Officer Butler, he included the envelopes with blank sheets at the
end of the array with the goal that R.W. would not feel pressured to select the final
photograph as showing the assailant. R.W. selected the photograph of Guyton as
her assailant and told Officer Butler that she was “95 percent sure that’s him.”
Guyton was charged with one count of second-degree sexual assault and one count
of false imprisonment.

¶9 Before trial, Guyton moved to suppress R.W.’s out-of-court
identification, arguing that the photographic array denied him his right to due
process. The circuit court held a hearing on the first day of trial and denied
Guyton’s motion. We discuss testimony presented at that hearing and the circuit
court’s ruling in more detail later in this opinion.

¶10 The case proceeded to trial, and both Officer Butler and R.W.
testified as to R.W.’s out-of-court identification. Additionally, R.W. identified
Guyton in court as the person who assaulted her and testified that she was “a
hundred percent” certain of her in-court identification. The jury found Guyton
guilty on both counts. Guyton appeals the judgment of conviction. We mention
other material facts in the following discussion.

DISCUSSION

¶11 On appeal, Guyton argues that the photographic array on which
R.W.’s out-of-court identification of Guyton was based violated his right to due
process and should have been suppressed. We begin by setting forth governing
principles regarding constitutionally based processes for out-of-court
identifications and our standard of review.

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I. Governing Principles and Standard of Review.

¶12 We apply a two-step analysis in determining whether an out-of-court
identification violates due process and must be suppressed. State v. Roberson,
2019 WI 102, ¶34, 389 Wis. 2d 190, 935 N.W.2d 813. First, the defendant must
meet an initial burden of showing that the identification procedure employed by
law enforcement was “impermissibly suggestive such that there was a very
substantial likelihood of misidentification.” Id. “If this burden is not met, no
further inquiry is necessary.” State v. Mosley, 102 Wis. 2d 636, 652, 307 N.W.2d
200 (1981). Second, if the defendant proves that the identification procedure was
impermissibly suggestive, the State must prove that “the identification was
nonetheless reliable under the ‘totality of the circumstances.’” Id. Also, if a
subsequent in-court identification is challenged as tainted by an impermissibly
suggestive out-of-court identification, “the state must show the in-court
identification derives from an independent basis.” Id.

¶13 Under the first step of this test, suggestiveness in a photographic
array may arise from “the manner in which the photos are presented or displayed,
the words or actions of the law enforcement official overseeing the viewing, or
some aspect of the photographs themselves.” Id.4 With respect to the nature of
the photographs, a photographic array may be impermissibly suggestive if it
“includes a photo which is unique in a manner directly related to an important
identification factor,” by which the court meant a significant feature of a

4
In the circuit court proceedings, the parties stipulated that Officer Butler followed the
proper “procedure” in creating and presenting the photographic array to R.W. On appeal, Guyton
emphasizes that he is challenging only the suggestiveness caused by the nature of the
photographs, not the procedure by which Officer Butler created and presented the array to R.W.

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No. 2021AP1156-CR

description given of the perpetrator. Powell v. State, 86 Wis. 2d 51, 66-67, 271
N.W.2d 610 (1978); see also Simmons v. United States, 390 U.S. 377, 383 (1968)
(holding that there is an increased danger of “incorrect identification” if the police
show the witness “the pictures of several persons among which the photograph of
a single such individual recurs or is in some way emphasized”). However, the
presence of a “unique identifying feature” in the defendant’s photograph does not
by itself satisfy a defendant’s burden to prove that the photographic array was
impermissibly suggestive. Mosley, 102 Wis. 2d at 654. Instead, whether a
photographic array was impermissibly suggestive “requires a case-by-case
application of the rule to the particular facts of each case and must be determined
in light of the totality of the surrounding circumstances.” Powell, 86 Wis. 2d at
63.

¶14 When analyzing a motion to suppress, we employ a mixed standard
of review. Roberson, 389 Wis. 2d 190, ¶66. First, we review the circuit court’s
evidentiary findings, which we uphold unless those are clearly erroneous. Id.;
WIS. STAT. § 805.17(2) (“Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.”).5 A finding of fact is clearly erroneous
when “it is against the great weight and clear preponderance of the evidence.”
Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768
N.W.2d 615. Second, we independently apply constitutional principles to the
facts, and that presents a question of law. Roberson, 389 Wis. 2d 190, ¶66.

5
WISCONSIN STAT. § 805.17 is made applicable to criminal proceedings through WIS.
STAT. § 972.11(1).

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No. 2021AP1156-CR

¶15 The parties dispute how the mixed standard of review for
suppression motions applies to the determination of whether a photographic array
was impermissibly suggestive. The State argues that the circuit court’s entire
ruling is a question of fact subject to the clearly erroneous standard, while Guyton
argues that the circuit court’s entire ruling is a question of law that we review de
novo. In resolving this dispute, we are mindful that this court is “by the
Constitution limited to appellate jurisdiction” and that we are precluded “from
making any factual determinations where the evidence is in dispute.” Wurtz v.
Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980). Accordingly, we
review the circuit court’s determinations about the nature of the photographs in the
photographic array—such as the apparent physical characteristics of the depicted
individuals and the various particulars of the photographs—as findings of fact
subject to the clearly erroneous standard of review. See Phelps, 319 Wis. 2d 1,
¶38 n.10 (Wisconsin appellate courts apply the clearly erroneous standard to a
circuit court’s findings “even when they are based solely on documentary
evidence.”); see also State v. Walli, 2011 WI App 86, ¶14, 334 Wis. 2d 402, 799
N.W.2d 898 (“The parties disagreed as to what the video in fact showed. Where
the underlying facts are in dispute, the trial court resolves that dispute by
exercising its fact-finding function, and its findings are subject to the clearly
erroneous standard of review.”). In contrast, the circuit court’s ultimate
conclusion as to whether the photographic array was impermissibly suggestive is a
question of law that we review de novo. See State v. Benton, 2001 WI App 81,
¶¶5, 10, 243 Wis. 2d 54, 625 N.W.2d 923.

¶16 Guyton argues that the photographic array was impermissibly
suggestive. For the following reasons, we reject Guyton’s arguments.

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No. 2021AP1156-CR

II. The Suppression Hearing.

¶17 As noted, the circuit court heard Guyton’s suppression motion prior
to trial. At that hearing, Guyton called one witness, Dr. Lawrence T. White, a
professor of psychology at Beloit College. Dr. White testified that, in his opinion,
the photographic array was impermissibly suggestive of Guyton’s photograph
because the physical characteristics of the individuals in four of the five filler
photographs did not sufficiently match R.W.’s description of her assailant. Based
on the purported differences in physical characteristics of the individuals in the
photographic array, Dr. White testified that only the third photograph—i.e., the
photograph of Guyton—and the fifth photograph “fully match the description
provided by [R.W.].” From that, Dr. White concluded that “the functional size,
the practical size of the [array] is closer to two than it is to six.” According to
Dr. White, the four filler photographs differed from R.W.’s description in one or
more of the following ways: shapes of the heads and faces, framing of the faces in
the photographs, attire, ages, and body types.6

6
For context, we now briefly summarize aspects of Dr. White’s testimony that Guyton
does not ask us to rely on, and on which we do not rely. Dr. White testified that Guyton’s
photograph did not exactly match R.W.’s description of her assailant because R.W. described the
assailant as having no facial hair, while Guyton’s photograph showed “some facial hair.”
However, as Dr. White conceded at the suppression hearing and, as the circuit court found,
“facial hair comes and goes.” Further, the instructions read to R.W. by Officer Butler stated that
“appearances can change in terms of hair length and color and also facial hair.” As a result, the
parties, Dr. White, and the circuit court did not place any emphasis on hair as shown in the
photographs concerning suggestiveness.

Dr. White also testified regarding the following factors that, in his opinion, undermined
the accuracy of R.W.’s identification of Guyton in the photographic array. The thirty-day lapse
between the assault and the presentation of the array to R.W. led to a “greater … chance of a
mistaken identification.” There is a connection between “stressful, emotionally arousing
situation[s]” like the assault that R.W. experienced and “identification accuracy” because “high
levels of arousal are associated with more mistakes [in later identification].” Due to a
phenomenon known as “cross-racial identification,” people are “generally better at recognizing
(continued)

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No. 2021AP1156-CR

¶18 At the end of the hearing, the circuit court denied Guyton’s
suppression motion. The court noted that Dr. White conceded that “his particular
area of expertise” did not include determining whether photographs of persons in
an array are “significantly alike.”7 According to the court, Dr. White’s expertise
was related to the accuracy of R.W.’s memory and her description of Guyton, such
as the effects of the thirty-day gap, the psychological stressfulness of the assault,
and cross-racial identification as discussed in footnote 6, above.

¶19 The circuit court then made factual findings germane to our review.
First, with respect to the physical characteristics of the individuals in the
photographic array, the circuit court found that all appeared “somewhat similar.”
Second, the court found that the individuals in the photographs had “largely the
same head shapes” and that all six individuals were either clean shaven or had
some facial hair. Third, the court found that whether any individual had a “thick
build” was a “subjective characterization,” which we construe to mean that the

and remembering the faces of people of their own race than they are of different races.”
According to Dr. White, R.W.’s identification of Guyton was “cross-racial” and was therefore
“statistically associated with an elevated risk of making a mistaken identification.” The circuit
court ruled that these opinions from Dr. White may undermine the weight given by the jury to
R.W.’s out-of-court identification of Guyton, but do not affect its admissibility and whether the
photographic array violated Guyton’s right to due process. Guyton does not argue on appeal that
Dr. White’s testimony in those respects is pertinent to the determination of whether the
photographic array was impermissibly suggestive.
7
The circuit court stated at the beginning of the suppression hearing that it was
considering Dr. White’s “testimony as an expert for the purposes of offering opinions” and that
Dr. White was “qualified to offer opinions” as an expert. Reasonably construed in the context of
the circuit court’s rulings as a whole, these statements from the circuit court indicate that the
court deemed Dr. White to be qualified to testify as an expert on some subject matters and that
the parties would be allowed to ask questions of Dr. White in a form typically used to question an
expert. However, the court did not state or imply a ruling that all of Dr. White’s testimony
comprised expert opinions regardless of the subject or that the court agreed with any of
Dr. White’s opinions (whether as expert testimony or otherwise).

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No. 2021AP1156-CR

court did not accept Dr. White’s conclusions about the body types of the men in
the photographs on the ground that those conclusions were not supported by an
explanation from Dr. White regarding any discernible method through which he
came to the conclusion about body types. Fourth, the court stated that it was
unable to give relevant estimates of the ages of the individuals in the photographs.
Fifth, the court found that it could not discern any difference in the height of the
individuals because the photographs were headshots. Observing that the
individuals selected for a photographic array need not be identical, see Powell, 86
Wis. 2d at 67 (“The police are not required to conduct a search for identical twins
in age, height, weight or facial features.”), the court concluded that the
photographs were not impermissibly suggestive. Accordingly, the court denied
the motion to suppress R.W.’s identification of Guyton from the photographic
array.

III. Analysis.

¶20 For the reasons we now discuss, we conclude that Guyton has not
satisfied his burden of showing that the individuals shown in the array caused the
photographic array to be “impermissibly suggestive such that there was a very
substantial likelihood of misidentification.” See Roberson, 389 Wis. 2d 190, ¶34.
For context, we repeat that R.W. described her assailant as a Black man who was
approximately 5’8” to 5’10,” was “maybe” in his early thirties, had “short hair or
little to no hair” on his head and no facial hair, and had a “build” that was “maybe
a little chubby, but not fat.”

¶21 First, the circuit court determined that the six photographs in the
array were similar in material respects, and this finding is not clearly erroneous.
For instance, Guyton does not dispute that all six photographs were headshots of

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No. 2021AP1156-CR

men who appear to be Black, and that none of the six individuals had a “unique
identifying feature,” such as a tattoo, scar, or distinctive or substantial facial hair.
See Powell, 86 Wis. 2d at 67; Mosley, 102 Wis. 2d at 654. Further, Guyton does
not dispute the circuit court’s findings that each of the individuals in the
photographs had short or no head hair, little to no facial hair, and that there were
no discernible differences in heights of the individuals because the photographs
were headshots.

¶22 Second, Guyton asserts in a conclusory fashion that none of the
individuals in the filler photos resemble the “shape and contours of [Guyton’s]
head and face.” However, in denying Guyton’s suppression motion, the circuit
court found that all six individuals had “largely the same head shapes.” Guyton
does not refute this finding with any citation to the record or legal authority or
otherwise demonstrate that this finding is “against the great weight and clear
preponderance of the evidence.” See Phelps, 319 Wis. 2d 1, ¶39. In addition,
Guyton does not make a discernible argument about the shapes of the faces as
distinct from the shapes of the heads. Accordingly, this finding of fact is not
clearly erroneous, and Guyton has not satisfied his burden of proving that the
differences in head or face shapes causes the photographic array to be
impermissibly suggestive. See Roberson, 389 Wis. 2d 190, ¶34.

¶23 Third, the individuals in the first, second, fourth, and sixth
photographs were wearing blue shirts, while Guyton and the individual in the fifth
photograph were both wearing white shirts. Additionally, Dr. White testified that
Guyton’s face in his photograph “fills the frame to a larger degree than any of the
other faces in the other photographs.” The State does not dispute Guyton’s
assertion that he is only one of two individuals in the photographs not wearing a

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No. 2021AP1156-CR

blue shirt and that Guyton’s face fills the frame of his photograph to a greater
degree than the faces of the individuals in the filler photographs.

¶24 According to Guyton, these differences contribute to the
impermissible suggestiveness of the array because those make his picture more
“distinctive.” However, Guyton does not point to any evidence in the record, or
otherwise explain, how these differences increased the likelihood that R.W. would
choose Guyton over the other individuals. Whereas significant differences in
characteristics that are “directly related to an important identification factor” could
reduce the number of reasonably viable options in the array, other differences such
as the individuals’ attire and detail regarding the degree to which his face filled the
photo may be less likely to raise that concern. See Powell, 86 Wis. 2d at 67; see
also United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (holding that a
photographic array in which the defendant’s photograph was “slightly brighter and
slightly more close-up” than the five other photographs was not impermissibly
suggestive because those differences “would hardly suggest to an identifying
witness that [the defendant] was more likely to be the culprit”). For example,
while Guyton’s face filled the frame to a greater degree than in the other photos,
the differences in composition are not significant, and all six photographs clearly
revealed the facial features of the subjects. Guyton does not argue that his features
are more vivid or detailed in a material way based on his face filling the frame
more.

¶25 Fourth, we now consider together ages and body types. With respect
to the ages of the individuals in the filler photographs, Dr. White testified that the
individual in the first photograph appeared “too young” to be in his early thirties
and that the individual in the fourth photograph appeared “younger … than some
of the other men.” Dr. White also testified that the individual in the second

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No. 2021AP1156-CR

photograph appeared “too old” to be “someone in their early [thirties].” In
Dr. White’s view, the photograph of Guyton—i.e., the third photograph—as well
as the fifth and sixth photographs, matched the age in R.W.’s description of
“maybe” early thirties. Dr. White also testified that Guyton appeared in the photo
to be in his “late [thirties] to early [fifties].” Key to our analysis is that Dr. White
conceded during his suppression hearing testimony that he is “not an expert in
looking at photographs of individuals and then determining their actual
chronological age.” This concession supports the circuit court’s finding, noted
above, that Dr. White is not an expert in determining whether persons in
photographs are “significantly alike.”

¶26 With respect to the body types of the individuals in the filler
photographs, Dr. White testified that the individuals in the second and sixth
photographs “[did] not have a thick build” and that the individual in the fourth
photograph did not “clearly [have] a thick build.” According to Dr. White, the
photograph of Guyton as well as the first and fifth photographs appeared to
portray a man with a “thick build,” consistent with R.W.’s description.

¶27 As discussed earlier, the circuit court did not perceive material
differences in apparent ages and body types of the individuals in the filler
photographs. These are findings of fact to which we defer unless clearly
erroneous. See id., ¶66. On appeal, Guyton challenges those findings by relying
on Dr. White’s testimony that some of the individuals in the array appeared older
or younger than being “maybe” in their early thirties or “maybe a little chubby, but
not fat.” However, Guyton has not provided this court, and did not provide to the
circuit court, any basis to determine that Dr. White is qualified as an expert to
testify regarding the apparent ages and body types of individuals in a photographic
array. See WIS. STAT. § 907.02(1) (an expert witness must be qualified by

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No. 2021AP1156-CR

“knowledge, skill, experience, training, or education”). Significantly, Guyton
does not refute the circuit court’s determination that Dr. White’s “particular area
of expertise” did not involve determining whether individuals depicted in a
photographic array are “significantly alike,” and Dr. White conceded his lack of
expertise in determining ages of persons shown in photographs. Additionally,
Guyton does not identify—and our review of the record does not reveal—any
explanation from Dr. White regarding the method by which he determined the
apparent ages and body types of the individuals based solely on the headshots in
the photographic array. As a result, Guyton has not demonstrated that the court’s
findings of fact are “against the great weight and clear preponderance of the
evidence.” See Phelps, 319 Wis. 2d 1, ¶39.

¶28 Nonetheless, even if we were to accept Guyton’s factual argument
regarding the apparent ages and body types of the individuals in the photographic
array, Guyton has not satisfied his burden of demonstrating that the array was
impermissibly suggestive and there was a “very substantial likelihood of
misidentification.” See Roberson, 389 Wis. 2d 190, ¶34. Case law from our
supreme court demonstrates that the alleged differences in apparent ages and body
types relied on by Guyton are not impermissibly suggestive. For instance, in
Mosley, the victims of an armed robbery described the robber as having a tattoo on
his arm and were shown a photographic array of five photographs in which the
defendant was the only person with a visible tattoo. Mosley, 102 Wis. 2d at 653-
54. Even though the defendant’s photo was “unique in a manner directly related
to an important identification factor” (namely, a tattoo described by the victims
and a tattoo shown in the defendant’s photo), our supreme court stated that the
defendant’s tattoo was “not particularly striking or pronounced.” Id. at 654
(quoting Powell, 86 Wis. 2d at 67). The court explained that the defendant did not

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satisfy his burden to prove that the array was impermissibly suggestive based
solely on this tattoo feature. Id.

¶29 Here, under the reasoning in Mosley, the alleged differences in
apparent ages and body types of the individuals in the photographic array are not
impermissibly suggestive because those are “not particularly striking or
pronounced” and do not combine with other suggestive features. See id. Indeed,
these differences are even less pronounced than the difference that was not
sufficient standing alone to create impermissible suggestiveness in Mosley
because these differences do not involve the conspicuous presence or absence of a
unique identifying feature such as a tattoo. Rather, these involve arguable
assessments of apparent ages and body types. Additionally, it is well established
that the individuals selected for photographic arrays may have slightly different
physical characteristics because “[t]he police are not required to conduct a search
for identical twins in age, height, weight or facial features.” See Powell, 86 Wis.
2d at 67 (quoting Wright v. State, 46 Wis. 2d 75, 86, 175 N.W.2d 646 (1970)).
Accordingly, Guyton has not met his burden to prove that the alleged differences
in apparent ages and body types rendered the photographic array impermissibly
suggestive. See Roberson, 389 Wis. 2d 190, ¶34.

¶30 Fifth, Guyton contends that the photographic array was
impermissibly suggestive, and that Guyton’s photo “stand[s] out,” because Officer
Butler selected filler photos based on Guyton’s physical characteristics rather than
R.W.’s description of her attacker. According to Guyton, “the research holds that
in selecting photos for the fillers, the non-suspect fillers should be chosen to match
the eyewitness’s general description of the perpetrator’s significant features.” To
support Guyton’s assertion about “research” in this field, Guyton relies solely on
the “Model Policy and Procedure for Eyewitness Identification” published by the

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Wisconsin Department of Justice.8 Based on those assertions, Guyton repeats his
arguments that we have already discussed and rejected about attire, the size of
Guyton’s face in the photos, ages, and builds. For at least the following reasons,
Guyton’s assertion does not cause us to change our previous analysis of those
points.

¶31 The initial reason to reject Guyton’s argument is that the language in
the Model Policy that he asserts mandates that filler photos match the victim’s
description of the perpetrator is not the constitutional due process standard that
guides our analysis. As noted, the seminal case regarding impermissibly
suggestive photo arrays is Simmons v. United States, 390 U.S. 377 (1968). In that
opinion, the Court announced the constitutional due process standard of
impermissible suggestiveness and approved of the use of photographic arrays for
out-of-court identification despite “the hazards of initial identification by
photograph.” Id. at 384. Of importance here, the Court stated that there is an
increased risk of “incorrect identification” if the police show the witness “the
pictures of several persons among which the photograph of a single such
individual recurs or is in some way emphasized.” Id. at 383. The Court’s

8
The portion of that policy Guyton relies on reads in part:

Unintentional suggestion can lead an eyewitness to
identify a particular individual in a photo array or lineup. This
can occur if one individual stands out from the others due to the
composition of the array or lineup…. [S]uggestion can occur if
the suspect is the only person in the array or lineup who
resembles the witness’s description of the perpetrator.
Therefore, non-suspect fillers should generally be chosen to
match the witness’s description of the perpetrator.

WISCONSIN DEP’T OF JUSTICE, MODEL POLICY AND PROCEDURE FOR EYEWITNESS
IDENTIFICATION 3, https://www.doj.state.wi.us/sites/default/files/2009-news/eyewitness-public-
20091105.pdf.

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No. 2021AP1156-CR

recognition of the “hazard” of an individual’s photograph being “in some way
emphasized” reasonably leads to the conclusion that impermissible suggestiveness
can be measured in multiple ways, including by comparing the filler photos to the
witness’s description and also by comparing the filler photos to the suspect’s
photograph.

¶32 In Powell, our supreme court stated that impermissible
suggestiveness may occur if “[s]ome aspect of the photographs themselves …
serve[s] to emphasize unduly the photo of the suspect” or if the array includes a
“photo which is unique in a manner directly related to an important identification
factor.” Powell, 86 Wis. 2d at 63, 66-67. That standard from our supreme court
takes into account potentially problematic differences between the filler photos
and the witness’s description of the perpetrator as well as differences between the
characteristics of the filler photos and the suspect’s photo.

¶33 As a result, Guyton’s contention that, as matter of due process, the
filler photos must match the description of her assailant given by R.W. is not
correct and is not supported by any authorities. Rather, as we have explained, the
constitutional standard by which photo arrays are measured directs that arrays
must be analyzed to determine whether the array impermissibly steered the
witness to the suspect’s photo, using standards that include comparison of filler
photos to R.W.’s description and to Guyton’s photo.

¶34 Moreover, as Guyton concedes, the methodology he relies on is not
required under the Model Policy, but is merely recommended as a “best
practice[].” The Model Policy states in pertinent part:

When there is an inadequate description of the
perpetrator, or when there is a suspect whose appearance

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No. 2021AP1156-CR

differs from the description of the perpetrator, fillers should
resemble the suspect in significant features.

WISCONSIN DEP’T OF JUSTICE, MODEL POLICY AND PROCEDURE FOR EYEWITNESS
IDENTIFICATION 8-9, https://www.doj.state.wi.us/sites/default/files/2009-news/
eyewitness-public-20091105.pdf. Accordingly, to the extent that R.W.’s
description of her assailant (which, as noted, included two physical characteristics
qualified by R.W. with the term “maybe”) was not detailed, the Model Policy on
which Guyton relies suggests that the filler photos should generally resemble
Guyton’s physical characteristics as shown in his photo.9

¶35 In sum, Guyton has not satisfied his burden of proving that the array
was “impermissibly suggestive such that there was a very substantial likelihood of
misidentification.” See Roberson, 389 Wis. 2d 190, ¶34.10

9
Further, Guyton’s argument is undercut because Guyton’s contentions on appeal do not
consistently focus on R.W.’s description of her assailant. As examples, Guyton argues that the
individuals’ attire, the size of Guyton’s face in a photo, and the shape of the individuals’ heads
and faces in the array also contribute to impermissible suggestiveness, even though those factors
are not related to R.W.’s description.
10
Because we conclude that the photographic array was not impermissibly suggestive,
we need not address Guyton’s arguments that R.W.’s identification was not reliable and that
R.W.’s in-court identification was tainted by the out-of-court identification. See State v. Mosley,
102 Wis. 2d 636, 652, 307 N.W.2d 200 (1981) (If the defendant does not satisfy the burden of
showing that the identification procedure employed by law enforcement was impermissibly
suggestive, then “no further inquiry is necessary.”). We also do not address the State’s alternative
argument that denial of the motion to suppress the photographic array, if error, was harmless
error. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties when
one issue is dispositive.”).

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No. 2021AP1156-CR

CONCLUSION

¶36 For the foregoing reasons, the judgment of the circuit court is
affirmed.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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