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COURT OF APPEALS DECISION DATED AND RELEASED January 9, 1997 |
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. 96-2935-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLOS FACUNDO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Portage County:
JOHN V. FINN, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Carlos Facundo appeals from a judgment of conviction
resulting from a three-day jury trial.
Facundo was found guilty of possession of a controlled substance
(cocaine) with intent to deliver, in an amount of over 400 grams, a felony
contrary to §§ 161.16(2)(b) and 161.41(cm)5, Stats.
The state public
defender appointed Attorney Ruth Downs to represent Facundo. Attorney Downs has filed a no merit
appeal. Rule 809.32, Stats. In accordance with Anders v.
California, 386 U.S. 738 (1967), counsel, as well as the clerk of this
court, informed Facundo that he could reply to the no merit report, and he has
done so.[1]
Counsel's report
examines whether any merit exists to the following issues: (1) whether the evidence was sufficient
to sustain the verdict; (2) whether the case should have been dismissed
for prosecutorial misconduct; (3) whether the circuit court erred in
excluding from evidence a statement by the former district attorney;
(4) whether the circuit court erred in denying Facundo's motion to suppress
incriminating statements; (5) whether the circuit court correctly ruled
regarding a bailiff's statement—presumptively overheard by some jurors—that
Facundo had absconded on the third (and last) day of trial; (6) whether the
circuit court improperly denied motions for mistrial; and (7) whether the
sentence imposed was not a correct exercise of the circuit court's discretion.
Facundo also raises
several questions, chief among which is the disparate punishment which he
received compared to a police officer who tampered with the cocaine evidence.
We have closely examined
each question raised by counsel, and concur with counsel that none of these
issues has merit. We have carefully
examined each of Facundo's arguments and find them meritless. In addition, our independent review of the
record, mandated by Anders, reveals no other potential
issue.
With Facundo's written
consent, police searched a mobile home Facundo shared with another. Over 400 grams of cocaine were found. Facundo volunteered to police officers that
the cocaine was his.
This appeal presents an
unusual feature—after the evidence was recovered, it was tampered with by a
police officer, who took some of the cocaine for his own use. As reprehensible as this behavior was,
however, we conclude that it did not affect the result of this case, because
the cocaine was taken after the state crime lab had weighed and analyzed the
contraband.
We also conclude that
this action did not "enmesh" the government into the criminal
activity so as to make repugnant defendant's prosecution. State v. Gibas, 184 Wis.2d
355, 516 N.W.2d 785 (Ct. App. 1994).
This is because the police officer's action of taking the cocaine was
not part of any scheme to prejudice Facundo's case.
In addition, although we
acknowledge a discrepancy in sentencing the police officer and Facundo, we
conclude there is no merit to Facundo's argument based on the discrepancy. Facundo was found with over 400 grams of
cocaine. The police officer's misdeed involved
less than 100 grams. Facundo hid the
cocaine, the police officer voluntarily alerted the authorities to his
misdeed. These different fact
situations support the district attorney's exercise of prosecutorial discretion
in charging. See Harris v.
State, 78 Wis.2d 357, 254 N.W.2d 291 (1977).
A closer question is the
district attorney's behavior in concealing for nineteen days—during a period
when plea negotiations were still theoretically open—her knowledge that a
police officer had tampered with the evidence.
However, we conclude, as did the circuit court and appointed counsel,
that Facundo's case was not prejudiced by this lapse. This is especially so in that the district attorney did not
communicate with Facundo during this time, but sought advice on how to handle
the situation from the state's attorney general, among others.[2]
Because we find no merit
to any argument raised by counsel or appellant personally, and because we find
no merit to any independently discovered issue, we affirm.
By the Court.—Judgment
affirmed.