On Point

State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity

Guilty plea — factual basis; value of stolen property

The victim’s statements as to the value of the stolen property (which were set forth in the complaint) provided a sufficient factual basis for concluding that the value exceeded the $5,000 threshold for felony theft:

¶19      …. The criminal complaint identifies particular pieces of jewelry and their estimated values, as provided by the victim, alleging that the total loss from thefts of the items was $11,000.  Thus, the complaint explicitly values the stolen items in unambiguous dollar amounts, and attributes the valuations to someone in an apparent position to be aware of accurate values.

¶20      Under Wisconsin law, an owner of property may testify as to the value of his or her property and such testimony may establish a basis for a civil damages verdict, even though the owner’s opinion as to value is not corroborated or based on independent factual data.  Mayberry v. Volkswagen of Am., Inc., 2005 WI 13, ¶42, 278 Wis. 2d 39, 692 N.W.2d 226.  This case law supports a conclusion that the victim-owner’s opinion of value here was sufficient to provide a factual basis to show that the value of the jewelry exceeded $5,000.  Brabazon presents no reason to conclude that the victim’s valuations, as set forth in the complaint, are unreliable.

The court rejects Brabazon’s reliance on White v. State,  85 Wis. 2d 485, 271 N.W.2d 97 (1978), which also involved a challenge to the factual basis for the value of a stolen item, because in that case the owner’s valuation referred to an earlier-in-time purchase price, not the value at the later time of the theft:

¶24      Here, in contrast, the complaint contains specific allegations by the victim as to the total value of the stolen jewelry at the time of theft.  According to the complaint, each piece of the stolen jewelry is indicated as “valued” at a certain amount, suggesting a contemporaneous value.  Moreover, Brabazon does not argue that there is any reason, and we see no reason, to infer from the complaint that the victim was offering a value for a time other than the time of the theft.

Breach of the plea agreement

The state did not breach the plea agreement by recommending prison, as opposed to probation, at the sentencing hearing, because the terms of the plea agreement–which were not set out clearly in writing but could be “reconstructed” from the record–allowed the state to recommend prison if Brabazon received a prison sentence in a case from another county in which she was being sentenced after revocation of probation.

The plea questionnaire said the state would recommend probation, but the transcript of the plea hearing reveals that the prosecutor said a probation recommendation would not make “sentence sense” if Brabazon received a prison sentence in her pending sentencing after revocation of probation in a different county. (¶¶31-32). Brabazon and her attorney did not expressly contest this representation. (¶33). By the time of the sentencing hearing Brabazon had been sentenced to prison in the other county, so the prosecutor recommended prison, not probation. (¶¶7, 34).   Brabazon’s attorney “indicated her disagreement” with this recommendation and noted the plea questionnaire and their “discussions” required a probation recommendation; but when asked by the judge if she and her client intended to proceed despite the state’s recommendation, counsel said “yes.” (¶¶35-36). Moreover, at a postconviction hearing counsel testified  she knew before sentencing the state would recommend prison, not probation, and both she and Brabazon testified they knew they had the opportunity to withdraw the plea before sentencing but decided instead to proceed. (¶37). No surprise, then, that:

¶38      Based on this record, the circuit court found that “both sides knew full well that … what happened in Marathon County may change the recommendation of the district attorney” in the instant case.  In other words, the court found that the State and Brabazon had never agreed that the State would unconditionally recommend probation, regardless of what happened in the Marathon County case.  Instead, the agreement was that the State’s recommendation would depend on the outcome in that case.

The circuit court’s findings are not clearly erroneous, so given the conditional nature of the plea agreement, when Brabazon showed up for sentencing with a prison sentence from the other county, the state was free to recommend prison instead of probation, so there was no breach of the plea agreement. (¶39).

This record gave even the court of appeals “pause” as to what the state was supposed to recommend (¶40) and leads to an exhortation for plea agreements to be put in writing (¶42 n.3). Not bad advice, though written agreements can be as unclear and incomplete as oral ones. The real goal is just to be clear, whether orally or in writing.

Though the decision doesn’t mention it, the initial “pause” this record might give is whether there was a plea agreement at all–that is, whether there was a meeting of the minds, evidenced through assent to the agreement’s terms, which is the sine qua non of a plea agreement. State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis.2d 422, 724 N.W.2d 685. But at the same time, a plea agreement can be renegotiated–with the defendant’s consent. State v. Sprang, 2004 WI App 121, ¶28-29, 274 Wis. 2d 784, 683 N.W.2d 522. Given the clear evidence Brabazon decided to proceed despite knowing the change in the prosecutor’s recommendation, it might be best to characterize what happened here as a renegotiation.

A final thought, maybe neither here nor there: Why would probation not make “sentence sense” in this case even if Brabazon got a prison sentence in the other county? The state’s new recommendation was for consecutive prison, but probation can run consecutively to a prison sentence, too. Whether there was any attempt to re-negotiate for consecutive probation doesn’t appear in the opinion. Just something to keep in mind if you ever find yourself needing to renegotiate a plea that called for a probation recommendation….

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record, though such a colloquy might be “good practice” in some cases. Here’s the background:

Libecki was convicted of first-degree intentional homicide in the stabbing death of Theresa Wesolowski. At trial the state’s case included evidence of Wesolowski’s blood that had been discovered in the back seat of the Ford Explorer Libecki owned at the time of her murder. This blood evidence was discovered following Libecki’s immunized, compelled testimony in John Doe proceedings concerning Wesolowski’s murder. Libecki’s defense hinged on the story he gave in those John Doe proceedings: that a third party, a since-deceased coworker dealing in drugs, killed Wesolowski in the backseat of Libecki’s Explorer.  That story provided an alternative explanation for the physical evidence linking Libecki to the scene, and the blood evidence was  consistent with his version of events. (¶¶5-14). Because the blood evidence was consistent with his defense, Libecki did not object to the state’s introduction of the evidence; indeed, defense counsel elicited (over the state’s objection) the fact Libecki urged the police to look for the blood evidence. ( ¶¶12-13, 21).

On appeal, however, Libecki argued his Fifth Amendment right against compelled self-incrimination was violated because the circuit court was required to establish, in a personal colloquy on the record, that Libecki knowingly and voluntarily waived his immunity as to the blood evidence.  The court of appeals rejects this claim:

¶18      Libecki does not cite, and we have not found, any authority holding that the right to exclude immunized testimony or evidence derived from that testimony falls within that narrow class of rights that only the defendant, personally, may waive.  See State v. Smith, 2012 WI 91, ¶¶53-54, 342 Wis. 2d 710, 817 N.W.2d 410 (discussing, generally, that the defendant’s waiver of certain rights must be made in person and on the record), cert. denied, 133 S.Ct. 635 (2012); see also State v. Brimer, 2010 WI App 57, ¶5, 324 Wis. 2d 408, 781 N.W.2d 726 (applying ineffective assistance of counsel standard to issue of failure to object to admission of compelled testimony).  While a personal colloquy must be made if the defense announces that the defendant will not take the stand in his or her own defense, State v. Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485, no such personal colloquy is mandated when a defendant wants to take the stand, State v. Denson, 2011 WI 70, ¶63, 335 Wis. 2d 681, 799 N.W.2d 831.  The decision to allow the use of compelled testimony is the same thing as a decision to take the stand because, after all, it is the defendant’s testimony.  So, requiring a personal colloquy before a defendant decides to waive immunity would make little sense under these precedents.  A grant of use and derivative use immunity is designed to provide protection “coextensive” with the privilege against self-incrimination, not broader protection.  See State v. Spaeth, 2012 WI 95, ¶36, 343 Wis. 2d 220, 819 N.W.2d 769 (discussing Kastigar v. United States, 406 U.S. 441 (1972)).

Though there was no personal colloquy in this case, the record establishes that Libecki’s waiver of immunity regarding the blood evidence was knowing and voluntary:

¶22      …[I]t is obvious that both the State and the defense viewed Libecki’s act of leading investigators to the blood evidence in his vehicle as exculpatory, not damaging, when viewed in context with the rest of the evidence. It was Libecki’s view, both before and during trial, that this blood evidence and the way it was discovered would help him, not hurt him.  He wanted this evidence before the jury.  It supported his story.

While the lack of a personal colloquy is not an error here, the court does say that such a colloquy “would generally be a good practice if the circuit court has been alerted to the fact that the defendant was given use immunity and one party or another wants to use the testimony anyway.” (¶19). If the trial court knows beforehand the evidence will be used, it “can make sure that there is no confusion by the defendant concerning waiver, if in fact the defendant wants to waive immunity.  It can also hear whether the evidence comes from a source that is independent of the testimony provided as a result of use immunity.” (Id.).

The court also rejects the state’s assertion that this issue can be resolved by Libecki’s failure to object to the use of the blood evidence at trial. Instead, the court says:

¶20      …. A defendant who has a preexisting immunity agreement with the State should be able to rely upon that bargain with the State without having to object should the State intend to violate its promise.  ….  Simply put, the State is prohibited from trying to use that evidence to make its case, absent an independent source or a waiver.  As an officer of the court, the prosecutor should be up front with both the defendant and the court.

All very true, and even helpful, but ultimately precatory, so don’t be lulled into a false sense of security. If your client has an immunity agreement and the state is introducing evidence that violates it, object, up and down, clearly and persistently. If you don’t, any appeal will likely include an ineffective assistance claim, which is, typically, both unpleasant and unsuccessful. And that brings us to the next issue:

Ineffective assistance of counsel — failure to object to use of immunized testimony or evidence; failure to object to amendment of information

As will be obvious from the above discussion, trial counsel was not deficient for failing to object to the state’s use of the blood evidence. The admission of the evidence was clearly part of counsel’s trial strategy, and “[t]hat strategy was sound because, as we have already commented, the location of the blood in the Explorer and the manner by which the evidence was finally found, tended to support Libecki’s story of what happened, a story that provided an alternative explanation for the otherwise damning physical evidence.” (¶25). Nor, finally, was counsel ineffective for failing to object to the state’s amendment to the information to drop the party-to-a-crime theory, for eliminating that theory fit with Libecki’s defense that he was a mere bystander, and forced the jury to face squarely the question of whether Libecki, himself, did the crime, or whether he was simply present at the scene. (¶26).

State v. John R. Edwards, 2013 WI App 51; case activity

The longer period of probation applicable to a misdemeanor act of domestic abuse under Wis. Stat. § 973.09(2)(a)1.b. may be ordered even though the charging documents did not allege the crime was an act of domestic abuse.

Edwards was charged with substantial battery, strangulation and suffocation, and disorderly conduct based on an incident with his live-in girlfriend. (¶¶4-5). The two felonies were denominated “domestic abuse” offenses and, along with the penalties, referred to imposition of “the domestic abuse assessment under § 973.055. The DC count did not refer to “domestic abuse.” (¶5). After Edwards was convicted, the judge placed him on probation for two years for the DC, relying on § 973.09(2)(a)1.b., which allows up to two years’ probation for a person convicted of a misdemeanor act of domestic abuse instead of the usual maximum term of probation of one year (§ 973.09(2)(a)1r.).

Edwards argued he was denied due process because of the lack of notice the DC might be an act of domestic abuse that would subject him to the longer term of probation. Not so, says the court of appeals. First, probation is not a sentence, but an alternative to a sentence, and “[u]nlike with a maximum sentence or a penalty enhancer, there is no statutory requirement that an accused be advised of potential probation terms or conditions.” (¶7). Next, relying on State v. Luu, 2009 WI App 91, 319 Wis. 2d 778, ¶15, 769 N.W.2d 125, which held that § 973.09 gives sufficient notice of the potential original length of probation and the fact that probation could be extended without limit, the court holds the statute also provides enough notice of the longer potential period of probation in this situation:

¶9        Here, as in Luu, the statute itself provided Edwards sufficient notice of the potential probationary term for acts of domestic abuse. The State did not need to set forth in the information and complaint that it was seeking two years of probation under Wis. Stat. § 973.09(2)(a)1.b. The fact that the State did indicate that it sought a finding of domestic abuse in the first two [felony] counts does not create a duty to do so in the third.

In addition, the court concludes the information and complaint did not mislead Edwards or provide him with insufficient notice so as to constitute a violation of his right to due process because the complaint’s probable cause account “is all about his beating his live-in girlfriend, threatening that he would kill himself if she did not come home right away, and then being found in bed with a cell phone and knife. Including “domestic abuse” as magic words in the recitation of the disorderly conduct count was not necessary.” (¶10). As  the concurrence succinctly explains:

¶14      …. So, bottom line, it is irrelevant whether the state charged Edwards with “disorderly conduct” rather than “disorderly conduct—domestic abuse.” The fact is that he was the perpetrator of an ongoing, fluid domestic abuse incident and he therefore should have known that the trial court might consider his disorderly conduct as being part of that incident.

The court also holds that the facts of the case show the trial court’s conclusion the DC was an act of domestic abuse was “far from erroneous.” (¶12).

Is it so plain Edwards would know the DC might result in extra probation given the facts alleged in the complaint? Given that the other two charges were tagged as “domestic abuse,” wouldn’t it be just as logical he would think the DC wasn’t alleged to be “domestic abuse”? The charges were in the same document, after all. And we presume the legislature chooses its words carefully and precisely, Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984), so why not prosecutors who draft charging documents?

On the other hand, even if the DC charge was denominated as “domestic abuse,” would that have alerted Edwards to the possibility he’d face a longer term of probation? It is virtually certain the complaint would not have told him that, for as the court says (¶7) there is no statutory requirement that the maximum terms of probation be set forth in the charging document. It would have been up to Edwards or his lawyer to read § 973.09(2)(a)1. to discern he faced two years of probation instead of one. So if you’re handling a case with a misdemeanor that might be an act of domestic abuse under § 968.075(1)(a)–or that might be covered by some other category under § 973.09(2)(a)1.–be aware your client could be subject to more probation regardless of whether the complaint specifically alleges the charge is subject to extra probation.

Finally, Edwards had a trial, so there was ample evidence to show the DC was an act of domestic abuse. The record might not be complete or detailed enough for the judge to find the predicate facts for ordering extra probation where there is a plea and only sparse information in the probable cause section of the complaint.

State v. Marvin L. Dillman, 2012AP865-CR, District 2, 3/27/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police officer had reasonable suspicion to stop truck which she first saw “sideways” on the road and then observed accelerate quickly toward the curb before correcting itself and speeding away so quickly it required her to accelerate her squad car to 50 m.p.h. over three or four blocks to catch up:

¶7        Kollmann witnessed Dillman’s truck sideways in the roadway and then travel at a speed in excess of the speed limit. Kollmann has ten years of experience as a police officer, including substantial amounts of training in regulation of speeding, along with issuing hundreds of tickets and warnings to speeders. Given Kollmann’s experience, the totality of these articulable facts, and the reasonable inferences made by Kollmann, there was reasonable suspicion that Dillman was violating traffic laws prior to the stop.

Aside from the budget, the legislature has been busy drafting and introducing new legislation.  Here are just a few examples of bills that have been introduced so far this session.
 

• Senate Bill 40 – essentially grants the powers of probation and parole agents to search the person and home of individuals on extended supervision, probation or parole to law enforcement officers.
• Assembly Bill 62/Senate Bill 52 expands the definition of an intoxicant to include a substance that is inhaled, ingested, or otherwise consumed in a manner that is contrary to its intended use or labeling, and that is inhaled, ingested, or otherwise consumed to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
• Assembly Bill 68/Senate Bill 58 creates a misdemeanor penalty for first offense operating while intoxicated if the blood alcohol concentration is above 0.15.
• Assembly Bill 71/Senate Bill 60 increases penalties for third and subsequent offenses of operating while intoxicated.
• Assembly Bill 74/Senate Bill 100 creates a new Part D surcharge of $20 for all felony and misdemeanor convictions.  The revenue is kept by the county and distributed by a newly created Crime Prevention Funding Board (CPFB).  The CFPB is made up of the presiding judge, district attorney, the sheriff, the county executive/administrator/board chair, the presiding elected official of the largest municipality in the county, someone elected by the top law enforcement officials in the county, and someone appointed by the county public defender’s office.

 While all of these will have an impact on the SPD or our clients, by far the most significant are bills to increase penalties for operating while intoxicated.  The two bills listed above, plus a few others, have a combined estimated fiscal impact to the SPD of just over $2,000,000 per year.  The estimated cost for these bills is likely to be a significant factor as they move through the legislative process.

Florida v. Jardines, USSC No. 11-564, 3/26/13

United States Supreme Court decision, affirming Jardines v. State, 73 So. 3d 34 (2011)

In this 5-to-4 decision, the Supreme Court holds that using a drug-sniffing dog on a homeowner’s front porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. Because the search was conducted without probable cause, it rendered invalid the search warrant for the home that was based on information gathered in the search.

Justice Scalia’s majority opinion is grounded on what it calls the “simple baseline” of the Fourth Amendment as articulated last term in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 950 n. 3 (2012): “When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a ‘search’ within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’” (Slip op. at 3). Applied here, this baseline principle makes this case “a straightforward one”:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. (Slip op. at 3-4).

Before unpacking the two parts of this conclusion, here are the facts and two notes on the case’s significance.

Detectives had an unverified tip Jardines was growing marijuana in his home. After some surveillance, two detectives, one of whom was handling  a drug-sniffing dog, approached the home. As they approached the front porch the dog began “energetically exploring” the area and, after sniffing the base of the front door, sat down–its “alert” behavior. The police then used this information to get a search warrant. (Slip op. at 1-2).

The first and most obvious take-away from the decision is that if police go onto the curtilage of a home with a drug-sniffing dog they are engaged in a search, so they will either need a warrant or have to justify the conduct based on a exception to the warrant requirement (e.g., consent). The fact this is an intrusion into the curtilage of a home obviously distinguishes the conduct from dog sniffs during traffic stops which, as the concurrence notes, the Court has upheld “over and over” because of the diminished expectations of privacy in cars compared to homes. (Concur. slip op. at 3 n.1). Wisconsin courts have come to the same conclusion regarding dog sniffs during traffic stops. State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348. Note, however, that the Court’s opinion in this case contradicts Miller’s suggestion that because dog sniffs reveal only illegal conduct, they intrude on no legitimate privacy interest “in any setting” (¶9); at the same time, it is just as clear that the Court’s explicit reliance on Jones and the physical intrusion into constitutionally protected area means the sniff itself is not a search.

The second thing to note is the Court’s explicit reliance on Jones, which a number of commentators (including this site) have seen as a significant change in Fourth Amendment case law because of its putative revival of the “trespass” test that predated the “reasonable expectation of privacy” test established by Katz v. United States, 389 U.S. 347 (1967). The Court’s reliance on Jones suggests the consideration of property interests as well as expectations of privacy is here to stay, that Jones was not just a one-off holding good for that situation only (the act of attaching a GPS tracking device to a car). Will this change Fourth Amendment law significantly? One knowledgeable commentator, Orin Kerr, doesn’t think so, for he makes the interesting claim (here) that there wasn’t a “trespass” test before Katz; that Katz didn’t really change the results of the cases; that whatever “trespass” test Jones purports to revive (18th century trespass law? current trespass law?) might be more a change in form than substance; and that both privacy and property interests matter. Whether or not you agree with Kerr on that point, for now it seems safe to say that in formulating Fourth Amendment claims you should consider not only whether your client had a reasonable expectation of privacy, but also whether the police physically intruded on some sort of property interest.

Back to unpacking the Court’s conclusion that the police intruded on a protected area and did so without authority:

First, there is no doubt the police entered the constitutionally protected curtilage of the home, as the porch is “the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’” (Slip op. at 5, quoting Oliver v. United States, 466 U.S. 170, 182 (1984)). The “very core” of the Fourth Amendment is the right to retreat into your own home and be free from unreasonable governmental intrusion, Silverman v. United States, 365 U. S. 505, 511 (1961), and “[t]his right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.” (Slip op. at 4).

Second, the police were not authorized to be on the porch. The Court–and custom–recognize “the knocker on the front door” as a homeowner’s limited invitation or license to others to enter onto his or her property, though “[t]his implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” (Slip op. at 6). Likewise, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” (Slip op. at 6, quoting Kentucky v. King, 563 U. S. ___, 131 S. Ct. 1849, 1862 (2011)). But this customary, limited invitation doesn’t include using a trained police dog to explore the area around the home to try to discover incriminating evidence:

An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. (Slip op. at 7).

The dissent (by Alito, joined by Roberts, Kennedy, and Breyer) criticizes the majority’s conclusion that the officer’s presence on the front porch somehow exceeds the same implied license that authorizes an officer to engage in a standard “knock and talk”—which, after all, is also meant to (and may in fact) gather information, whether from talking with the homeowner or from what the officer sees (and, perhaps, smells). (Dissent slip op. at 4-8). For the dissent the only difference between the two situations is the presence of the dog, which by itself doesn’t transform the officer’s authorized approach into a trespass. (Dissent slip op. at 8-9). The majority opinion is far more in line with our sense of the customary limit on the license granted to people to walk up to our front door; that said, its reliance on custom shows that the officers’ physical intrusion on the curtilage is not the dispositive factor it may have initially appeared to be. This supports Orin Kerr’s point that both privacy expectations and property interests matter.

Finally, the Court finds it unnecessary to consider whether the use of the dog to detect the odor of drugs implicates any legitimate expectation of privacy. The “reasonable expectation of privacy” test created in Katz does not subtract from (or supplant) that baseline protection against physical intrusion into a constitutionally protected place, and Fourth Amendment rights do not rise or fall with the Katz formulation. (Slip op at 9, quoting Jones, 131 S. Ct. at 950).

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. (Slip op. at 9).

A concurrence by Kagan (joined by Ginsburg and Sotomayor) analogizes the use of the dog in this case to someone standing on the front porch peering into the home with high-powered binoculars, and concludes the search violated both the property and privacy interests protected by the Fourth Amendment, noting that “[i]t is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align.” (Concur. slip op. at 3). For these justices this case is resolved by the line drawn at “the entrance to the house” by Kyllo v. United States, 533 U. S. 27, 40 (2001), which held that police officers conducted a search when they used a thermal-imaging device to detect heat emanating from a private home even though they did not physically intrude on the property:

That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device … not in general public use” (a trained drug detection dog) to “explore details of the home” (the presence of certain substances) that they would not otherwise have discovered without entering the premises. (Concur. slip op. at 4).

The dissent rejects the conclusion of the concurrence that the homeowner had a reasonable expectation of privacy in the odors that might escape the home and be detected by the dog. (Dissent slip op. at 9-11).

State v. Rodney Washington, 2012AP1015-CR, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity

Statute of limitations, § 939.74(1) — sufficiency of “John Doe” complaint’s identification of defendant for purposes of tolling statute of limitations

The crimes in this case—sexual assault and robbery—were alleged to have occurred in 1994 and 1995. In 2000, eleven days before the statute of limitations was to run, the state filed a criminal complaint charging “John Doe #5” based on biological evidence collected at the crime scenes and analyzed for DNA. The identifying information in the caption of the complaint described John Doe #5 as an “Unknown Male with Matching Deoxyribonucleic Acid (DNA) Profile at Genetic Locations D1S7, D2S44, D4S139, D5S110, D10S28, and D17S79.” The actual DNA profile was not included in the complaint. (¶2). In 2007, the State Crime Lab matched Washington’s DNA to the DNA on each of the victims, and the state filed an amended complaint naming Washington as the defendant. Unlike the original complaint, the amended complaint listed a series of numbers at each of the genetic locations, thereby providing information as to the perpetrator’s specific DNA profile. (¶3).

Applying State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366, and State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, the court of appeals holds that the complaint satisfied the requirement that it identify with reasonable certainty who is being charged even though it did not contain an individual DNA profile:

¶19      In Dabney, we held that a John Doe complaint and arrest warrant that identified the defendant by a DNA profile satisfied the requirements that a complaint state “who” is charged and that the arrest warrant describe the person to be arrested with “reasonable certainty.” Id., ¶¶8-15. In Davis, we reaffirmed that “the State is permitted to file a complaint, which identifies the defendant only by his DNA profile.” Id., 281 Wis. 2d 118, ¶32. …. Washington attempts to distinguish this case, arguing that the complaints and arrest warrants in Dabney and Davis included the defendants’ entire DNA profile, whereas here, the complaint and arrest warrant did not include a DNA profile, but rather, only included the locations of six DNA markers that are common to all human beings.

****

¶21      … [T]he original complaint set out in exacting detail how the DNA samples in this case were collected, stored, and analyzed. Moreover, it explicitly stated that the defendant in this case is the individual whose DNA “[m]atch[es]” the DNA collected from the victims, and as the complaint notes, the chances of a random match for a nonrelative are substantially greater than one in a billion. While Washington finds fault with the fact that the actual DNA profile was not included in either the original complaint or the arrest warrant, the language in each requiring the defendant to be the individual who “[m]atch[es]” the DNA on file at the locations listed in the complaint and warrant is sufficient to describe “who” with “reasonable certainty.” See Dabney, 264 Wis. 2d 843, ¶15 (“a DNA profile is arguably the most discrete, exclusive means of personal identification possible”).

The court also distinguishes State v. Belt, 179 P.3d 443 (Kan. 2008), which—relying on Dabney and Davis—found a complaint insufficient because it listed the DNA markers common to all human beings, but did not include the defendant’s actual DNA profile at those locations: “[U]nlike in Belt, here, the complaint and warrant did not just list the DNA locations common to all human beings, but also stated that John Doe #5 was the individual whose DNA “[m]atch[ed]” the DNA collected from the victims at each of those markers. That language, in and of itself, distinguishes this case from Belt.” (¶22). But the complaints in Belt said “the DNA description would be unique only to the person committing” the charged crimes; isn’t that the same as saying the DNA of the defendant “matched” that found in the material from the victims? No matter: “[E]ven if the complaint and arrest warrant in Belt were identical to the one before use, we are not bound by decisions made by the Kansas Supreme Court.” (¶22).

Denial of right to self-representation or to substitution of counsel

The circuit court did not erroneously exercise its discretion when it concluded Washington was not competent to represent himself because his behavior leading up to his request to proceed pro se was “irrational and disruptive,” revealing an “obsession with a conspiracy theory” that the John Doe complaints had been fabricated and sometimes resulting in his refusal to participate in the proceedings. (¶¶31, 33-34).

¶35      Such irrational and obsessive behavior led defense counsel to question Washington’s competency to stand trial. And while, after an evaluation, it was ultimately determined that Washington was competent to stand trial, the trial court could reasonably and rationally rely on that behavior to conclude that Washington was not competent to represent himself. His inability to recognize and follow proper courtroom decorum or to identify and argue legitimate legal issues in his own defense, made it logical to conclude that Washington would not be able to properly focus on and understand the complicated DNA evidence that was critical to the State’s case. See State v. Marquardt, 2005 WI 157, ¶61, 286 Wis. 2d 204, 705 N.W.2d 878 (“the record must demonstrate an identifiable problem or disability that may prevent a defendant from making a meaningful defense”). ….

The trial court also properly exercised its discretion in denying Washington’s request for new counsel, as the central conflict between Washington and his lawyer concerned challenging the John Doe complaints, and that conflict would likely have been repeated with a new lawyer. (¶39). Further, the court properly concluded that granting the request for new counsel would have unnecessarily delayed the case given the likelihood the same conflicts would have ensued. (¶40).