On Point

State v. Nick A. Lutter, 2012AP2586, District 4, 10/31/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court’s findings of fact at the suppression hearing were not clearly erroneous, and they supported the court’s conclusion there was reasonable suspicion to stop Lutter. Among other reasons for the stop, the state trooper cited Lutter’s crossing the fog line twice and driving onto the fog line once. (¶¶2-3). While his squad car video recording only showed Lutter traveling along the edge of the fog line, the trooper testified Lutter crossed over the fog line twice before recording began. (¶6). Lutter claimed the recording started earlier, and thus showed he never crossed the fog line. (¶9). The circuit court credited the trooper’s testimony, and nothing in the record supports Lutter’s claim that the video began earlier than the trooper said it did. (¶¶7, 10). Thus, the trial court’s findings of fact are not contrary to the great weight and clear preponderance of the evidence and so will not be upset. State v. Popke, 2009 WI 37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569.

State v. Sandra Biancardi, 2013AP1351, District 2, 10/30/13 (1-judge, ineligible for publication); case activity

Biancardi was convicted of OWI.  On appeal she argued that police unlawfully stopped her based on an uncorroborated, anonymous tip contrary to Illinois v. Gates, 462 U.S. 213 (1983).  The court of appeals, citing State v. Post, 2007 WI 60, ¶24, 301 Wis. 2d 1, 733 N.W.2d 634 (“driving need not be illegal in order to give rise to reasonable suspicion”), ruled against her.  The court explained:

¶16 . . . [I]n this case, there is more than just an anonymous tipster. The caller was in the suspicious car itself and reported fearing for his life. He was able to call out mile markers to specifically indicate the vehicle’s location on the interstate. The SUV Guderski spotted was in the area the caller specified, traveling in the same direction, and was the specified color and make. Guderski then independently observed the driver go over the fog line more than once. Weighing the totality of the circumstances, Guderski had the reasonable suspicion necessary to conduct a traffic stop.

Seems there’s a long line of similar cases.  Here are a few: State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516 (prior On Point post here) and; for example, State v. Potter, 2013 WI App 30, 346 Wis. 2d 281, 827 N.W.2d 930; State v. Frank, 2011 AP2306   (prior On Point post here), and City of Sheboygan Falls v. John D. Prinsen, 2011AP700 (prior On Point post here).

State v. Roland Derliel Graham, 2013AP440-CR, District 1, 12/29/13; court of appeals decision (not recommended for publication); case activity

Reasonable suspicion for seizing defendant

¶15      We conclude that under the totality of the circumstances described by [Officer] Wiesmueller, there was reasonable suspicion to stop Graham. Graham was stopped on property that had been the subject of DEA and police surveillance for suspected drug activity. Earlier on the day of Graham’s arrest, a hand-to-hand drug transaction took place between Bentley [whose home was the subject of the surveillance] and another individual in the general location where Graham parked his car. The individual told Wiesmueller that he purchased drugs from Bentley. Upon returning to Bentley’s residence, Bentley’s car was gone, but two vehicles [one driven by Graham] pulled up within three to five minutes of each other. Almost immediately thereafter, Bentley arrived. Jones [the driver of the other car], presumably upon noticing police officers on the scene, attempted to flee. All of these factors, taken together, give rise to the suspicion that Graham either had committed, was committing, or was about to commit, a criminal act. The trial court did not erroneously exercise its discretion in denying Graham’s motion to suppress evidence.

Jury instructions

The trial court did not err in instructing the jury that the state was required to prove the elements of possession with intent to deliver as a party to a crime with regard to Graham “or another.” Graham argued that the phrase “or another” implies that he “could have been convicted if someone else committed the offense even though [he] was not acting as a party to the crime with that person.” He asked the court to use Jones’s name instead of “or another.” The court refused until, during deliberations, the jury asked about the phrase “or another” in element one (possession); at the request of the state the trial court then told the jury the phrase referred to Jones, but rebuffed Graham’s renewed request that the jury be told “or another” referred to Jones for purposes of all the elements. (¶¶7-9). Applying State v. Lohmeier, 205 Wis. 2d 183, 193-94, 556 N.W.2d 90 (1996), the court of appeals concludes the instructions as a whole, including the answer to the jury’s question, did not mislead the jury:

¶19      …. The trial court was clear that in order to find Graham guilty, the jury must find that Graham either directly committed the crime of possession with intent to deliver, or that Graham aided and abetted another in committing the crime. The trial court issued this instruction both before and after discussing the four elements of possession with intent to deliver marijuana. Contrary to Graham’s claim, the trial court did not imply that Graham could be found guilty “regardless of whether [he] was acting in concert with that person.” Moreover, the trial court explained that it did not name Walter Jones when initially instructing the jury because multiple people were mentioned during the course of the trial. It was up to the jury to determine who Graham aided and abetted. When the jury asked who the term “or another” applied to, it only asked with regard to the first element the State was required to prove—possession. In keeping with the trial court’s earlier statements—that multiple people were mentioned during the trial—the trial court did not err in refusing to instruct the jury that “or another” referred to Jones as to the other elements. The jury was not precluded from asking additional questions. If the jury was confused as to who “or another” referred to regarding the remaining elements, it was free to submit additional questions….

State v. Earnest Lee Nicholson, 2013AP722-CR, District 1, 10/29/13; court of appeals decision (1-judge; ineligible for publication); case activity

Nicholson was arrested for felony battery of his girlfriend, Marnice Franklin, but the battery charge was dismissed after Franklin failed to appear to testify at trial; Nicholson was also charged with resisting an officer, and that charge proceeded to trial and a guilty verdict. (¶¶2-4). At sentencing on the resisting charge the judge made extensive remarks concerning the alleged battery, relying on Franklin’s statements as reported by the police and the prosecutor. This was not error:

¶11      The trial court properly considered the allegations concerning the dismissed charge. The trial court’s comments regarding Franklin’s injuries and phone calls made to Franklin pertained to Nicholson’s character and the trial court’s concern for the community. The trial court properly drew from its knowledge of Nicholson’s character. See [State v.] Leitner, [2002 WI 77,] 253 Wis. 2d 449, ¶45[, 646 N.W.2d 341]. Moreover, the trial court did not impermissibly rely on hearsay evidence. The rules of evidence do not apply at sentencing and a sentencing court may consider hearsay or even suppressed evidence. State v. Marhal, 172 Wis. 2d 491, 502-03, 493 N.W.2d 758 (Ct. App. 1992).

The court also holds the evidence was sufficient for the jury to find Nicholson resisted an officer or knew that his conduct would resist the officer because “[t]he record reflects that Nicholson verbally challenged his arrest and attempted to physically fight the officers.” (¶15).

State v. Kari L. Schiewe, 2012AP2767-CR, District 4, 10/24/13; court of appeals decision (1-judge; ineligible for publication); case activity

Applying well-established principles the court of appeals holds that despite the lack of field sobriety tests or other additional investigatory steps there was probable cause to arrest Schiewe for OWI based on information from witnesses and the officer’s own observations of Schiewe at her home. (¶¶14-19). Further, the subsequent blood draw from Schiewe was not tainted by the fact that the police arrested Schiewe in her garage, into which she had retreated while the officer was questioning her. (¶6). The state conceded that, under the circumstances, this warrantless entry into the garage made the arrest illegal under Payton v. New York, 445 U.S. 573 (1980). (¶20). Applying State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775, which adopted the rule of New York v. Harris, 495 U.S. 14 (1990), the court of appeals holds the warrantless arrest didn’t require suppression of the blood draw because the arrest was supported by probable cause and, therefore, Schiewe was lawfully in police custody at the time the blood draw was done. (¶¶22-25).

The blood draw raises an interesting issue. Harris holds that if an arrest is made on probable cause but in circumstances violating the Fourth Amendment in some other sense–such as by an on-premises arrest made without an arrest warrant as required by Payton–suppression of subsequently obtained evidence is not necessarily required. Harris reasoned that the Payton requirement was “imposed to protect the home” and consequently was fully vindicated by suppression of “anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere.” 495 U.S. at 20 (emphasis added).

But Harris shouldn’t extend automatically to all evidence seized “elsewhere.” For instance, Commonwealth v. Tyree, 619 N.E.2d 660, 699-700 (Mass. 2010), held the Harris exception does not extend to seizure and examination of an arrestee’s shoes:

The particular clothing, shoes, or other physical items an arrestee is wearing or carrying depend directly on the time and place of the arrest. Permitting the postarrest seizure of those items in the wake of a warrantless entry or search would invite the police to circumvent the well-settled rule that, in the course of an illegal warrantless entry and search, any physical evidence police take “from the defendant” while still in the house must be suppressed. … The risk of manipulation is particularly apparent in cases where, as here, the police note the potential evidentiary relevance of a piece of a suspect’s clothing while they are still unlawfully in the home. … We cannot assume the defendant would have been wearing the same shoes had the police proceeded by summons or waited to arrest him lawfully at another time or place.

The defendant in Felix relied on Tyree in arguing that the station house seizure of his shirt was not within the ambit of the Harris exception; the supreme court distinguished Tyree because there the police noted the potential evidentiary significance of the shoes while still unlawfully in his home, whereas the evidentiary significance of Felix’s shirt wasn’t notice till he was being questioned at the police station. Felix, ¶49 (citing Tyree at 682). (LaFave describes this distinction as “quite unconvincing[….]” 6 Search and Seizure: A Treatise on the Fourth Amendment § 11.4(d) n.354 (5th ed. 2012).)

Schiewe attempts to distinguish Felix by arguing the defendant in that case actually consented to giving DNA, Felix, ¶12, while she did not actually consent to the blood draw; instead, her blood sample was taken under the implied consent statute, and the validity of the sample-taking requires a lawful arrest. Though the court finds this claim “difficult to understand” (¶24), it seems to be a straightforward claim that the unlawful arrest necessarily means the blood sample was improperly obtained under the implied consent statute, and that unlike Felix, Schiewe did not actually consent. As the court points out, though, Felix engages in essentially no analysis of whether the defendant consented to the buccal swab, and in fact seems to say the DNA evidence was admissible simply because he was lawfully in police custody, and that he was lawfully in police custody because there was probable cause for the arrest, despite the unlawful entry to his home to make the arrest. (¶25, citing Felix, 339 Wis. 2d 670, ¶45). Under that holding Schiewe’s argument fails because she, too, was arrested on probable cause.

Schiewe makes another argument, though it isn’t addressed by the court. This argument compares her blood draw not to Felix’s buccal swab, but to the seizure of his shirt. Unlike the evidentiary value of Felix’s shirt, which was evident only after he was at the police station, the evidentiary value of Schiewe’s blood would have been immediately apparent at the time of arrest. Indeed, the evanescence of the alcohol in her blood was the very reason to go into her garage and seize her rather than just write her a citation or issue a summons. Thus, her blood is like Tyree’s shoes rather than Felix’s shirt. An interesting argument, worth developing further–though Felix, it should be noted, didn’t ground its holding about the defendant’s shirt solely because the facts differed from Tyree; instead, it seems to adopt a very broad rule that anything seized at the jail during questioning or booking would be admissible. Id., ¶¶46-48.

State v. Carl A. Reed, 2013 WI App 132; case activity

Reed pled no contest to substantial battery in exchange for the State’s agreement to dismiss 3 other counts and to refrain from making a sentencing recommendation.  The State also received the right to withdraw from the agreement if  Reed “commits any new or additional crimes.”  Reed was later charged with new crimes.  So, the State presented a recommendation at sentencing.

Issue:  Where a plea agreement requires a defendant to refrain from committing new crimes, does the State’s filing of new charges establish that the defendant breached the agreement?

Reed argued that charges, which are based upon a probable cause finding, are neither proof of guilt nor clear and convincing evidence that he breached the plea bargain.  But the court of appeals held:

We agree with the circuit court that it would be unreasonable to conclude that the promise to commit no new crimes requires a conviction to be enforceable.  The State would not have bargained for a condition that would require the whole panoply of criminal proceedings, not to mention the delay, before the parties could determine if Reed had fulfilled his part of the plea agreement. Slip op. ¶9.

Plus, at sentencing the State may present and a circuit court may consider pending charges and alleged crimes. Id. (citing State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341).  So, whether a breach occurred or not, the circuit court could consider the new charges when it designed a sentence for Reed.

Issue:  When a defendant breaches a plea agreement, may the State choose its remedy–one that holds the defendant to his plea rather than rescinding the plea?

“Yes,” said the court of appeals.  However, the circuit court still exercises its discretion to decide whether or not a proposed remedy is appropriate.  That requires consideration of all the circumstances as well as the State’s and defendant’s interests. Id. ¶13. , See e.g. State v. Deilke, 2004 WI 104, ¶¶ 25-26, 274 Wis. 2d 595, 682 N.W.2d 945.  The court of appeals held that the circuit court did so.

¶13 . . . [T]he circuit court noted that vacating the entire agreement would expose Reed to three more charges with possible additional prison time of four and one-half years. The circuit court concluded that the best remedy under the totality of the circumstances would be to allow the State to make a recommendation at sentencing.

¶14 . . . The nonbreaching party—the State—did not seek to vacate the entire agreement.  Allowing the State to make a sentencing recommendation based on the probable cause charging of new crimes does not deprive Reed of any constitutional protections because this dispute does not arise in the prosecution for the new crimes.  Rather, Reed is being held responsible for the first battery, to which he pled no contest, and the State’s new sentencing recommendation in light of the new pending charges was appropriately considered by the sentencing court.

Interestingly Reed raised 2 issue for review: (1) whether the State breached the plea bargain by making a recommendation at sentencing, and (2) whether that breach meant he could withdraw his plea. The State (which marched into the sentencing hearing and made a recommendation over Reed’s protests) refocused the appeal on the remedy for the defendant’s alleged breach.  In the State’s view,  both parties performed 1 prong their bargain (Reed pled no contest to a serious felony; the State dismissed 3 charges).   But then Reed reneged on his promise not to commit new crimes so that permitted the State to renege on its promise not to recommend a sentence.  Sounds all “even Steven” but nobody cited any precedent for the unusual process and the partial-recission-of the-plea-agreement remedy.  When the State breaches a plea agreement, “the choice of remedy is not up to the defendant; it rests with the court.”  State v. Howard, 2001 WI App 137, ¶37.  The State’s brief concedes that there is little case law addressing the State’s remedy when the defendant breaches or the remedy here is unusual.  So maybe this case will make it to the Supremes.

State v. Richard P. Hessil, 2013AP944-CR, District 2, 10/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Hessil, charged with resisting an officer, disorderly conduct, and failure to obey a traffic officer, unsuccessfully moved to admit evidence of citizen complaints and police employment records to cast doubt on the arresting officer’s character for truthfulness, citing Wis. Stat. §  904.04(2). The evidence Hessil sought to admit included allegations of theft from an arrestee, excessive use of force during a traffic stop, inaccuracies and misstatements in reports, a profiling stop, entering a home without a warrant, and threatening family members of suspects with charges. (¶¶6-7). Hessil claimed that the officer, Brian Pergande, was the aggressor, that Pergande’s testimony about what happened during their altercation was a lie, and that the other acts were relevant and probative to what he wanted to prove to the jury. He relied on State v. Missouri, 2006 WI App 74, ¶¶5-12, 22, 291 Wis. 2d 466, 714 N.W.2d 595, which held a defendant who claimed an officer attacked him without provocation and planted contraband on him should be able to present evidence of similar unprovoked attacks by the officer because the evidence was relevant to a consequential fact: The officer might have a motive to lie about unprovoked attacks on citizens.

The court of appeals rejects Hessil’s claim. Applying the “other acts” test under State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), the court concludes that four of the five specific allegations about Pergrande don’t meet the second part of the test–relevance to the proposition that Pergande was the aggressor and had a motive to lie about his aggressiveness. They also fail the third part of the test because they would have involved confusing “minitrials” about the allegations or their probative value, if any, was outweighed by the danger of unfair prejudice. (¶¶13-16). The one specific allegation that does meet the second prong–relevance to Pergande’s proclivity for unprovoked pugnaciousness–still fails the third prong:

¶17      …. First, it is only one complaint. That hardly shows a penchant for unprovoked violence and lying to cover it up. It does not show that Pergande is the doppelganger of the officer who allegedly assaulted Missouri and numerous others. Second, we have no idea as to the outcome of the complaint.  It was a mere allegation by a person subject to a third-time operating while intoxicated charge.  We do not know if that person’s credibility was tested by cross-examination or anything else about it for that matter. …

¶18      …. Not only is it only one complaint of which we do not know the outcome, if evidence of this complaint were admitted, the trial court would need to preside over a trial within a trial. We agree with the trial court that this would distract from the question of whether Hessil is guilty of the charges alleged against him. Because the complaint is unsubstantiated, it is inherently unreliable and could only unfairly prejudice the jury.

Nor does a recent newspaper article revealing additional alleged improprieties by Pergande constitute newly discovered evidence. As with four of the five episodes Hessil sought to admit at trial, the newly discovered evidence is in no way similar to the character trait that Hessil was trying to show the jury. (¶19).

A technical note about the basis for admissibility under the Rules of Evidence: The court says it agrees with Daniel Blinka that although Missouri “framed its analysis in terms of Wis. Stat. § 906.08(2), the decision ‘is best analyzed as an instance of permissible bias (blatant self-interest) impeachment.’” (¶11, quoting 7 Daniel Blinka, Wisconsin Practice Series § 608.2, at 481 n.4 (3d ed. 2008)). It overstates the matter to say Missouri “framed” its analysis in terms of § 906.08(2), as the decision was based primarily on Sullivan and § 904.04. Missouri, 291 Wis. 2d 466, ¶¶13-19. The § 906.08(2) discussion is lagniappe. Id., ¶¶20-21.

Be that as it may, under § 906.08(2) a witness’s character for truthfulness or untruthfulness may be inquired into on cross by asking the witness about previous specific instances of untruthful conduct–such as fraud, misrepresentation, or lying–that are not remote in time. The conduct can’t be proven with extrinsic evidence, so the cross-examiner is bound by the witness’s answer. Blinka, at 481-82 & n.4; see also, e.g., McClelland v. State, 84 Wis. 2d 145, 155-56, 267 N.W.2d 843 (1978). In Missouri the evidence the defendant sought to present was relevant to establishing the officer’s alleged pattern of similar misconduct and specific motivation to lie about it, not to establish that the officer had engaged in specific instances of conduct probative of untruthfulness. While some of the evidence Hessil was seeking to elicit might have been admissible under § 906.08(2)–for instance, the allegations of theft from arrestees–there’s no indication from the opinion or the parties’ briefs that he tried to get that evidence in by cross-examining Pergande about the allegations.