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Defendant is denied a new trial, but wins resentencing

State v. Bobby L. McNeil, 2019AP467-CR & 2019468-CR, District 1, 7/21/10 (not recommended for publication); case activity (including briefs)

McNeil was convicted of drug offenses, obstructing, and bail jumping after a trial in two consolidated cases. His challenges to the joinder of the cases and to various evidentiary issues are rejected, but he prevails on the challenge to his sentence because the circuit court relied on inaccurate information at sentencing.

In the first case McNeil was seen entering and exiting a car that had been reported stolen; he fled, was apprehended, and was charged with obstructing and drug possession. (¶5). In the second, McNeil fled police who saw him leaving a vacant property; he was caught by pursuing officers after he was pushed to the ground by an unidentified citizen. Drugs were found next to him on the ground. He was charged again with obstructing, drug possession, and bail jumping. (¶7).

Joinder: The two cases were joined for trial over McNeil’s objection. (¶8). He argues this improper under § 971.12(3), as it caused undue prejudice due to each case operating as “bad behavior” propensity evidence for the other. The circuit court properly exercised its discretion in holding that the evidence in the two cases would be properly admitted as other-acts evidence in the other, and by instructing the jury as to the purposes of the evidence, including that it could not be used as propensity evidence. (¶¶29-36).

Evidentiary challenges: McNeil raises two § 904.04(2) claims. First, the trial court admitted testimony of the owner of the reportedly stolen car that McNeil was her drug dealer, that she loaned McNeil the car in exchange for drugs, and that her father reported the car stolen when McNeil didn’t return it. (¶9). The circuit court properly exercised its discretion in holding the evidence was: (1) relevant because it established the reason the police sought to stop McNeil in the first case and showed McNeil’s knowledge that the drugs he possessed were controlled substances; and (2) not unfairly prejudicial. Plus, the court gave a cautionary instruction. (¶¶37-41).

Second, McNeil argues his lawyer was ineffective for not objecting to testimony in the second case that McNeil threatened the citizen who aided in police in apprehending him. Trial counsel wasn’t deficient for failing to object because the evidence was admissible as consciousness of guilt, and in any event the evidence wasn’t prejudicial because the jury acquitted McNeil of most of the charges in the first case (if that makes sense). (¶¶43-48).

Sentencing: The circuit court based its  sentencing decision in part on a crime lab analyst’s statement at trial that there was an indication that fentanyl was mixed with the drugs McNeil possessed. (¶¶11, 13-14). In fact, as the state conceded during postconviction proceedings, the analyst said the presence of fentanyl was too small for the lab to conclusively say it was present, so the court relied on inaccurate information. (¶¶16-17). Even so, the state insists the error was harmless because the court relied on it only with respect to one of the drug counts in the second case, which is concurrent to the longer bail jumping sentence. (¶¶17, 24). The court of appeals rejects this claim in an instructive analysis:

¶25     …. At the time it imposed the sentence for the felony bail jumping conviction, the trial court declined to make McNeil eligible for any early release programs. In explaining its reasoning, the court stated that it had “given a lot of consideration to the minimum amount of incarceration necessary to establish the sentencing goals, and for all of the aggravated factors that I’ve listed throughout the sentencing analysis, early release would be contrary to the sentencing goals.” (Emphasis added.)

¶26     In its sentencing analysis, the trial court clearly listed the presence of fentanyl as an aggravating factor, discussing in depth the dangers of it due to its potency. …. The court observed the connection between all of the charges against McNeil, finding that they were all “aggravated for all of the reasons that I’ve already stated” and that they “were the basis of the bail jumping, the violation of your conditions of bail.” The court also characterized the bail jumping charge as “aggravated.”

¶27    The trial court considered other proper factors in fashioning the sentences it imposed, such as McNeil’s “significant prior record” and the need to protect the community due to McNeil’s “longstanding pattern of failing to follow the rules while he is out in the community.” However, based on the court’s consideration of the presence of fentanyl in the drugs possessed by McNeil, its discussion of the same as an aggravating factor, and its statement regarding the connection between all of McNeil’s convictions—including the felony bail jumping count—we are not persuaded that the inaccurate information relating to the presence of fentanyl did not affect the sentence for the bail jumping conviction, which was the longest, and thus controlling, sentence.

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