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Reasonable Suspicion; Instructions – Party to a Crime – Evidentiary Support; Ineffective Assistance of Counsel

State v. Jermaine Kennard Young, 2010AP2959-CR, District 1, 3/6/12

court of appeals decision (not recommended for publication); for Young: Robert N. Meyeroff; case activity

Reasonable suspicion existed to justify investigative stop of Young, based on a tip from confidential informant that someone matching Young’s description would be at a specified time and place to sell drugs.

¶13      When determining the reliability of a CI’s tip, the police may consider, among other things:  (1) past police experience with the CI, see State v. McAttee, 2001 WI App 262, ¶9, 248 Wis. 2d 865, 637 N.W.2d 774; (2) the content and specificity of the CI’s tip; and (3) the ability to verify the details of the CI’s tip, see Richardson, 156 Wis. 2d 141-42.  However, “[t]here are no longer specific prerequisites to a finding of confidential informant reliability.”  State v. Jones, 2002 WI App 196, ¶13, 257 Wis. 2d 319, 651 N.W.2d 305.  “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.”  White, 496 U.S. at 330.  The more specific and unique the details of the informant’s tip, the more likely the informant is telling the truth.  Richardson, 156 Wis. 2d at 142.  When the police are able to corroborate even innocent details, an inference arises that the informant is telling the truth about the criminal activity.  Id.

¶14      Here, the totality of the circumstances support the conclusion that the CI’s tip was reliable:  (1) the CI was known to police and had provided reliable information in the past; (2) the CI’s tip was specific and detailed; and (3) the police were able to corroborate many details of the tip before the stop.

¶24      Following the execution of a valid Terry stop, Officer Bohlen’s pinch of Young’s hand inside his pocket was a permissible protective search.  An officer may conduct a limited protective search for concealed weapons as part of an investigatory stop, if “he has reason to believe that he is dealing with an armed and dangerous individual.”  Id., 392 U.S. at 27.  Officer Bohlen’s experience had taught him that drug dealers commonly are armed with guns, and Officer Bohlen had a reasonable suspicion that Young was at the restaurant to sell cocaine. Although ordered to show his hands, Young put and kept his hand in his pocket.  Thus, Officer Bohlen was justified in protecting himself by pinching Young’s hand.

¶25      The protective pinch of Young’s hand in his pocket did not exceed the limited scope of an investigatory search.  See State v. McGill, 2000 WI 38, ¶23, 234 Wis. 2d 560, 609 N.W.2d 795 (Whether a protective search exceeds the scope of an investigatory stop—and turns an investigatory stop into something more—depends on its reasonableness given the totality of the circumstances.); see also Richardson, 156 Wis. 2d at 139.  It was reasonable for Officer Bohlen to pinch Young’s hand to keep Young from potentially harming Officer Bohlen and his fellow officers.  Officer Bohlen did not search Young further.  He limited his gesture and even so, felt the cocaine.

Young was tried for possession of a controlled substance with intent to deliver, on the theory he showed up at a restaurant with 2 ounces of cocaine for sale. Young testified that someone had given him the drug in a bag; Young thought they were CDs, and when he found out it was cocaine he intended to throw it away but first went inside the restaurant so he could call someone he knew as “Jay.” Based on this testimony, the State obtained a PTAC instruction, which the court upholds because Young’s own testimony “was illogical and created a reasonable inference that [he] intended to deliver the cocaine to Jay”:

¶34      The defense argued that the instruction was unwarranted because it was based on Young’s testimony and if the jury believed his testimony, then there was no evidence that Young intended to deliver the cocaine.  But Young overlooks the evidence supporting the opposite inference—that Young intended to deliver cocaine as a party to the crime.  It is for the jury, not the court, to determine which facts to believe. Because there was evidence and reasonable inferences supporting the State’s PTAC theory from both direct and cross-examination testimony, the trial court did not err in giving the PTAC jury instruction.  See id.see also State v. Coleman, 206 Wis. 2d 199, 214, 556 N.W.2d 701 (1996) (The source of the evidence supporting the giving of a jury instruction can be either direct testimony elicited by the State or the defense, or cross-examination.).

Counsel wasn’t ineffective for failing to request a lesser included offense instruction of simple possession, notwithstanding counsel’s acknowledgement she “probably should have” made such request:

¶41      Simple possession of cocaine requires proof of the following elements:  (1) that the defendant possessed a substance; (2) that the substance was cocaine; and (3) that the defendant knew or believed that the substance was cocaine.  See Wis JI—Criminal 6030 (2010). Trial counsel’s strategy was an all-or-nothing, inadvertent, innocent possession of the drug.  Knowing possession of cocaine is inconsistent with that strategy.  …

¶42      It was objectively reasonable for trial counsel to not seek the lesser-included instruction because she would have had to make awkward alternative arguments to the jury, which arguably undermined the defendant’s credibility and the defense strategy.  For instance, she would have had to argue that Young innocently received the cocaine and knowingly possessed cocaine, but he never intended to deliver cocaine. And arguably, giving the jury the option of conviction on a lesser charge, i.e., possession, instead of forcing the jury to choose between acquittal and delivery, was disadvantageous to Young.  Thus, it was objectively reasonable for trial counsel to not seek the lesser-included instruction.  See Kimbrough, 246 Wis. 2d 648, ¶32 (“[I]f defense counsel here had chosen for strategic purposes to avoid the lesser-included defense instruction, the decision would have been imminently reasonable under the circumstances.”).

The court adds that Young can’t show prejudice: “Based on the jury’s guilty verdict, the jurors did not believe Young’s innocent-receipt testimony credible or his denial of intent to deliver.  This court is not convinced that the jurors would have believed that Young only intended to possess cocaine,” ¶43. This analysis arguably presents two potential problems. First, the court’s view of what the “jurors would have believed” is seemingly outcome-determinative, see, e.g., State v. Smith, 207 Wis. 2d 258, ¶28, 558 N.W.2d 379 (1997) (the test “test is not an outcome-determinative” one), citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The question isn’t what the court thinks the jury would have believed, or what it did believe in the actual event, but rather, whether the result was unreliable or fundamentally unfair, id. This leads to the second analytical problem, which is that failure to submit a lesser offense option supported by a reasonable view of the evidence is necessarily prejudicial. E.g., Hawthorne v. State, 99 Wis. 2d 673, 684, 299 N.W.2d 866 (1981) (“If the court improperly fails to submit the requested lesser included offense to the jury, it is prejudicial error and a new trial must be ordered.”). That said, the question might reduce to whether counsel is obligated to confer with, and leave to the defendant, the strategic choice of requesting a lesser offense option – as to which point, compare State v. Ambuehl, 145 Wis. 2d 343, 355, 425 N.W.2d 649 (Ct. App. 1988) with State v. Eckert, 203 Wis. 2d 497, 508-09, 553 N.W.2d 539 (Ct. App. 1996) (the latter case rejecting such idea). To the extent the matter is left to counsel’s judgment, then the question might reduce to whether the possibility of the jury returning the lesser-offense verdict was relatively weaker than the all-or-nothing strategy, making the latter reasonable. The court indeed derived that conclusion, albeit in the context of discussing deficient performance.

Counsel wasn’t ineffective for failing to pursue an entrapment defense that would have been inconsistent with the chosen theory of defense (innocent possession of the controlled substance).

¶45      “Entrapment is a defense available to a defendant who has been induced by law enforcement to commit an offense which the defendant was not otherwise disposed to commit.”  State v. Pence, 150 Wis. 2d 759, 765, 442 N.W.2d 540 (Ct. App. 1989).  “The entrapment defense may only be applied when all the elements of the charged offense are established.”  State v. Jansen, 198 Wis. 2d 765, 771, 543 N.W.2d 552 (Ct. App. 1995).  After the elements for the charged crime are proven, the defendant has the burden of proof, by the greater weight of the credible evidence, to establish that he was induced to commit it.  See Wis JI—Criminal 780.  If the defendant does so, the burden then shifts to the State to prove by evidence beyond a reasonable doubt, that the defendant was not entrapped, either because the inducement was not excessive or because the defendant was predisposed to commit the crime before being induced.

¶49      Because entrapment is only available if all of the elements of the charged offense have been established, seeJansen, 198 Wis. 2d at 771, a jury instruction on entrapment would have required the defense to ask the jury to believe Young that he was entrapped, after they rejected his innocent-receipt-of-drugs testimony.  As a defense strategy, it was not unreasonable for trial counsel to want to avoid an inconsistent and awkward alternative argument that hinged on the jury both believing and disbelieving Young.

Counsel had a strategic basis for failing to seek the identity of the State’s confidential informant, therefore wasn’t ineffective. State v. Outlaw, 108 Wis. 2d 112, 121, 321 N.W.2d 145 (1982) (requirements defendant must meet before State required to identify confidential informant), discussed, ¶¶52-55.

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