On Point

State v. Dyllon A. Maddix, 2013 WI App 64; case activity

The warrantless search of an apartment by police who responded to a domestic disturbance call was not justified under the community caretaker doctrine:

¶37      …. Under the facts of this case, after the officers validly exercised the community caretaker function by entering the apartment, addressing the apparent domestic situation, and making a reasonable assessment of the need for any further assistance or protection, there was simply no objectively reasonable basis to conclude that searching the apartment was justified under the community caretaker function.  To conclude otherwise, in our view, could allow this exception to justify virtually any residential “sweep” as part of a police response to an alleged domestic disturbance.

Police heard screams when they arrived at Maddix’s apartment due to a domestic disturbance call. On entering the apartment they encountered Maddix and  a woman,  and they appeared to be the only people there.  After interviewing Maddix and the woman separately, the officers were “not satisfied” with the woman’s explanation as to why she screamed because she said she was scared but didn’t know what she was scared of; thus, the police believed a third person, who either caused the screaming or was a victim, was in the apartment. (¶¶4-8). The officers’ belief was not objectively reasonable, compared to State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, and State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87:

¶27      Unlike in Pinkard, Ultsch, and Gracia, where the officers had evidence pointing concretely to the possibility that a member of the public was in need of assistance (a damaged vehicle or drug use coupled with an open doorway), here no evidence directly corroborated the officers’ theory that another person was present in the apartment, who was either a crime victim or a perpetrator.  Nor, unlike in Pinkard and Gracia, where another person indicated concern for the well-being of one or more persons (an anonymous tip and a brother’s direction), was there any corroboration that someone was in need of assistance here.  ….  While it was certainly a physical possibility that one or more persons were in the apartment, there were no objectively reasonable grounds to suspect that the disturbance involved persons other than Maddix and his girlfriend, who each independently told the officers that they had been arguing about their own relationship.

¶28      Moreover, based on the testimony, the officers were present in the apartment for twenty-five to thirty minutes prior to initiating the search of the rooms in the apartment.  During that time, the record lacks any evidence supporting the theory that anyone else was present, such as noises, nervous behavior by Maddix or the female, or statements by either of them that implied the presence of another person.  We need not speculate on what additional evidence might have been enough, because here there was virtually no such evidence.  ….

The circuit court found the officers to be credible and sincere in their belief another person was in the apartment, but the court of appeals stresses that the standard is an objective one; thus, “[i]t is not enough that the officers subjectively thought that perhaps someone else was in the apartment; what matters is whether they possessed any facts that would lead to a reasonable conclusion that someone else was present to justify a search to render assistance or protection.” (¶30).

For more on Gracia, see here; on Ultsch, here; and on Pinkard, here.

The court also holds that even if the search was a bona fide exercise of the officers’ community caretaker function, the public interest in the search was outweighed by the privacy intrusion, given the lack of exigency and the existence of reasonable alternatives to the search the police conducted. (¶¶31-36).

Review of unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the circuit court’s answer to a question posed by the jury during deliberations allow the jury to base its verdict on speculation and conjecture?

Because petitions for review are not available on the court’s website, the issue statement was composed based on the court of appeals’ decision and the parties briefs. Also, note that the petition for review was filed by the state because, as recounted in our post on the court of appeals decision, Badzinski was granted a new trial. All that said, it’s pretty clear what the basic issue is, and it is an interesting, though unusual, one. Here’s some background:

Badzinski was charged with sexually assaulting his niece, A.R.B., during a family gathering at the home of his parents. A.R.B. testified the assault occurred in a specific room–the basement laundry room–and there was no evidence it occurred in any other room. But there was also testimony from multiple defense witnesses that it was not possible for the assault to have happened in the laundry room. (Court of appeals decision ¶¶3-5). So if jurors believed A.R.B, the assault happened in the laundry room, nowhere else; if they believed the defense witnesses, the assault couldn’t have happened in the laundry room.

During deliberations, the jury asked two questions. First, they asked if they had to agree on the “place” the assault occurred; the court told them they had to agree it occurred at Badzinski’s parents’ house. They then asked whether they had to agree on which room the assault occurred in; to this question the trial judge answered “no.” (Id. ¶6). A majority of the court of appeals’ panel held this answer was error because it allowed the jurors to ignore the evidence that the assault happened in the laundry room “and let the jurors pick any room or rooms in the house.” (Id. ¶35). This allowed the jury to convict based on speculation, and “we may not permit a guilty verdict to rest on matters beyond the evidence.” (Id. ¶36).

The state defended the trial judge’s answer to the second question by pointing out that the room the assault occurred in is not an essential element of the offense, so juror agreement on that fact is not required. (Id. ¶¶25, 29, 31). But the rationale underlying the court of appeals’ rather brief analysis isn’t the rule about juror agreement on the essential elements of the offense; rather, it’s the rule that a jury verdict can’t be based on speculation. (Id. ¶36). Even if the room isn’t an element of the offense the jurors must agree on, a juror can’t conclude the assault occurred in some other room unless there is some evidence for that conclusion, and there isn’t any such evidence here. To address the court of appeals’ rationale the supreme court will have to decide the legal effect of juror speculation about facts that are not necessary to support an essential element of the offense.

There is another issue. Based on the jury’s questions, the majority accepted that at least one juror believed the assault couldn’t have happened in the laundry room. (Id. ¶34). That conclusion seems sound, given the jury asked first about having to agree on the “place” and then about the “room.”  But the state argued it was speculation whether the jury’s questions showed they did not agree on where the assault occurred. (Id. ¶¶25, 28). Perhaps the jury asked those questions not because one or more jurors accepted the defense witnesses’ testimony, but only out of idle curiosity. If so, no juror was left to speculate about where the assault took place. Absurd as it seems that the jury would ask those questions unless some juror was questioning A.R.B.’s testimony about the location of the assault, the supreme court’s handling of the state’s argument on this point could conceivably avoid addressing the rationale of the court of appeals’ decision as well as establish limits on interpreting the meaning of jury questions.

Missouri v. McNeely, USSC No. 11-1425, 4/17/13

United States Supreme Court decision, affirming State v. McNeely, 358 S.W.3d 65 (Mo. 2012)

In a decision that works a major change in Wisconsin law governing nonconsensual, warrantless blood draws in OWI cases, the U.S. Supreme Court holds the evanescent quality of alcohol in a suspect’s bloodstream does not in and of itself create an exigent circumstance:

The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. (Slip op. at 1).

This case arose out of  a “routine” OWI arrest in Missouri. The Missouri Supreme Court held that the warrantless blood draw in the case was unreasonable because other than the natural dissipation of blood-alcohol, there were no factors showing an exigency. It relied on Schmerber v. California, 384 U.S. 757 (1966), which it read as requiring more than mere dissipation of blood-alcohol evidence to establish exigent circumstances. (Slip op. at 3-4, 21-22). The state petitioned the Supreme Court for review, arguing for a per se rule for blood testing in drunk-driving cases–namely, that whenever an officer has probable cause to believe a person has been driving under the influence of alcohol, exigent circumstances justifying a warrantless blood draw necessarily exist because BAC evidence is inherently evanescent. (Slip op. at 8, 20-22).

A majority of the Supreme Court disagrees, concluding that the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, but does not do so categorically.  (Slip op. at 13). Starting from the well-established principles that taking blood is a search and that a warrantless search is unreasonable unless if falls within a recognized exception to the warrant requirement, the Court notes that the exigent circumstances exception has always depended on the totality of the circumstances. (Slip op. at 4-6). Like the Missouri Supreme Court, it conclude Schmerber did not establish a categorical rule allowing warrantless blood tests based solely on the dissipation of alcohol from the bloodstream. (Slip op. at 7-8). Instead, the decision in Schmerber, which involved a warrantless blood test of a defendant arrested for an OWI after having been in a car accident, “fits comfortably within our case law applying the exigent circumstances exception” because it was based on the totality of the circumstances–specifically, the fact that “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, [so] there was no time to seek out a magistrate and secure a warrant.” (Slip op. at 7-8, 9, quoting Schmerber, 384 U.S. at 770-71).

In addition to establishing that Schmerber did not create a per se rule, the Court rejects the state’s other arguments for such a rule. First, the Court rebuffs the claim that a case-by-case approach will not provide adequate guidance to police deciding whether to conduct a warrantless blood draw; case-by-case determinations are not unusual in Fourth Amendment cases, and “the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” (Slip op. at 15). The Court also flatly rejects the claim that blood testing in OWI cases implicates only minimal privacy interests because blood draws are commonplace and because motorists have diminished expectations of privacy: “We have never retreated … from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.” (Slip op. at 16-17). Finally, the Court accepts the government has an interest in combating drunk driving, but concludes those interests can be–and have been–advanced by policies other than a per se exception from the warrant requirement for blood draws in OWI cases. (Slip op. at 16-20).

In short, then:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. ... We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards [ v. Wisconsin], 520 U. S. [385], 393 [(1997)]. (Slip. op at 9-10).

The Court’s rejection of a per se rule changes Wisconsin law because State v. Bohling, 173 Wis. 2d 529, 539, 494 N.W.2d 399 (1993), adopted the per se rule the Court now repudiates. In Bohling the supreme court concluded (over a three-judge dissent) that Schmerber could be read in one of two ways: 1) as holding that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving offense; or 2) as holding that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw. Bohling held that the first reading was the “more reasonable interpretation,” but the Supreme Court now makes it clear the second reading is the correct one. Consequently, both the per se rule adopted by Bohling and the reasons it gave for adopting the rule are invalid.

And not only Bohling, but also the rulings that were premised on its per se rule. Most prominently, perhaps, is State v. Faust, 2004 WI 99, 274 Wis. 2d 183, 682 N.W.2d 371, which relied heavily on Bohling in holding that a suspect who gave a breath test could still be subjected to a warrantless blood draw because the dissipation of alcohol by itself creates an exigency. (See our post for further summary.) Given the focus on the totality of the circumstances, the preservation of BAC evidence using a breath test should mean (as the Faust dissenters argued) there is no longer an exigency. Likewise State v. Malinowski, 2010AP1084-CR (Wis. Ct. App. Nov. 30, 2010) (unpublished but citable for persuasive value), which held that the logic of Bohling covers controlled substances as well as alcohol. That extension of Bohling is now as untenable as  Bohling itself.

With the rejection of the per se rule a police officer’s default procedure should be to get a warrant if he or she wants to take blood from a OWI suspect. The Court notes that should be easier to do these days, given the advances in communication technology that allow more expeditious processing of warrant applications. (Slip op. at 10-12). (On that point, note that the officer in this case testified he had been able to get blood-draw warrants quickly in other cases but hadn’t tried in this case only because he believed a warrant wasn’t necessary. (Slip op. at 21).)

But beyond that default, what should lower courts (and litigators, and police) look at in deciding whether there are exigent circumstances for a warrantless blood draw in an OWI case? Certainly the opinion in Schmerber provides an example of an application of the proper test. And, logically, the facts regarding the officer’s ability (or inability) to get a warrant quickly in the particular case should come into play. But beyond that, the opinion offers little guidance. In fact, five justices say the only issue the Court can decide is that the Fourth Amendment does not allow the police to draw blood without a warrant in all OWI cases based solely on the dissipation of alcohol:

Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. (Slip op. at 22-23).

Note, however, that Justice Kennedy, who provided the fifth vote for most of the conclusions of the lead opinion, suggests that states and local authorities should be able to adopt “rules, procedures, and protocols” to help officers meet the reasonableness requirements of the Fourth Amendment. (Concur. at 1). Three other justices (Roberts, Breyer, and Alito) agree with the majority’s rejection of a per se rule, but fashion what the plurality says (slip op, at 14) is itself categorical rule: If there is time secure a warrant before blood is drawn, the police must seek one; but if the officer reasonably concludes there was not sufficient time, of he applied for a warrant but didn’t get it before blood could be drawn, the search is still reasonable. (Concurrence/dissent at 8-9). (If you’re counting heads and wondering how the ninth justice voted, there was a sole dissent by Thomas agreeing with the state’s argument for a per se rule.)

A final point: This decision obviously applies to searches occurring after today, but what about searches that occurred before today? The answer is that the state will argue that in conducting warrantless blood draws before today, Wisconsin police relied in good faith on Bohling and that the blood test results should therefore not be suppressed. That argument is likely to prevail, just as it did a few years ago after Arizona v. Gant, 129 S. Ct. 1710 (2009), clarified (or changed) the rule about searching a car incident to the arrest of an occupant. For more on how the good faith exception to the exclusionary rule ultimately precluded retroactive application suppression of evidence obtained in violation of Gant, see Davis v. United States, 131 S. Ct. 2419 (2011) (discussed here and here), and State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97 (discussed here), and State v. Littlejohn, 2010 WI 85, 327 Wis. 2d 107, 786 N.W.2d 123.

UPDATE (8/19/13): If you are considering a challenge to police conduct that occurred before McNeely in reliance on Bohling and are looking for some guidance on whether there’s an argument that the good faith rule in Davis doesn’t apply, take a look at Orin Kerr’s recent post on the subject. Kerr, who represented Davis in the Supreme Court, gives an overview of how Davis has been applied in lower courts over the last two years.

State v. Kenneth F. Johnston, 2012AP2427-CR, District 3, 4/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

The search of Johnston’s car was supported by probable cause to believe there were open intoxicants in the car:

¶17      In this case, before [Officer] Wojcik searched the vehicle for open intoxicants, Wojcik smelled the odor of intoxicants emanating from the driver-side door.  Wojcik knew, based on Johnston’s preliminary breath test, that Johnston had not consumed any alcohol recently.  At this point, it was reasonable for Wojcik to infer that Johnston was not the source of the alcohol odor.  Wojcik also knew that, despite not having consumed alcohol recently, Johnston was sweating and was acting peculiar by not looking at Wojcik.  Finally, Wojcik knew there was an open case of beer in the back seat and some of the cans were missing from the beer case.  Common sense dictates that an open can of beer emits an odor of alcohol.

That there may have been innocent explanations for Johnston’s peculiar behavior, the odor of intoxicants, and the partially empty case of beer in the back seat is irrelevant (¶18), for “an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause.”  State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125. And, the scope of the search, which included a look under the seats, was reasonable under United States v. Ross, 456 U.S. 798, 825 (1982) (“[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search”) (¶19).

The search under the driver’s seat revealed marijuana and a pipe, prompting an admission from Johnston he’d smoked marijuana five hours earlier. (¶10). That explained the “peculiar” behavior and the .00 PBT and resulted in the charge of operating with a restricted controlled substance. (¶¶1, 11).

State v. Clayton W. Williams, 2013 WI App 74, petition for review granted 11/21/13; reversed, 2014 WI 64, 7/15/14; case activity

Wisconsin Stat. § 346.65(2)(am)6. makes OWI 7th, 8th, or 9th a Class G felony, but also provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.” While the language refers to the imposition of a bifurcated sentence and specifies the minimum term of incarceration in the event a bifurcated sentence is imposed, the court of appeals holds that “nothing in the plain language of the subdivision mandates or requires that a bifurcated sentence be imposed.” (¶9).

In rejecting the state’s argument that the language “clearly assumes a bifurcated sentence will imposed” and “implies” such a sentence is mandatory (¶¶8, 14), the court looks to the surrounding statutory language for guidance:

¶11      When we look at the surrounding statutes in Wis. Stat. § 346.65(2)(am), Kalal, 271 Wis. 2d 633, ¶46, we see that those statutes contain the mandatory language that is missing in § 346.65(2)(am)6.  Section 346.65(2)(am) sets forth the various penalties for violating Wis. Stat. § 346.63(1).   In subdivisions 2. through 5., which set forth the penalties for second offense OWIs through sixth offense OWIs, the legislature included language establishing mandatory minimum sentencing requirements.  Subdivision 2. provides that a defendant guilty of a second offense OWI “shall be fined not less than $350.”  Section 346.65(2)(am)2.  Subdivision 3. provides that a defendant guilty of a third offense OWI “shall be fined not less than $600 … and imprisoned for not less than 45 days.”  Section 346.65(2)(am)3.  Subdivision 4. and subdivision 4m. provide that a defendant guilty of a fourth offense OWI “shall be fined not less than $600 … and imprisoned for not less than 60 days” or “shall be fined not less than $600 and imprisoned for not less than 6 months,” depending on when the prior convictions occurred. Sections 346.65(2)(am)4. and 4m.  And subdivision 5. provides that a defendant guilty of a fifth or sixth offense OWI “shall be fined not less than $600 and imprisoned for not less than 6 months.”  Section 346.65(2)(am)5.  No such similar mandatory language is included in subdivision 6. for seventh and subsequent offenses.  See Responsible Use of Rural and Agric. Land v. PSC, 2000 WI 129, ¶39, 239 Wis. 2d 660, 619 N.W.2d 888 (When the legislature uses words in one subsection but not in another, “‘we must conclude that the legislature specifically intended a different meaning.’” (quoted source omitted)).

Because the circuit court sentenced Williams under the mistaken belief that he was subject to a mandatory minimum sentence, the case is remanded for resentencing. (¶16).

A refreshingly exact reading of the plain statutory language–language made even plainer by other OWI penalty provisions, which show that the legislature knows how to create mandatory minimum penalties when it wants to. For other examples of how the legislature creates mandatory sentences, see the statutes prescribing the minimum sentence and providing that the court shall (or may) not place the person on probation or may place the person on probation only if certain criteria are met. See, e.g., §§ 939.617, 939.618(2)(a), 939.619(2), 973.09(1)(c).

Note that § 346.65(2)(am)7., which makes OWI 10th or more is a Class F felony, also sets a minimum confinement (of 4 years) for any bifurcated sentence imposed. For the same reasons given in this opinion, that language doesn’t create a mandatory minimum penalty for 10th or more offenses.

Judge Blanchard dissents, finding the statutory language ambiguous (¶¶20-28) and noting the “puzzling feature” that under the majority’s construction a court doesn’t have to impose prison, but if it does the sentence must include at least 3 years of confinement. (¶29). Having concluded the statute is ambiguous, the dissent canvasses the legislative history and finds evidence the legislature intended to create a mandatory minimum sentence. (¶¶31-39). Between the dissent and the fact this opinion isn’t recommended for publication, it seems likely this isn’t the last word on the matter.

State v. James D. Hills, 2012AP1901-CR, District 4, 4/11/13; court of appeals decision (not recommended for publication); case activity

Hills sent letters and made at least one phone call to an assistant city attorney (ACA) who, he believed, had wrongfully prosecuted him under the city’s disorderly conduct ordinance. In those communications he berated the ACA (calling her incompetent, corrupt, dishonest, deceitful, worthless, and worse), accused her of prosecuting him with perjured testimony so she could collect money for the city, demanded she “correct” the matter or he would seek “justice,” and also demanded the return of his forfeiture ($429) or he would take matters into his own hands. He also complained to OLR and the AG and governor. (¶¶2-14). He was convicted of stalking and extortion for this conduct. (¶1).

First Amendment — Speech — “True Threats”

The court rejects Hills’s argument that, as a matter of law, his statements were not “true threats,” but were instead protected speech under the First Amendment because they were attempts to petition government officials to correct what he believed to be an injustice. (¶¶28-29). The test for “true threats” is set out in State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762: “A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech.” It is an objective test and considers the totality of the circumstances. Id. Applying that test here, the court rejects Hills’s claim:

¶33      First, the jury could reasonably infer from the evidence that the ACA had reason to believe that Hills had a propensity for violence. After all, she had prosecuted him for shoving a child, and Hills’ various letters and messages made clear that Hills was an angry and unreasonable person.

¶34      Second, the threatening tone of Hills’ messages was repeated over time.  His last two letters showed that he was extremely angry at the ACA and that he was both frustrated with the legal system and confident that it would not bring the ACA to justice.

¶35      Third, Hills’ expressed anger is out of proportion to the wrong he alleges was committed against him.  He compared it, for example, to being raped.  Hills plainly stated in his last letter that, if the ACA did not comply with his demands, he would not “recover” and would never relent.  The very fact that Hills was obsessed with the alleged wrong and refused to let it go suggests to a reasonable person that Hills might take action out of proportion to the alleged wrong.

¶36      Finally, although Hills did not ever directly state that he planned to personally physically harm the ACA, his statements nonetheless carried that message.  He described the ACA as “sinful” and a “worthless piece of shit”—a person the world would be better off without.

¶37      Hills argues that his statements about harm to the ACA are obviously hyperbole because they describe acts that are plainly unrealistic, such as placing her “in stocks,” whipping her, and hanging her until she is dead.  But it is precisely the over-the-top nature of such comments that suggests to a reasonable person that Hills was willing to engage in some type of harmful action.

The court also rejects Hills’s claim that the circuit court erred by failing to accept his proposed addition to the jury instructions, which would have explained that the state has the burden to prove his conduct was not done in the exercise of his constitutional rights. (¶40). Hills’s proposed language not only failed to define “true threat” for the jury (¶41), but, more fundamentally, both offenses already require proof of a “true threat”:

¶43      To prove stalking, the State had to prove beyond a reasonable doubt that Hills’ intentional course of conduct would have caused a reasonable person to suffer serious emotional distress or to fear bodily injury or death to herself or to a member of her family.  This language, of course, aptly describes a “true threat” that does not enjoy constitutional protection.

¶44      To prove extortion, the State was similarly required to prove that the conduct was a “true threat.”  The jury was instructed that it needed to find, beyond a reasonable doubt, that Hills actually threatened injury to the person of the ACA.

Sufficiency of the evidence

In a fact-intensive discussion that won’t be summarized here, the court also finds the evidence was sufficient to support Hills’s convictions on both the stalking and extortion charges. (¶¶16-27).

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident, the police had Kennedy sit in a squad car while their investigation continued, partly out of concern for his safety due to the crowd that had gathered. (¶¶7-8). About 75 minutes later he was arrested for homicide by intoxicated use of a vehicle. (¶9). Kennedy moved to suppress the evidence obtained after his arrest, arguing that even though his initial detention in the squad car was valid, the lapse of time between being asked to sit in the squad car and being placed under arrest transformed the detention into an arrest which was not supported by probable cause. (¶¶11, 16).

Citing Florida v. Royer, 460 U.S. 491 (1983), the court of appeals affirms the circuit court’s denial of the suppression motion, on two grounds. First, asking Kennedy to wait in a squad car for approximately seventy-five minutes while police investigate a traffic death was not unreasonable under the circumstances (which included the fact “the crime scene was, sadly, a gruesome one, that required a significant amount of investigative attention by police”). (¶17). Second, even assuming Kennedy’s detention morphed into an arrest,  there was probable cause to arrest Kennedy at the time he was asked to sit in the squad car based on the information the police had, including the damage to and blood on Kennedy’s car, Kennedy’s admission he was driving the car that hit the pedestrian, and the indicia of intoxication (strong odor of alcohol , swaying, glassy and bloodshot eyes, slurred speech. (¶18). (The lack of field sobriety tests does not change the probable cause conclusion. (¶¶19-20).)

Newly discovered evidence

A statement purportedly made by Summerville, the victim’s boyfriend, that the victim ran out in front of Kennedy’s car does not qualify as newly discovered evidence, applying the standard from State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590. It is inadmissible double hearsay, as it is contained in an affidavit by Kennedy’s civil attorney, who avers that he was told by an officer on the scene of the accident that she overheard Summerville say his girlfriend was walking across the street without paying attention to traffic. (¶¶22, 25). Further, there is nothing in the record showing the statement was discovered after Kennedy was convicted, as there is no indication when Kennedy’s civil attorney heard the information from the officer, who overheard it the night of the offense. (¶27). Finally, Kennedy does not explain why he was not negligent in seeking out the statement, but says only the evidence “did not materialize until after trial.” (¶28).

Ineffective assistance of counsel

The trial court did not err in denying a hearing under State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979), on Kennedy’s ineffective assistance claim, which alleged trial counsel was deficient in seven ways. (¶¶30-49). Given their fact-specific nature, Kennedy’s specific arguments won’t be summarized here, except to say the claims about counsel’s conduct were either not supported by any evidence or were not prejudicial, even if counsel was deficient.