On Point

State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether an effort at dissuading a child witness which was directed at the child’s mother satisfies the elements of attempted intimidation of a witness, § 940.42.

Holding:

¶10      To prove attempted intimidation of Tamika, the State was required to prove that: (1) Tamika was a witness; (2) Moore attempted to dissuade her from attending a proceeding or giving testimony at a proceeding authorized by law; and (3) Moore acted knowingly and maliciously. See Wis JI—Criminal 1292 (2000). The pattern jury instruction further suggests a definition of attempt:

Attempt requires that the defendant intended to (prevent) (dissuade) (name of victim) from attending or giving testimony and did acts which indicated unequivocally that the defendant had that intent and would have (prevented) (dissuaded) (name of victim) from attending or giving testimony except for the intervention of another person or some other extraneous factor.

Id.   The instruction defines “dissuade” as “‘to advise against’ or ‘to turn from by persuasion.’” Id. (quoting Webster’s New Collegiate Dictionary).

…

¶13      Underlying Moore ’s argument is his assumption that the State had to prove that Tamika was shown, or apprised of, the letters before Moore could be found guilty. ^[8] Under the circumstances of this case, we disagree. Regardless of whether the letters were addressed to Tamika or whether she was aware of their contents, it is obvious that Moore attempted to dissuade Tamika through her mother, Theresa. Theresa, as the parent of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with her child, and to influence whether Tamika cooperated with the court proceedings. We conclude that there was sufficient evidence to convict Moore of attempting to intimidate Tamika.

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 ^[8]   Moore also assumes that the reason he was charged with attempting to dissuade, as opposed to dissuading, Tamika was that Tamika ultimately did testify. The State does not appear to quarrel with this assumption. We will likewise assume for purposes of this opinion that because Tamika chose to testify, Moore was appropriately charged with attempting to dissuade her from testifying.

State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether separate counts are supported for attempted intimidation of the same witness, representing each separate letter sent by the defendant to the witness imploring her not to testify against him.

Holding: Multiple counts are permissible, at least where each count is based on distinct facts, because: The statutory language does not rebut the presumption that the legislature intended multiple punishments, ¶21; policy concerns (attempts to intimidate a witness directly assault judicial integrity) support “charging a person wit a separate count for each letter sent, and/or each other act performed, for the purpose of attempting to ‘dissuade’ any witness from attending or giving testimony at a court proceeding or trial,” ¶25; the nature of the proscribed conduct is such that telescoping all acts into one count “would remove all incentive to discontinue intimidating acts once an actor had completed one such act,” ¶26.

A not uncommon situation, in Milwaukee anyway: the defendant contacts the complainant and asks her not to testify. In this instance, he beseeched her in seven different letters. (There happened to be two different witnesses, mother and daughter, and Moore wants them both not to testify, so it’s 7 letters x 2). His trust was apparently misplaced and rather than refuse to testify, the recipient took all the letters to the authorities, so that Moore ended up with 14 counts of attempted intimidation. (As the court notes, “intimidation” somewhat overstates the elemental showing: attempts at “dissuasion” suffice, ¶1 n. 2.) On the other hand … each series of letters represents a single effort aimed at a unitary goal, namely dissuading a witness from testifying. Should multiple such letters be regarded as a single, continuing offense or, as the court of appeals holds, multiple discrete crimes? What if the witness had indeed been dissuaded? Would there then be 6 attempts and 1 completed witness-intimidation? How would you identify which was which?

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding¹:

¶23      Searcy claims the only evidence linking him to the Hoffman burglary was his fingerprint on the window screen in the Hoffmans’ bedroom. He argues that the mere presence of his fingerprint, standing alone, is insufficient to connect him to the burglary. Because there is other evidence supporting Searcy’s conviction, we need not decide whether fingerprint evidence, standing alone, is sufficient to sustain a burglary conviction. See State v. Scott, 2000 WI App 51, ¶16, 234 Wis. 2d 129, 608 N.W.2d 753 (refusing to address defendant’s argument that fingerprint evidence standing alone was insufficient to survive a motion to dismiss because the State presented other evidence as well).…

¶25      … The jury could have reasonably concluded from the presence of the fingerprint evidence when combined with the damage to the doors and window screen and the fact that the window screen could only be opened from the inside that Searcy had burglarized the Hoffman home.

Issue/Holding²:

¶29   From this evidence the jury could have reasonably come to the conclusion that Searcy was responsible for the DuRocher burglary. The stolen items were found in a home where he was staying only ten days after the burglary occurred. Additionally, no one claimed ownership of the items and the items were found tied up in a pillowcase and hidden in a closet. The jury could have reasonably drawn the inference that Searcy had stolen the items and tried to conceal them in his cousin’s closet.¶30   Finally, the jury could have relied on the similarities between the two burglaries to convict Searcy. In both cases, the front door had apparently been kicked in—there was damage to the doors and their frames, and footprints on the doors themselves. Further, in both burglaries, pillowcases were taken off of beds, most likely to transport stolen property. From the similarities, the jury could have concluded that the same person committed both burglaries and the burglar’s modus operandi was, in part, to kick in the door and place stolen items in a pillowcase from the residence. Thus, the consistencies between both burglaries bolster our conclusion that the evidence presented at trial was sufficient to convict Searcy of both the Hoffman and DuRocher burglaries.

State v. Anna Annina, 2006 WI App 202
For Van Hout: Robert R. Henak

Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct, an event separate and apart from any resistance to the invalid warrant.The court says, ¶18, that it will leave for another day the question of reconciling State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (“a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal”) with § 946.41(1). See also U.S. v. Sledge, 8^th Cir No. 06-1480, 9/7/06 (“resistance to an illegal arrest can furnish grounds for a second, legitimate arrest”). Though it didn’t come up in Annina, it follows from its result (and other authority such as Sledge) that the lawful arrest severs any connection between seizure of evidence and the underlying illegal police conduct, so that suppression isn’t available.

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: By fleeing from a police command to stop, the defendant provided probable cause to arrest for obstructing, and the officer therefore was acting with “lawful authority” under § 946.41(1), ¶¶77-78.

Also see U.S. v. Muhammad, 2nd Cir No. 05-4923-cr, 9/7/06; and U.S. v. Swindle, 407 F.3d 562 (2nd Cir 2005) (mere order to stop doesn’t constitute seizure, therefore, anunreasonable order to stop does not violate the 4th amendment, and a stop may be based on events transpiring afterward, such as flight).

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Refusal to obey an officer’s command to halt reinforces extant reasonable suspicion to stop the individual:

¶73      Officer Alfredson testified that after he ordered Young to return to the car the first time, Young “turned and started walking away.” We acknowledge that people may have the right to disregard the police and walk away without giving rise to reasonable suspicion. …

¶74      Plainly, however, a person who disregards a police officer’s order assumes the risk that the officer cannot establish that he had reasonable suspicion for an investigatory stop. The person who believes he is exercising his Fourth Amendment rights by disregarding the officer may be subjecting himself to criminal prosecution if the officer has reasonable suspicion to make a stop. ^[20]

¶75      Young’s actions were not consistent with disregarding the police presence and going about his business. Young had remained in the car for at least five to 10 minutes. The instant Alfredson illuminated Young’s car with the spotlight, Young altered his course of conduct and got out of the car. It is improbable that the timing of Alfredson’s appearance and Young’s abrupt departure, with no word to the officer, were mere coincidence. Young’s action smacked of evasion and flight, which can properly give rise to reasonable suspicion when viewed in the totality of the circumstances. See Wardlow, 528 U.S. at 125. Thus, we conclude that Young’s evasive action, set against the above-described facts, reinforced reasonable suspicion.

Read too broadly, the meaning would be: you have the right to walk away from a “consensual” encounter – remember, the court all but says the cop didn’t seize any one at first – but if you do it’ll be regarded as “evasion and flight” and for that reason aloneground for a stop. That can’t be right, and it isn’t (though future courts may be tempted to say it is.) The court previously held that the cop already had reasonable suspicion, ¶64, and even though that holding seems like more than a stretch on the facts, it does limit this discussion on “flight and evasion.” Note the crucial qualifier in the last quoted sentence: “reinforced reasonable suspicion.” Reinforced, not created. In this sense the holding is a somewhat mundane exemplar of the idea that “police avoidance” behavior is a factor in reasonable suspicion calculus but alone isn’t enough for reasonable suspicion, e.g., State v. Alisha M. Olson, 2001 WI App 284, ¶8. One other, factual detail: Young got out of the car, the cop ordered him back in, Young began to walk away, the cop issued a second order and then Young started running, ¶11. Once he began running his behavior could be characterized as “headlong flight,” which under Wardlow is an important factor supporting reasonable suspicion. And yet the court leaves no doubt that Young’s merewalking away, before the second order was enough:

¶76      Because Alfredson had reasonable suspicion before he issued his second command for Young to return to the car, we conclude Alfredson was acting with lawful authority when he issued this second order. Thus, there is sufficient evidence in the record for a jury to have convicted Young of obstruction.

So the court indeed is serious when it says that exercising your right to walk away from a consensual encounter exposes you to obstructing conviction.

State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child, ¶¶26-32.

Different issue but similar analysis in the recently-published State v. Ray A. Hemphill, 2006 WI App 185, to the effect that because element of “recklessness” in § 948.03 doesn’t implicate criminal intent, defense of mistake not available, nor need defendant be subjectively aware of risks of conduct. Note, though, that “recklessly” has its own narrow definition under § 948.03(1), and that other crimes involving reckless conduct will contain a subjective component by dint of § 939.24(1)—a point made by Williams, ¶26.