State v. Jonathan M. Mark, 2022AP001739-CR, 5/10/23, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
While at a Kwik Trip investigating an unrelated incident, an officer spotted Mark whom he believed to be the subject of an outstanding warrant. When the officer conducted a Terry stop, Mark resisted and wound up pleading guilty to obstructing an officer. On appeal, he argued–unsuccessfully–that the officer lacked reasonable suspicion to stop him, and he received ineffective assistance of counsel.
Mark first argued that the officer’s testimony at the suppression did not establish reasonable suspicion.
¶14 . . . Specifically, Mark says the officer did not testify about any physical descriptors; he had Mark’s name wrong initially; it was dark, and Mark had his hood up and did not look directly at the officer; the officer did not have any prior personal contact with Mark; and under all these circumstances, it is improbable that the officer could accurately identify Mark as the individual with the outstanding warrant.
The court of appeals noted that the circuit court weighed these assertions against the officer’s testimony and found the officer credible. It would not reverse the circuit court’s credibility determinations and factual findings. (Opinion, ¶15).
¶16 The officer’s credible testimony supports the reasonable suspicion finding. The officer had seen Mark’s picture in multiple briefings and was told to be on the lookout for Mark because he had an outstanding warrant for a violent crime. The officer then saw Mark walk into the Kwik Trip, and although he only saw him from the side view with his hood up, this view was “[g]ood enough” for the officer to think it was Mark. The officer’s identification of Mark was confirmed when he saw Mark exit the Kwik Trip, allowing a “full frontal view” of Mark.
¶18 What Officer Belisle did here was unquestionably reasonable. He saw someone whom he believed to be someone with an outstanding arrest warrant and known to be violent. He did not act immediately but waited to confirm that Mark was in fact that individual. This was not an unreasonable intrusion. In fact, it is the textbook example of good police work. The law does not compel an officer in these circumstances to simply “shrug his shoulders” and let a criminal walk away. See [Adams v. Williams, 407 U.S. 143, 145 (1972).] Had Belisle been wrong about recognizing this individual as Mark, the interaction would have ended when the person clarified that he in fact was not Mark. Of course, that was not what happened, and Belisle’s reasonable actions resulted in arresting a person with an outstanding warrant who was known to be violent
Mark also claimed that he received ineffective assistance of counsel when his trial lawyer failed to present the squad video of the interaction and failed to call Mark to testify that he was wearing glasses on the night of his arrest. The court of appeals rejected these claims because Mark did not satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). The video would have bolstered the officer’s credibility because it showed Mark walking within close proximity of the officer. And testimony that Mark was wearing glasses would not have changed the conclusion that the officer acted reasonably. (Opinion, ¶¶21-22).