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COURT OF APPEALS DECISION DATED AND RELEASED December 11, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3297-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PAUL L. BATHE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Paul L. Bathe appeals from a judgment of conviction of
attempted first-degree intentional homicide, armed robbery and armed burglary,
and from an order denying his postconviction motion. He argues that a weapon seized from his automobile should have
been suppressed and that his sentence is unduly harsh. We affirm the judgment and the order.
The convictions arise
out of entry of the home of Ron Grebe, a drug dealer, on November 11,
1993. Kelly Litz entered Grebe's house
in a feigned drug deal and left the door unlocked so Bathe could enter. During the course of the attempted robbery,
Grebe was shot in the face by a small caliber handgun equipped with a
silencer. Joshua Curry acted as a
lookout while Litz and Bathe attempted to rob Grebe.
After being told that
the police were looking for him, Litz turned himself into the police on
November 12, 1993. Curry and Bathe were
charged and arrested that same day. In
a police interview conducted on April 24, 1994, Curry described the homemade
silencer and indicated that the material used to make it would still be found
at Bathe's residence. Curry also
related that Bathe had intended to hide the gun at the home of Chris Lucchetti,
either in the house, the garage or a vehicle at the residence. Litz was interviewed on April 25, 1994. Litz informed the police that he suggested
to Bathe to hide the gun at Lucchetti's residence.
Based on the statements
of Curry and Litz, police obtained a search warrant for cars registered to
Bathe and located at Lucchetti's house.
A .22 caliber semi-automatic weapon and material for a homemade silencer
were seized from the trunk of a car registered to Bathe. Bathe's motion to suppress this evidence was
denied. Bathe asserts that this
physical evidence was the only thing directly linking him to the crime other
than the testimony of his co-conspirators.
Bathe argues that the
affidavit supporting the application for the search warrant was misleading and
deliberately withheld vital information necessary to an assessment of probable
cause for a search.[1] He claims that the police did not inform the
issuing court commissioner that while in custody Curry and Litz made numerous
contradictory statements denying knowledge about the weapon or its whereabouts
and that the April statements relied upon by the police were only part of their
progressive revelations about their involvement in the crime. He also contends that the court commissioner
should have been informed that on April 22, 1993, just four days before the
application before it, another court denied a search warrant because of
insufficient information. He
characterizes the omission of such information as a reckless disregard of the
truth.
Franks v. Delaware, 438
U.S. 154, 155-56 (1978), recognizes that a search warrant may be challenged if
a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit and the
allegedly false statement is necessary to the finding of probable cause. The Franks rule was extended
in State v. Mann, 123 Wis.2d 375, 388, 367 N.W.2d 209, 214-15 (1985),
to include omissions from a warrant affidavit if the omission is the equivalent
of a deliberate falsehood or reckless disregard for the truth. We independently review the application of
the Franks rule. Mann,
123 Wis.2d at 384, 367 N.W.2d at 212-13.
The Franks
rule applies to "specific and limited material evidentiary facts omitted
from a search warrant affidavit." Mann,
123 Wis.2d at 386, 367 N.W.2d at 213.
The omitted facts must be undisputed, capable of single meanings and
critical to a probable cause determination to be viewed as the reckless
disregard for the truth required by Franks. See Mann, 123 Wis.2d at
388, 367 N.W.2d at 214-15. The court
must determine, when the omitted facts are inserted into the search warrant,
whether there remains sufficient probable cause for the search. Id. We
are not persuaded that the affidavit in support of the application for a search
warrant was required to supply the exculpatory statements of suspects. Probable cause is determined by applying the
totality of the circumstances test.
"The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the
affidavit before him, including the `veracity' and `basis of knowledge' of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place." Illinois v. Gates,
462 U.S. 213, 238 (1983). The denial of
knowledge of the location of evidence sought adds nothing to a determination of
whether probable cause exists that the evidence is located where the police
want to search. In this respect, the
denial of information is not an evidentiary fact.
Moreover, probable cause
is concerned with probabilities and not hard certainties. State v. Anderson, 138 Wis.2d
451, 469, 406 N.W.2d 398, 406 (1987).
The standard invokes the practical considerations of everyday life on
which reasonable and prudent men and women, not legal technicians, act. State v. Ehnert, 160 Wis.2d
464, 469, 466 N.W.2d 237, 238 (Ct. App. 1991).
Here, the court was
presented with statements made, albeit months after the crime, that further
implicated Curry and Litz. Credibility
is established by the fact that the statement is against penal interest. Anderson, 138 Wis.2d at 470,
406 N.W.2d at 407. Common sense
dictates that a criminal suspect will at first deny involvement and only
progressively release implicating information.
The earlier denials of Curry and Litz do not render the subsequent
statements incredible. See United
States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied,
491 U.S. 908 (1989) ("credibility was not undercut merely because
[accomplice] made predictable denials until the police could produce evidence
linking him to the robbery").
Thus, even if the past statements were added to the search warrant
affidavit, it still establishes probable cause for issuance of the search
warrant.
Bathe was sentenced to
the maximum allowable for each conviction, to be served consecutively. The total sentence is sixty-five years
imprisonment. He contends that the
trial court did not state adequate justification for imposing the maximum
sentence. He also claims that it was
error to proceed to sentencing on the armed burglary conviction within
twenty-four hours of the verdict for the purpose of alleviating jail
overcrowding.
Sentencing is a
discretionary act and this court presumes that the sentencing court acted
reasonably. State v. Scherreiks,
153 Wis.2d 510, 517, 451 N.W.2d 759, 762 (Ct. App. 1989). This court will honor the strong policy
against interfering with the discretion of the sentencing court unless no
reasonable basis exists for its determination.
See id.
We recognize that a
basic requirement of sentencing is that the sentencing court set forth on the
record the rationale for the sentence.
An obvious reason for this requirement is to facilitate appellate
review; an equally important reason is to explain to the defendant why his or
her behavior and background compel the sentence pronounced by the court. In McCleary v. State, 49
Wis.2d 263, 280, 182 N.W.2d 512, 521 (1971), the supreme court recognized that
one of the principal obligations of a judge is to explain the reasons for a
decision so that the public and the defendant can understand the decision.
We acknowledge that the
trial court's comments when it sentenced Bathe the day after trial on the armed
burglary conviction were somewhat abbreviated.[2] However, the court did indicate that the gravity
of the offense outweighed all other sentencing factors such that the maximum
penalty was appropriate. In addition,
it is appropriate to view the trial court's comments at both sentencing
proceedings to determine if, as a whole, the sentence was a proper exercise of
discretion. We do this because when the
second sentencing proceeding convened after the preparation of the presentence
investigation report, the trial court possessed the power to modify the earlier
imposed sentence.
We do not join in Bathe's
opinion that the sentencing on the other counts was no more thoughtful. The trial court discussed the relevant
factors of the gravity of the offense, the character of the offender and the
need for protecting the public. State
v. Harris, 119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). It also referenced several others factors,
such as Bathe's prior record, education, employment record and culpability in
the crime. The weight given to each
factor is left to the sentencing court's broad discretion. State v. Thompson, 172 Wis.2d
257, 264, 493 N.W.2d 729, 732 (Ct. App. 1992).
Bathe argues that the
trial court improperly considered his failure to admit guilt. In Scales v. State, 64 Wis.2d
485, 497, 219 N.W.2d 286, 293 (1974), the court held that the defendant's
refusal to admit his guilt alone cannot be used to justify incarceration rather
than probation. However, "[t]here
is a distinction ... between the evil which Scales seeks to avoid
and the trial court's obligation to consider factors such as the defendant's
demeanor, his need for rehabilitation, and the extent to which the public might
be endangered by his being at large. A
defendant's attitude toward the crime may well be relevant in considering these
things." State v. Baldwin,
101 Wis.2d 441, 459, 304 N.W.2d 742, 751-52 (1981) (citation omitted). Here, the trial court's comment went only to
Bathe's apparent lack of remorse. We
conclude that the sentence was the result of the proper exercise of
discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.