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COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
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. 93-0166-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LAMONT CALDWELL,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
J. RICHARD LONG, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER CURIAM. Lamont Caldwell appeals from a
postconviction order denying his motion for a new trial. The issues are whether the trial court
erroneously exercised its discretion in admitting a photograph of Caldwell in
which his tattoo is visible, and whether trial counsel was ineffective for
failing to move to suppress evidence seized following an allegedly illegal
entry and search. We conclude that
trial counsel waived his objection to admission of the photograph, and because
the entry and search were legal, trial counsel's performance was not deficient. Therefore, we affirm.
A jury found Caldwell
guilty of possessing cocaine base with intent to deliver, contrary to
§§ 161.14(7)(a) and 161.41(1m)(cm)1, Stats.,
1991-92. The trial court denied
Caldwell's postconviction motion for a new trial based on the improper
admission of the photograph and for ineffective assistance of trial counsel.
Caldwell moved in limine
to preclude admission of any photographs depicting gang symbols. The prosecutor sought to introduce the
police photograph of Caldwell which shows his tattoo displaying gang
membership. The trial court granted the
motion in limine; however, it allowed introduction of the police photograph,
but precluded any reference to the tattoo as depicting gang membership.
Caldwell asserts that
his concession during opening statement, that he possessed crack cocaine,
obviated introduction of the photograph.
However, the prosecutor was required to prove Caldwell's identity and
was not advised of this concession until opening statement. At trial, the prosecutor proffered the
police photograph to accurately represent how Caldwell looked when
arrested. The trial court elicited an
objection, but trial counsel responded, "[n]o [objection], your
Honor."[1]
Caldwell contends that
the State introduced the photograph to suggest gang involvement, precluded by
§ 904.04(2), Stats. However, § 901.03(1)(a), Stats., requires a timely objection
raising specific grounds. Caldwell's
failure to object waives his right to challenge the ruling on appeal. See id.
Caldwell contends that
he received ineffective assistance of trial counsel who failed to move to
suppress the cocaine. To prevail,
Caldwell must demonstrate that trial counsel's performance was deficient and
that deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The warrant authorized
the search of "the above named or described person(s) or place(s) for the
above named or described person(s) or property" for evidence of
cocaine-related crimes. Caldwell was
not named in the warrant. Police
handcuffed Caldwell until he could be searched. While frisking Caldwell, the officer felt hard objects in
Caldwell's shirt pocket. The officer
then reached inside and retrieved crack cocaine.
At the postconviction hearing,
trial counsel explained that he did not move to suppress the cocaine because he
believed that Caldwell lacked standing to challenge the police's entry since he
had no legitimate expectation of privacy in the premises. See State v. Fillyaw,
104 Wis.2d 700, 713-16, 312 N.W.2d 795, 801-03 (1981), cert. denied, 455
U.S. 1026 (1982). Nothing in the record
indicates that Caldwell had a proprietary interest in these premises.
Caldwell asserts that
the entry was illegal because the warrant did not authorize a "no
knock" entry. However, exigent
circumstances may justify a "no
knock" entry. State v.
Williams, 168 Wis.2d 970, 982, 485 N.W.2d 42, 46 (1992), rev'd in
part on other grounds, State v. Stevens, 181 Wis.2d 410, 511
N.W.2d 591 (1994); see also id. at 985-86, 485 N.W.2d at
48 (presence of firearms and large quantities of illegal drugs may constitute
exigent circumstances justifying an unannounced entry). Here, the warrant affidavit was based on
cocaine being sold and guns being stored on the premises.
Caldwell contends that
the search was illegal because he was not named in the warrant. The warrant authorized the search of all
persons present at 1007 Harvey Street, including the front porch, curtilage and
vehicles. Although Caldwell was not
identified specifically, he was present on the premises and searching him was
authorized under State v. Jeter, 160 Wis.2d 333, 339-41, 466
N.W.2d 211, 214-15 (Ct. App.), cert. denied, 502 U.S. 873 (1991). Jeter held that the search of
a visitor on private premises identified in an "all persons present"
warrant is lawful. Id.
Caldwell questions
whether a pat-down search was reasonable to maintain the officer's safety
because Caldwell was handcuffed. We
conclude that the search was reasonable because the officer was in an alleged
drug house, occupied by a reputed gang member, who was thought to be
armed. Caldwell also asserts that only
a pat-down search for weapons was permissible under Terry v. Ohio,
392 U.S. 1 (1968), and that the officer's discovery of hard objects in
Caldwell's pocket could not have reasonably led to a further search for
weapons. We disagree.
The "all persons
present" search warrant and supporting affidavit premised on cocaine
possession, provided probable cause to search Caldwell for contraband. See State v. Guy, 172
Wis.2d 86, 100, 492 N.W.2d 311, 317 (1992), cert. denied, 113 S. Ct.
3020 (1993). As Detective John A.
Markley, a member of the Street Crimes and Drug Unit, patted Caldwell down, he
felt hard objects in Caldwell's shirt pocket, which his experience led him to
believe was cocaine. That realization,
under the foregoing circumstances, provided probable cause to believe that the
hard objects were contraband and permitted him to reach into Caldwell's pocket
and retrieve crack cocaine, under the plain-touch doctrine. State v. Buchanan, 178 Wis.2d
441, 449-50, 504 N.W.2d 400, 404 (Ct. App. 1993) (citing Minnesota v.
Dickerson, 113 S. Ct. 2130 (1993)).
We conclude that Caldwell did not receive ineffective assistance of
trial counsel for failing to file a suppression motion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.