COURT OF APPEALS DECISION DATED AND FILED May 19, 2010 David
R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Timothy C. Thiel,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Timothy C. Thiel appeals pro se from a judgment convicting him of one count each of possession of tetrahydrocannabinol (THC), second or greater offense, and manufacture/delivery of THC. None of his appellate arguments are persuasive. We affirm.[1]
¶2 According to trial and hearing testimony, City of
¶3 Thiel claimed the seized materials were “law-abiding” wildflowers, cilantro and sprouting coriander seeds and that he was wrongly charged because the field test was inconclusive for THC. A jury convicted Thiel of possession and manufacture of THC. Thiel then filed a “mistrial motion to dismiss” prompted by the court’s refusal at trial to secure as witnesses the landlady and the police officer who drafted the criminal complaint, but also revisiting all of his trial issues. The court orally denied the motion at sentencing. Thiel appeals. We will supply other facts as needed to address his appellate issues.
¶4 Thiel first contends the stop was unreasonable and that the trial court erred in denying his motion to suppress the 167 plants, plus seeds sprouting in damp paper toweling, seized in the search of the garbage bags he carried.
¶5 To effect a valid investigatory stop, a law enforcement
officer must reasonably suspect in light of his or her experience that criminal
activity is afoot. Terry v. Ohio, 392
¶6 Viglietti testified that he was in uniform in a marked squad
when he observed a person matching Thiel’s description on a bicycle carrying
bags, that he had been advised to watch for such a person, that police had been
informed that the person was growing marijuana in his apartment, and that, ignoring
his order to pull over, Thiel instead looked back and pedaled faster. When forced to stop, Thiel became agitated,
screamed and appeared as if he intended to flee. Viglietti arrested him for obstructing. Thiel contended he did not resist but
“stopped politely on the sidewalk.” This
credibility determination was for the trial court and is not clearly erroneous.
¶7 The trial court found that the landlady was not an agent of the State, that her entry into the apartment was lawful and the evidence found on Thiel was properly seized. These findings are not clearly erroneous. The court also opined that, although Viglietti opted for a Terry stop, he had probable cause to arrest Thiel on a drug offense. We reject Thiel’s argument that Viglietti did not have reasonable suspicion to conduct an investigatory stop. We affirm the denial of Thiel’s motion to suppress.
¶8 Thiel next contends there was insufficient probable cause to
bind him over for trial. The right to a
preliminary examination is solely a statutory right. State v. Dunn, 121
¶9 We are satisfied that probable cause existed to bind Thiel
over. We need not examine the matter any
further, however. A conviction resulting
from a fair, error-free trial effectively cures any error at the preliminary
hearing. State v. Webb, 160
¶10 Thiel also contends that his statutory and constitutional rights
to a speedy trial were violated, concentrating on the statutory aspect. Under Wis.
Stat. § 971.10(2)(a), the trial of a defendant charged with a
felony “shall commence within 90 days from the date trial is demanded.” The demand may not be made until after the
information or indictment is filed.
¶11 Here, the information was filed on July 16, 2008; Thiel filed
his speedy trial motion on July 18 and was tried approximately seven months
later on February 24, 2009. Nonetheless,
this argument fails. Thiel’s competency
was at issue from the outset. On
September 10, 2008, he was found incompetent and was committed until December
11 for treatment to competency. The
trial court concluded that the speedy trial demand’s time limits were tolled
until December 11. Other delays were
occasioned by a series of attorneys either quitting or being fired and Thiel’s
choice to represent himself. The months
of competence-related delays were intrinsic to the case and the counsel-related
delays were occasioned by Thiel himself.
Neither such delay is counted. State
v. Urdahl, 2005 WI App 191, ¶26, 286
¶12 Further, the delays generated by the competence examinations and treatment could be construed as continuances because the court attempted to maintain the trial date while addressing Thiel’s own counsels’ concerns as to his competence. See Wis. Stat. § 971.10(3)(a). Ultimately, however, we agree that the ninety-day time limit was tolled until Thiel was declared competent on December 11. As his trial was held seventy-five days later, there was no statutory speedy trial violation.
¶13 The constitutional right to a speedy trial was outlined in Barker
v. Wingo, 407
¶14 We see no constitutional violation. Thiel merely alleges that his constitutional
right to a speedy trial was violated but makes no argument in that regard. For the reasons discussed above, we conclude
the time limits were tolled such that no “presumptively prejudicial” delay
resulted. Accordingly, we need not
inquire into the other Barker factors. See Borhegyi, 222
¶15 Thiel next claims he was denied his constitutional right to confront his accusers because the trial court purposefully failed to assist him in compelling the attendance of his witnesses. See Wis. Stat. § 885.10. We disagree.
¶16 To secure the trial court’s assistance, an indigent defendant
must make “a plausible showing that the proposed witnesses are both material
and favorable to his or her defense, i.e.,
necessary.”
¶17 Thiel prepared subpoenas for fourteen witnesses, among them his landlady; the person who reported the fire alarm to the landlady; Joe Piekarski, who accompanied the landlady into Thiel’s apartment; the landlady’s handyman; a maintenance person; the crime lab chemist; the assistant district attorney who prepared the search warrant; the police officer who filed the complaint; five other police officers; and a person Thiel said would testify as an expert about smoking products that look like marijuana but contain no THC.
¶18 The court ordered that Piekarski be produced. Piekarski’s testimony not only was unfavorable to Thiel’s defense, it also pertained to items he saw in Thiel’s apartment, evidence the court had suppressed.[3] Thiel was able to question the chemist and the five police officers with personal knowledge of the case because the State produced them. The testimony of the other proposed witnesses connected to Thiel’s apartment—the landlady; the person who reported the alarm; and the landlady’s employees—would have involved the suppressed evidence found there. The officer who drafted the complaint could not have testified because he based the complaint on Reineke’s report, matters of which the drafting officer did not have personal knowledge. See Wis. Stat. § 906.02. Accordingly, their testimony was neither relevant nor necessary.
¶19 The court also opined that Wis.
Stat. § 885.10 did not oblige it to help procure a
non-transactional witness. Still, the
court placed a phone call in open court to Thiel’s proposed “expert.” The person who answered stated that the
person Thiel sought had died. Even
assuming Thiel made a showing of a particularized need, the trial court has the
discretion, not an unequivocal duty, to help a defendant procure an
expert.
¶20 We also reject Thiel’s claim that there was insufficient
evidence to support his conviction because the State failed to prove beyond a
reasonable doubt that the seized plants contained THC. The standard for reviewing the sufficiency of
the evidence to support a conviction is whether, after viewing the evidence in
the light most favorable to the State and the conviction, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Poellinger, 153
¶21 To convict Thiel of possession of THC required the State to
establish beyond a reasonable doubt that: (1) Thiel possessed—knowingly had
physical control of—a substance; (2) the substance contained THC; and (3) Thiel
knew or believed the substance was THC. See
¶22 Testimony at trial refuted Thiel’s unsworn claim that the plants were herbs and wildflowers. Three police officers testified that, from their experience, they recognized the plants in the bags as young marijuana plants. One officer testified that the field test is only “presumptive” and commonly is inconclusive, which is why the crime lab test results are used in court to prove the presence of THC. The drug identification chemist testified that all fifty-five of the plants tested at the State Crime Lab were positive for THC. She also testified that a field test may be inconclusive for the presence of THC in small marijuana plants because the concentration is less than in mature plants. The jury inferred that Thiel knew he was growing marijuana plants containing THC. The evidence supporting that inference was not incredible as a matter of law.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] We commend Assistant Attorney General Michael Losse for his clear rendering of the procedural history and the issues. His brief was of immeasurable assistance to this court.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[3] The trial court had granted Thiel’s motion to suppress evidence discovered pursuant to a warrantless post-arrest “protective sweep” of Thiel’s apartment. Four officers conducted the sweep, assertedly to verify that no one else was inside destroying evidence. They seized over two dozen marijuana “root systems,” potting soil, baggies and a digital scale. The court concluded that some of the officers could have secured the apartment while the others got a warrant.