COURT OF APPEALS
DECISION
DATED AND FILED
December 9, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal Nos.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
De-Yul Thames,
Defendant-Appellant.
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APPEAL
from judgments and orders of the circuit court for Milwaukee County: joseph r.
wall and kevin e. martens,
Judges. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 BRENNAN, J. De-Yul Thames appeals from
judgments entered in two separate cases, wherein he was convicted of possession
of cocaine, possession of marijuana and bail jumping, contrary to Wis. Stat. §§ 961.41(3g)(c),
961.41(3g)(e) and 946.49(1)(b) (2005-06). He also appeals from orders entered in the
two cases denying his postconviction motions.
We consolidated the two cases for purposes of appeal and disposition.
¶2 Thames raises three claims on appeal: (1) the trial court erroneously
exercised its discretion at sentencing when it considered the charges he was
acquitted of; (2) his due process rights were violated when the State sold
his vehicle prior to trial; and (3) the trial court should have granted
his motion seeking to suppress evidence in the second case on the ground that
the police did not have reasonable suspicion to stop him. We reject each contention and affirm.
BACKGROUND
¶3 As noted, this appeal involves two separate cases, which were
consolidated for purposes of appeal. The
first case, Circuit Court Case No. 2005CF5739 stemmed from an incident in
October 2005. The second case, Circuit Court
Case No. 2006CF2606 arose from conduct that occurred in May 2006
while Thames was out on bail pending trial in
the first case. The facts pertinent to
each case are set forth below.
A. Case No. 2005CF5739.
¶4 On October 5, 2005 at about midnight, two City of Milwaukee
Police Officers observed a blue four-door Cadillac driving on West Greenfield
Avenue without its headlights on. The police
turned on the lights and siren of their marked squad car to initiate a stop of
the Cadillac. The Cadillac, however, did
not stop. Instead, it proceeded through
the city streets to the freeway on-ramp.
The squad car followed the Cadillac onto the freeway. The chase continued at approximately 50
m.p.h., during which the police observed the Cadillac driver throw out of his
window, two small baggies and one large bag containing a white powdery
substance. The large bag struck the hood
of the squad car. Shortly after tossing
the third bag out the window, the Cadillac exited the freeway and pulled over
for the police.
¶5 The driver, identified as Thames,
was uncooperative and had to be forcibly removed from the vehicle. The police then observed a white chunky
substance of suspected crack cocaine base on the front driver’s seat. They also found 139 small brown vials
consistent with what is typically used to package and deliver cocaine as well
as five cell phones.
¶6 With the assistance of the Milwaukee County Sheriff’s Office,
the route of the chase was retraced in an attempt to recover the bags, which
had been tossed out the window of the Cadillac.
The police were unable to recover the small baggies, but did locate the
larger one. The police were able to
recover much of the suspected cocaine from the roadway. The suspected cocaine from the roadway and
the front seat of the Cadillac were sent to the crime lab for testing. Both were confirmed to be cocaine and weighed
12.41 grams.
¶7 Thames was charged with
fleeing an officer and possession with intent to deliver a controlled
substance, cocaine (more than five but less than fifteen grams). This case was tried to a jury in June 2007
after which Thames was found not guilty on the
fleeing charge and not guilty on the possession with intent to deliver
charge. The jury did find Thames guilty of the lesser-included offense of
possession of a controlled substance.
B. Case No. 2006CF2606.
¶8 On May 15, 2006, Milwaukee
police received a telephone call that a person, who was suicidal, was missing
and thought to be driving a blue four-door automobile. The person was described as a forty-seven-year-old
white male. Milwaukee Police Officer
Paul Hinkley observed a vehicle matching the description given. Hinkley could not get a visual look at the
driver, but activated his squad car’s lights and siren in an attempt to stop
the vehicle. The blue four-door vehicle
did not stop for the squad car. Instead,
it continued driving on city streets until it reached the freeway on-ramp. After getting on the freeway, the vehicle
accelerated to speeds in excess of 65 m.p.h. with the squad car in
pursuit. While on the freeway, the
police observed the driver of the vehicle throwing clear plastic bags out the
window. The vehicle eventually
stopped. The driver was identified as Thames. He was
arrested and the vehicle was searched.
Two small bags of suspected marijuana were found under the driver’s
seat. The bags were sent to the crime
lab for testing and confirmed to be marijuana with a weight of 4.1 grams.
¶9 Thames was charged with
fleeing, possession of a controlled substance (marijuana) and felony bail
jumping. Thames
filed a motion seeking to suppress evidence seized by police on the ground that
the police did not have probable cause to conduct the initial stop of his
vehicle. The trial court denied the
motion. The case was tried to a jury in
June 2007 after which Thames was found not
guilty of fleeing, but guilty of possession of marijuana as well as felony bail
jumping.
C. Consolidated Sentencing on the Two Cases.
¶10 The two cases were consolidated for purposes of sentencing,
which was held on July 18, 2007.
The trial court sentenced Thames to one
year in prison and a $200 fine on the possession of cocaine conviction in the
2005 case. In the 2006 case, the trial
court sentenced Thames to six years on the
bail jumping charge, consisting of three years’ initial confinement followed by
three years’ extended supervision and a $100 fine. On the possession of marijuana charge, Thames was sentenced to six months in jail and a $100
fine.
¶11 Thames filed postconviction
motions in both cases, which were denied.
He now appeals.
DISCUSSION
A. Sentencing.
¶12 Thames claims the trial court
erroneously exercised its discretion at the sentencing hearing by considering
the charges on which he was acquitted.
The State responds that the trial court did not inappropriately consider
the acquitted charges at sentencing, but rather was considering those charges
as a part of its obligation “to assess the defendant’s character using all
available information.” See State v. Arredondo, 2004 WI App 7,
¶53, 269 Wis. 2d
369, 674 N.W.2d 647. We agree with the
State.
¶13 Our standard of review when reviewing a criminal sentencing is
whether or not the trial court erroneously exercised its discretion. See
State v. Plymesser,
172 Wis. 2d
583, 585-86 n.1, 493 N.W.2d 367 (1992).
There is a strong policy against an appellate court interfering with a
trial court’s sentencing determination, and an appellate court must presume
that the trial court acted reasonably. See State v. Thompson, 146 Wis. 2d 554, 565,
431 N.W.2d 716 (Ct. App. 1988).
¶14 The sentencing court must consider three primary factors: (1) the gravity of the offense, (2) the
character of the offender and (3) the need to protect the public. State v. Harris, 119 Wis. 2d 612,
623-24, 350 N.W.2d 633 (1984). The trial
court may also consider: the defendant’s
past record of criminal offenses; the defendant’s history of undesirable
behavior patterns; the defendant’s personality, character and social traits;
the presentence investigation results; the viciousness or aggravated nature of
the defendant’s crime; the degree of the defendant’s culpability; the
defendant’s demeanor at trial; the defendant’s age, educational background and
employment record; the defendant’s remorse, repentance or cooperativeness; the
defendant’s rehabilitative needs; the rehabilitative needs of the victim; the
needs and rights of the public; and, the length of the defendant’s pretrial
detention. State v. Jones, 151 Wis. 2d 488, 495,
444 N.W.2d 760 (Ct. App. 1989).
¶15 Here, Thames complains that by
considering the fleeing charges and the possession of cocaine with intent to
deliver charge, which the jury acquitted him of, the trial court replaced the
jury’s verdict with its own. He argues
that such constitutes an erroneous exercise of sentencing discretion. We are not persuaded.
¶16 The law in this state clearly permits the sentencing court to
consider “uncharged and unproven offenses and facts related to offenses for
which the defendant has been acquitted.”
State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote
omitted). Considering this information
allows sentencing courts “to acquire the ‘full knowledge of the character and
behavior pattern of the convicted defendant before imposing sentence.’” Id. (citation
omitted). Just because a defendant is
acquitted of some charges does not mean he is innocent of them. It merely proves the existence of reasonable
doubt. United
States v. Watts, 519 U.S. 148,
155 (1997). So the question is
whether the facts surrounding the acquitted charges are sufficiently reliable
to justify the trial court’s reliance on them and whether they are relevant to
the defendant’s character.
¶17 Here, the trial court carefully considered the acquitted facts
in a very detailed and thoughtful sentencing analysis. The court commented that it had heard the
testimony in both jury trials and therefore had a unique opportunity to weigh
the strength of the acquitted facts. The
court noted that it chose to follow the higher federal case threshold, that of
preponderance of the evidence, when weighing the admissibility and relevance of
the acquitted facts. Using this analysis,
the trial court determined that the acquitted facts were reliable and relevant
to the issues of the defendant’s character and to his pattern of behavior.
¶18 The trial court found Thames’s pattern of behavior in these two
cases of fleeing police, driving to a nearby freeway and throwing baggies of
drugs out the windows of his car as he fled, was designed by Thames
to escape serious criminal charges. The
court commented that it found Thames to be
very smart, charismatic, anti-social and dangerous. This consideration did not punish him for
crimes for which he was acquitted, but it presented the total picture of Thames’s character which the trial court properly
considered at sentencing. See Arredondo, 269
Wis. 2d
369, ¶53. Thus, the trial court did not
erroneously exercise its sentencing discretion by referring to and considering
the information relative to the acquitted charges.
B. Sale of Thames’s Vehicle.
¶19 Thames next claims the State
violated his due process rights by selling his vehicle. He argues that the vehicle constituted
exculpatory evidence because the windows in the vehicle were inoperable and
thus would refute the police testimony that he threw drugs from the
window. He also asserts that he wanted
to have the car’s front seat tested for cocaine residue. The State responds that Thames failed to
satisfy the pertinent legal standards requiring the State to preserve
exculpatory evidence and that Thames was not
prejudiced by the State’s failure to preserve the vehicle as he presented
comparable evidence to show the windows did not work through the testimony of a
car mechanic who had recently examined the car.
We agree with the State.
¶20 Thames can establish a due
process violation based on an allegation that the State failed to preserve
exculpatory evidence, in one of two ways.
First, he may show that his vehicle was exculpatory, material evidence,
that the State knew it was exculpatory and
that he cannot present that exculpatory evidence through reasonably available
comparable evidence. See State v. Greenwold, 189 Wis. 2d 59, 67, 525
N.W.2d 294 (Ct. App. 1994).
Second, he may show that the vehicle was “potentially useful” to
presenting his defense and the State sold it in “bad faith.” Id. (quoting
Arizona
v. Youngblood, 488 U.S.
51, 57-58 (1988)).
¶21 Whether a due process violation has occurred here presents a
question of constitutional fact, which we review de novo. See Greenwold, 181 Wis. 2d at 66. Thames does
not allege that the State acted in bad faith in selling his vehicle. Thus, we address only whether he has
satisfied the first test enunciated above.
¶22 Thames contends the vehicle
was material exculpatory evidence because it would have supported his
contention that he did not throw drugs from the window while driving as the
windows were not functioning. We reject
his contention for two reasons. First,
he presented “reasonably comparable evidence” to the jury. That is, a mechanic who testified on behalf
of the defense told the jury that when he examined the car two weeks prior to
the incident in this case, the vehicle’s windows were not functioning. Although two weeks before the incident may
not be as compelling as at arrest and impounding of the vehicle, it is
reasonably comparable. Based on this, Thames could not satisfy the standard to establish a due
process violation occurred.
¶23 Second, it is arguable as to whether having the vehicle to show
to the jury would have even been exculpatory.
One of the arresting police officers testified at trial that the
driver’s window was open a half-inch when they stopped Thames and a videotape
taken of the vehicle while at an impound lot revealed the same thing. Thus, the exculpatory value of the vehicle is
highly speculative and insufficient to show a due process violation
occurred. See State v. Tarwid, 147 Wis. 2d 95, 105, 433 N.W.2d 255 (Ct.
App. 1988).
¶24 We conclude that Thames failed
to establish any due process violation related to the State’s sale of the
vehicle.
C. Suppression Motion.
¶25 Thames’s final claim is that
the trial court should have suppressed the evidence obtained in the 2006 case
on the ground that they lacked reasonable suspicion to conduct the initial
stop. The State responds that the stop
was constitutionally permissible pursuant to the community caretaker
exception. We agree.
¶26 Both the Fourth Amendment of the United States Constitution and
article I, section 11 of the Wisconsin Constitution guarantee to all citizens
the right to be free from unreasonable searches and seizures. Because an investigatory stop is a “seizure”
within the meaning of the Constitution, a law enforcement officer, before
stopping an individual, must reasonably suspect, in light of his or her
training and experience, that the individual is, or has been, involved in
criminal activity. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968); State v. King, 175 Wis. 2d 146, 150,
499 N.W.2d 190 (Ct. App. 1993); Wis.
Stat. § 968.24.
¶27 For a stop to be constitutionally valid, the police officer’s
suspicion must be based on “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the
intrusion” on a citizen’s liberty. Terry,
392 U.S.
at 21. It is a common-sense test; what
is reasonable in a given situation depends upon the totality of the
circumstances. State v. Anderson, 155 Wis. 2d 77, 83-84,
454 N.W.2d 763 (1990).
¶28 A police officer does not need reasonable suspicion to conduct
a stop if he or she is operating pursuant to the community caretaker
exception. Under this doctrine, a court
must first inquire whether, at the time of the conduct in question, the police officer
was engaged in a bona fide community caretaker activity, which is defined as an
action that is “totally divorced from the detection, investigation or
acquisition of evidence relating to the violation of a criminal statute.” State v. Ellenbecker, 159 Wis. 2d 91, 96, 464
N.W.2d 427 (Ct. App. 1990).
The second inquiry involves assessing whether “‘public need and interest
outweigh the intrusion upon the privacy of the individual.’” State v. Kramer, 2008 WI App 62, ¶10,
___ Wis. 2d ___, 750 N.W.2d 941 (citation omitted), petition for review granted, 2008 WI
115, ___ Wis. 2d ___, 754 N.W.2d 849 (June 11, 2008).
¶29 In reviewing the denial of a motion to suppress, we will uphold
the trial court’s findings of historical fact unless they are clearly
erroneous. State v. Sykes, 2005 WI
48, ¶12, 279 Wis. 2d
742, 695 N.W.2d 277. However, whether a
stop passes constitutional muster is a question of law which we review
independently. State v. Richardson,
156 Wis. 2d
128, 137-38, 456 N.W.2d 830 (1990).
¶30 Thames does not argue that the
community caretaker exception should not apply given the circumstances
presented to the police officers.
Clearly, a report of a person who is suicidal driving a vehicle triggers
the responsibility of the police to exercise their community caretaking function. As noted by the trial court:
They were attempting to stop what they believed was a
suicidal person and to obviously prevent a suicide of the person and also I’m
sure in their minds, and this is common sense so I don’t need to have a factual
record concerning … a person who is suicidal in a car.
What follows from that is that
person may not care who he takes with him or she takes with [her]. The car being potentially the avenue for
suicide and may be potential for obviously turning in front of traffic, cause a
head-on collision, killing a couple people not just the suicidal person or
going off an overpass and maybe landing on somebody. Those type of things have to always be in our
mind when we look at suicide by car.
….
Well, first of all you prevent
a person, potentially prevent a person from killing themselves. That serves the public good.
Second of all, you may prevent
a person from killing themselves and maybe taking others with them through the
use of a vehicle.
¶31 Here, Thames contends that the
community caretaker exception should not apply because the “suicidal” person
was white and older, whereas he was black and younger. The record reflects that the police heard the
dispatch and observed a car that matched the description of that being driven
by the suicidal person. The trial court
found, based on the police testimony, that they could not see whether the
person driving was white or black. This
finding is not clearly erroneous, and accordingly, Thames’s
argument on this basis is without merit.
¶32 Once the police pulled behind Thames
and turned on their vehicle’s lights and siren, he failed to pull over. Then the police saw him throwing bags out the
window. These additional facts created reasonable
suspicion to conduct a Terry stop. See State v. Young, 2006 WI 98,
¶¶70-71, 294 Wis. 2d 1, 717 N.W.2d 729 (even if the officer did not have
reasonable suspicion when he made the show of authority, the officer had
reasonable suspicion after suspect disregarded the officer’s order). We conclude that the police officers’ initial
pursuit of Thames was justified under the
community caretaker exception. Moreover,
Thames’s failure to pull over for the police,
his tossing of bags from his vehicle and his flight overwhelmingly demonstrates
reasonable suspicion in this case. Based
on our review, we conclude that the police officers’ initial stop of Thames in the 2006 case was constitutionally
permissible. Therefore, the trial court
did not err in denying Thames’s motion seeking
to suppress evidence on that basis.
¶33 Based on the foregoing, we reject each of Thames’s
claims of error and affirm.
By the Court.—Judgments and orders
affirmed.
Not
recommended for publication in the official reports.