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Search & Seizure: Consent to Blood Draw – Test for Seizure of Person; Ineffective Assistance: Unobjected-to Evidence of Victim’s Character – No Prejduice

State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity

Search & Seizure – Consent – Blood Draw

Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test. Versions of the facts diverged from that point – Jacobs testified he was told at the hospital that he’d be arrested if he did not consent; State’s witnesses testified that Jacobs was simply asked if he was consenting and he said yes – with the trial court accepting the State’s version. Jacobs’ claim on appeal for suppression therefore requires a determination that the State’s witnesses were inherently incredible, something the court now rejects:

¶19      … He argues that since it is undisputed that his attorney advised him not to take the test and that he refused to take the test based on that advice before he consented, the officers’ version of the story simply does not make sense.  We disagree.

¶20      In order to be “inherently or patently incredible,” evidence must be “in conflict with nature or fully established or conceded facts.” Day, 92 Wis. 2d at 400 (citation omitted).  The trial court pointed to one plausible scenario—that Jacobs ultimately changed his mind and agreed to a blood test against his attorney’s advice because he wanted to be cooperative and help with the investigation.  Because the trial court’s answer to Jacobs’ argument is not contrary to fully established or conceded facts or in conflict with nature, we reject Jacobs’ involuntary consent claim.

Test for Seizure 

A seizure occurs if a reasonable person, given all the circumstances surrounding the incident, would have believed that he or she was not free to leave, ¶18, citing State v. Williams, 2002 WI 94, ¶4, 255 Wis. 2d 1, 646 N.W.2d 834. Neither transport of Jacobs to the hospital in a squad car nor his subsequent interaction with authorities at the hospital amounted to a seizure of his person:

¶21      Now, having dispatched Jacobs’ nonconsent claim, we next decide Jacobs’ argument that he was illegally seized when he was driven to the hospital in a squad car and therefore his consent was invalid.[5]  He appears to claim that he had no choice but to ride in the squad car rather than accept the offer by his sister to give him a ride.  As the State points out, at the time the decision to ride in the squad car was made, Jacobs had given his initial consent to the blood draw.  Based on that consent, it made sense that the police would want to transport him to the hospital in a controlled environment rather than letting him ride with his sister.  Jacobs does not claim that he asked the officers if he could ride his sister but was refused.  He only claims that he did not think he had a choice.  The fact that he was allowed to call his attorney while in the squad car demonstrates that he was free to go about his business.  Moreover, his own testimony—that he changed his mind about taking the blood test once he was at the hospital—sounds like a person who knew he had choices.  We see no seizure here.

¶22      Jacobs next contends that he was effectively placed in custody or seized while at the hospital.  More specifically, Jacobs argues that his removal from the lobby to an examination room, combined with the continual presence of officers in that room, implied that he was in custody and that he was not free to leave.  But those allegations are contradicted by testimony from the deputy present in the examination room that, on more than one occasion, Jacobs was reminded that he was not under arrest and did not have to ask permission to go about his business.[6]  Taking the officers’ version of events as true, as we must, we agree with the trial court that a reasonable person in Jacobs’ position would have believed that he or she was free to leave the hospital at any time.[7]

State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639 (police retention of ID after passing FST established seizure), and Florida v. Royer, 460 U.S. 491 (1983) (Royer seized when police moved him to private room and retained his DL), distinguished.

Ineffective Assistance – Evidence of Victim’s Character

Testimony, in a vehicular homicide trial, as to the victim’s character was irrelevant:

¶26      We begin by pointing out that the mother’s testimony was not admissible because it was not relevant.  See Wis. Stat. §§ 904.01, 904.02.  To be relevant, evidence must “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Sec. 904.01.  In order to convict Jacobs of a violation of Wis. Stat. § 940.09(1)(am) or (b), the State had to prove the following:  (1) that the defendant operated a vehicle, (2) that the defendant’s operation of a vehicle caused the death of the victim, and (3) that the defendant had a prohibited alcohol concentration (for § 940.09(1)(b)) or a detectable amount of a restricted controlled substance (for § 940.09(1)(am)) in his or her bloodstream at the time the defendant operated the vehicle.  See Wis JI—Criminal 1186-87; see also State v. Heft, 185 Wis. 2d 288, 296-97, 517 N.W.2d 494 (1994).  While much, if not all, of the mother’s testimony regarding the victim’s character may have been relevant at the sentencing stage, nothing about the victim’s personal history was relevant to Jacobs’ guilt in this case.

Although a hearsay exception is carved out by § 908.045(5m) for statements of personal or family hearsay, the hearsay rule isn’t coextensive with other, distinct admissibility requirements:

¶27     … [H]earsay exceptions do not operate in a vacuum such that if testimony falls under a hearsay exception it will be admissible no matter what.  Wisconsin Stat. §  904.02 unambiguously states that “[e]vidence which is not relevant is not admissible.”  In other words, before even entertaining the question of whether proffered evidence is hearsay or falls under a hearsay exception, courts must engage in an analysis of whether the evidence is relevant, unless, of course, relevancy is obvious and not at issue.  See Ralph Adam Fine, Fine’s Wisconsin Evidence 63-64 (2d ed. 2008) (“[Section] 904.02 makes [Wis. Stat. §] 904.01 the main gate through which all evidence seeking admission at trial must pass.”).  In this case, because testimony as to the victim’s character and personal history were not relevant to Jacobs’ guilt or innocence, the mother’s testimony on those issues was not admissible regardless of the applicability of any hearsay exceptions.

Trial counsel didn’t object to this line of evidence, so Jacobs raised the issue under the rubric of ineffective assistance. The trial court denied the motion without a Machner hearing (apparently hypothecating a tactical basis for lack of objection, ¶16). The court of appeals expresses “hesitan(cy) to endorse the trial court’s determination, without a Machner hearing, that the decision was the result of reasonable trial strategy,” ¶28; the court does not, however, remand for hearing, but instead determines that this asserted deficiency in performance wasn’t prejudicial:

¶32      The problem with Jacobs’ argument is that his affirmative defense at trial, based on Wis. Stat. § 940.09(2)(a), was not plausible. Section 940.09(2)(a) requires a defendant to “prove[] by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant [or] did not have a detectable amount of a restricted controlled substance in his or her blood.”  In other words, Jacobs needed to prove that the accident would have occurred regardless of whether he exercised due care or was intoxicated.  Jacobs argues that he could have met this defense in the jury’s eyes based on evidence that he did not show signs of impairment at the accident scene immediately after the accident occurred and that running a stop sign does not in and of itself show lack of due care.

¶33      Jacobs’ argument that he was not impaired and did exercise due care misses the mark.  He simply did not exercise due care.  He blew the stop sign.  We agree with the State that “a person exercising due care does not run through a clearly visible stop sign.”  But for running the stop sign, the accident would never have occurred.  Jacobs tries to turn the statutory affirmative defense on its head by evidence that the victim was speeding and, but for the speeding, the accident would not have happened.  But regardless of this evidence, he cannot get around the fact that his running of the stop sign was a substantial factor in causing the collision, even if the victim’s speeding was also a factor.  There is no reasonable probability that, even if trial counsel had objected and even if the mother did not testify to her son’s character, it would have made any difference.

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