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State v. Juan G. Gracia, 2011AP813-CR, District 2, 12/28/11, rev. granted 5/14/12

court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12

Warrantless Entry – Community Caretaker 

Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine; State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, distinguished.

¶15      At first glance, this would seem to be an Ultsch case because the investigating officer’s initial reason for trying to find the driver was the same—an accident between a motor vehicle and an immovable object, which accident may have caused significant damage to the vehicle.  But that’s where the similarity ends.  In Ultsch, the officers encountered a man leaving the residence.  They did not ask nor did they say that they were concerned with the well-being of the driver.  They simply wanted to know where she was and, after the man indicated that the driver was his girlfriend and was probably asleep, he left.  Then, the police just barged in.

¶16      Here, however, the investigating officer explained why they were there and also that they were concerned that the driver might be injured.  They wanted to find out if that was so.  Unlike the police in Ultsch, an officer in this case testified that he asked Gracia’s brother right away to check on his condition, and waited outside until the brother told the police to come in.  So, it is obvious that Gracia’s brother was concerned enough about Gracia’s well-being to invite the police in.  He was so concerned that, despite Gracia’s appeal that everyone “go away”, the brother instead forced the bedroom door open, without any solicitation by police.  This shows us that the police were at the bedroom door for a bonafide reason, to see if Gracia was injured, a concern shared by the brother.  The police, therefore, had a right to be in the place they were in.  They had indicated their concern that the driver of the vehicle might be injured, asked a family member to check on the driver, were granted entry to the trailer home by consent of a family member and were led by the family member to the driver’s bedroom door.  They did not force the door open.  The brother did.  The focus therefore was always on checking to see if there was injury; it was done in a sincere, unpretentious manner, much unlike the officers in Ultsch.

On the other hand, the case is similar to State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, because of demonstrable concern for the resident’s safety:

¶18      In terms of the third factor requirement to balance the public interest against the level of intrusion by looking at the exigency faced by the police and the availability of alternatives to the intrusion,[8] see id., this case is much more like Pinkard than Ultsch.  In Pinkard, officers entered a residence through an open door “out of concern for the safety of Pinkard and his companion” due to an anonymous tip regarding a possible cocaine overdose.  Id., ¶¶46-47.  As the court pointed out, “[i]f Pinkard and his companion had been suffering from a cocaine overdose, a reasonable inference based on these facts, the officers were presented with a significant exigency….”  Id., ¶47.  Here, as in Pinkard, the officers entered Gracia’s bedroom through an open door out of concern for Gracia’s safety, a concern voiced to Gracia’s brother from the beginning and a concern obviously shared by his brother.  A reasonable police officer, invited into a home by a family member in order to check on another family member’s physical condition resulting from a bad accident, should not have to turn down the invitation, should not have to turn away if the family member opens the door for the officer, and should not have to cover his or her eyes and remain motionless when the door is opened.  The balance in this case weighs in favor of the intrusion.  The police were validly exercising their community caretaker function when they crossed the threshold of Gracia’s bedroom.

OWI Enhancer – Collateral Attack 

Gracia’s waiver of counsel in a prior (1998) OWI conviction used to enhance the present OWI held valid. The record shows that he new he could have an attorney but decided he didn’t need one, “since he had in fact been drinking and driving and since the State was recommending the minimum penalties, an attorney could not do anything for him,” ¶26. Thus, “he made a deliberate choice and understood the seriousness of the charge as well as the range of penalties,” id. Failure of the trial court to fully comply with Wis JI—Criminal SM-30 doesn’t impair the waiver:

¶27      Yet, Garcia complains that he was not aware of the difficulties and disadvantages of proceeding pro se because he did not specifically understand in 1998 that an attorney might be able to explore defenses based on police conduct and other issues unrelated to his guilt or innocence.[9]  This is one part of the Wis JI—Criminal SM-30 that the 1998 court did not convey to him.  Nevertheless, the law does not require that Garcia had to understand every possible type of defense; the law only requires a general understanding of the difficulties and disadvantages of proceeding pro se.  See Klessig, 211 Wis. 2d at 205.  At the 2010 hearing, Gracia acknowledged that he understood that a lawyer could “go to court” for him, and that he had seen lawyers on television and was familiar with the O.J. Simpson trial.[10]  We can infer from that testimony that Gracia had an understanding that a lawyer would stand up for him in court and might know more about his case and possible defenses than he did.  In other words, Gracia’s testimony makes it clear that he understood the role of a lawyer, in general terms.  He simply made a cost-benefit analysis that pleading guilty and taking the minimum penalties recommended by the State was a better choice for his pocket book than paying a lawyer.  This is exactly what the 2010 court reasoned and we agree.  His waiver was valid.

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