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COURT OF APPEALS DECISION DATED AND RELEASED July 24, 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. 95-1200-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FREDERICK F. HAFEMANN,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Walworth County:
MICHAEL S. GIBBS, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Frederick F. Hafemann appeals from judgments
convicting him of two counts of attempted kidnapping, attempted interference
with custody of a child and violating a restraining order, all while armed with
a dangerous weapon, and carrying a concealed weapon. On appeal, Hafemann argues that the trial court should have
suppressed evidence seized from his vehicle, that there was insufficient
evidence that he attempted to kidnap his former wife and child or that he
attempted to take the child from his former wife without her consent, and that
a new trial is necessary because a juror failed to reveal his familiarity with
a member of the district attorney's office during voir dire. We reject these claims and affirm.
SUPPRESSION OF EVIDENCE
Hafemann argues that the
court should have suppressed evidence found in his vehicle as a result of three
warrantless searches. The facts of the
searches were adduced at the suppression hearing.
Walworth County Deputy
Sheriff Dana Nigbor testified that she was directed to travel to the village of
East Troy on February 14, 1994, after the sheriff's department received a
telephone call from a woman claiming that her former husband, Hafemann, who was
the subject of a restraining order, had appeared at her son's school. Nigbor was advised that the former husband
was apparently attempting to take the child.
Before Nigbor reached the school, she encountered a vehicle matching
Hafemann's traveling near the school.
Nigbor pulled the vehicle over, asked Hafemann for identification and
inquired whether he had just left one of the local schools. Hafemann stated that he had and that he had
wanted to see his former wife and drop off some items he had for her. While Hafemann was sitting in the vehicle,
Nigbor peered inside and noticed that the seats were filled with boxes,
blankets, clothes and numerous food items.
Nigbor testified that "it appeared that he was going somewhere for
awhile." Hafemann told Nigbor's
partner that he was moving. While
Nigbor was calling in the traffic stop and checking on Hafemann's license,
Officer Jeffrey McSwain of the town of East Troy arrived at the scene and
advised that he had just left the complaining witness, Joyce Hafemann, at the
school and that there was a restraining order in effect against Hafemann. Hafemann was then removed from his vehicle,
handcuffed, arrested and read his Miranda rights. After Hafemann was out of the vehicle,
McSwain advised Nigbor that Hafemann was "very dangerous and that he may
be in possession of a weapon at this time." Hafemann was then placed in a police car and Nigbor searched
Hafemann's vehicle to determine if there were any weapons in the vehicle.
Nigbor found maps and a
note indicating the location of Joyce's employment, the child's school and that
Hafemann intended to kidnap his son and remove him from East Troy. The note also indicated that he intended to
abduct his former wife as well. Nigbor
left those items in the front seat of the car and searched the backseat. In the backseat she found a coat in which
she found a note that referred to kidnapping Joyce and killing her if she tried
to escape. Nigbor then found a loaded
.22 caliber pistol underneath the front seat on the passenger side. She entered the trunk using the vehicle's
keys. There she found a loaded rifle, a
knife and numerous boxes of food and other items. She left everything where she found it and secured the
vehicle. The vehicle was towed to a
secured building in the village of East Troy.
Officer Thomas Zeimentz
of the Village of East Troy Police Department described his inventory search of
Hafemann's vehicle once it was secured by the village police department.[1]
The trial court denied
the motion to suppress. The court ruled
that the first search occurred as the result of an investigative detention
under Terry v. Ohio, 392 U.S. 1 (1968). Hafemann was then arrested on probable cause of having violated
the restraining order based upon the information provided by McSwain regarding
the existence of a restraining order and Hafemann's statement that he had gone
to the school to make contact with his former wife. The second search was a search incident to a lawful arrest. Thereafter, the police conducted a lawful
inventory search of the vehicle.
Our review is limited by
the concessions Hafemann makes on appeal.
He concedes that his vehicle was lawfully stopped on February 14, 1994,
that the police lawfully inspected the interior of the passenger compartment
from the outside before he was arrested, and that the police lawfully searched
the passenger compartment of his car incident to his arrest.[2] Hafemann argues that Nigbor had to
immediately seize any incriminating evidence she found during the search
incident to arrest or forego reliance upon it and that Nigbor lacked cause to
search Hafemann's trunk.
When asked to review a
circuit court's refusal to suppress evidence and its conclusion that a search
was reasonable, we will uphold the court's findings of historical or
evidentiary fact unless they are clearly erroneous. See State v. Jackson, 147 Wis.2d 824, 829,
434 N.W.2d 386, 388 (1989). However,
whether these facts satisfy the constitutional requirement of reasonableness
presents a question of law which we determine independently. Id.
While search of a trunk
incident to an arrest is not within the scope of the Belton[3]
rule, State v. Fry, 131 Wis.2d 153, 181, 388 N.W.2d 565, 577
(1986), other justifications exist in this case for searching the trunk. If the search of the automobile is based on
probable cause to believe that evidence of a crime is in the automobile, the
search may include the trunk area. Id.
at 181, 388 N.W.2d at 577 (citing United States v. Ross, 456 U.S.
798 (1982)). Probable cause to arrest
Hafemann authorized the police to search the trunk of his car. Given the information within the command of
law enforcement authorities at the time of the arrest and the items found in
the passenger compartment of the vehicle, the officers had probable cause to
open the trunk.
Even if we did not
conclude that there was probable cause to open the trunk, the items in the
trunk were lawfully obtained in the course of an inventory search once
Hafemann's vehicle was secured by Village of East Troy police. Inventory searches of impounded vehicles are
a recognized exception to the warrant requirement. State v. Milashoski, 159 Wis.2d 99, 112, 464 N.W.2d
21, 26 (Ct. App. 1990), aff'd, 163 Wis.2d 72, 471 N.W.2d 42 (1991). The justification for an inventory search
does not rest upon probable cause; it is an administrative function, not a
search for evidence. State v.
Weber, 163 Wis.2d 116, 132, 471 N.W.2d 187, 194 (1991). An inventory search protects the owner's
property while in police custody, protects the police against disputes over
lost or stolen property and protects the police from potential danger. Id. To determine the reasonableness of an inventory search, we
examine the reasonableness of the intrusion and the reasonableness of the scope
of the intrusion. Id. at
133, 471 N.W.2d at 194. Reasonableness
must be based on the facts and circumstances of each case. Id. Whether the facts in this case satisfy the constitutional
requirement of reasonableness is a question of law which we review de
novo. State v. Whitrock,
161 Wis.2d 960, 973, 468 N.W.2d 696, 701 (1991). The underlying findings of fact of the case must be upheld unless
they are contrary to the great weight and clear preponderance of the
evidence. Id.
Zeimentz testified that
he inventoried the vehicle at the direction of his superior, and at the point
he began the inventory, he was unaware of the items Nigbor had discovered
during her search of the vehicle. The
trial court found that the inventory search was performed pursuant to police
policy and that Zeimentz had to read the various notes found in the car,
including the trunk, so they could be properly identified for the
inventory.
Hafemann argues that the
true purpose of the inventory search was to investigate, rather than to
administratively record the items found in Hafemann's car. The trial court's findings are not clearly
erroneous and Hafemann's contention is not borne out by the record. We cannot conclude that the inventory search
was actually a pretext for an investigatory search.[4] The trial court properly declined to
suppress items located during the inventory search.
We reject Hafemann's
contention that police had to seize items at the scene in order to avoid
suppression. Where there is a delay
between the first observation of an object and its later seizure, the
subsequent seizure is not constitutionally offensive. See State v. Mazur, 90 Wis.2d 293, 303-04,
280 N.W.2d 194, 198-99 (1979).
SUFFICIENCY OF THE EVIDENCE
Hafemann challenges the
sufficiency of the evidence that he attempted to kidnap his former wife
and child and that he attempted to take the child away from his former
wife. We conclude that the evidence
supports Hafemann's convictions for attempted kidnapping and attempted interference
with parental custody.[5]
Upon a challenge to the
sufficiency of the evidence to support a jury's guilty verdict, we may not
substitute our judgment for that of the jury "unless the evidence, viewed
most favorably to the state and the conviction, is so lacking in probative
value and force" that no reasonable jury "could have found guilt
beyond a reasonable doubt." State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any
possibility exists that the jury could have drawn the inference of guilt from
the evidence. See id.
at 507, 451 N.W.2d at 758. It is within
the jury's province to fairly resolve conflicts in the testimony, weigh the
evidence and draw reasonable inferences from the facts. See id. at 506, 451
N.W.2d at 757. If more than one
inference can be drawn from the evidence, the inference which supports the
jury's finding must be followed. State
v. Witkowski, 143 Wis.2d 216, 223, 420 N.W.2d 420, 423 (Ct. App.
1988).
Hafemann concedes that
there was sufficient evidence that he possessed the requisite intent to kidnap[6]
and interfere with custody.[7] However, Hafemann argues that there was
insufficient evidence that he acted in furtherance of his criminal intent.
In interpreting
§ 939.32(3), Stats.,[8]
the court in State v. Stewart, 143 Wis.2d 28, 420 N.W.2d 44
(1988), held that "to prove attempt, the state must prove an intent to
commit a specific crime accompanied by sufficient acts to demonstrate
unequivocally that it was improbable the accused would desist of his or her own
free will." Id. at
31, 420 N.W.2d at 45.
The
conduct element of § 939.32(3) is satisfied when the accused engages in
conduct which demonstrates that only a circumstance beyond the accused's
control would prevent the crime, whether or not such a circumstance actually
occurs. An attempt occurs when the
accused's acts move beyond the incubation period for the crime, that is, the
time during which the accused has formed an intent to commit the crime but has
not committed enough acts and may still change his mind and desist.
Id. at
42, 420 N.W.2d at 49-50.
Hafemann argues that all
he did on February 14, 1994, was go to his son's school and attempt to hail his
former wife. He never saw or spoke with
his son. When Joyce did not emerge from
the school, Hafemann departed. Hafemann
also argues that his conduct at the time he was stopped by police did not
indicate that he was fleeing apprehension.
Hafemann contends that he was punished for guilty intentions rather than
manifest dangerousness. See id.
at 41, 420 N.W.2d at 49.
It was within the jury's
province to draw reasonable inferences from the evidence. Poellinger, 153 Wis.2d at 507,
451 N.W.2d at 758. It was for the jury
to weigh the evidence and draw reasonable inferences from it. Id. at 506, 451 N.W.2d at
757. There was sufficient evidence from
which the jury could determine that Hafemann had undertaken the implementation
of his plan and had gone beyond the mental formulation to commit it. The maps and notes in Hafemann's car
outlined a sequence of events, the first steps of which were to kidnap his son
from school, interfere with Joyce's custody rights and kidnap Joyce.
Joyce testified at trial
that when she arrived at the school to pick up her son, she saw Hafemann's car
turning around in the driveway across from the school. She parked and ran toward the school. As she was going into the school, Hafemann
pulled across the driveway, got out and called to her. She ran into the school and told the school
secretary to call the police. A parent
volunteered to move Joyce's car after Joyce learned that it was blocking the
other parents' access to the school.
When the woman returned from moving the car, she told Joyce that
Hafemann had pulled behind the car, approached her and said "oh, you're
not the bitch."
David Bickford, a
corrections officer with the Walworth County Sheriff's Department, testified
that he books people into the Walworth county jail. After the officer who brought Hafemann into the jail left,
Hafemann told Bickford that he did not understand why he was there and that
"all he was going to do was take his kid and that if she got in the way,
he was going to put her in the trunk and put her out in a field."
The officer who
conducted the inventory search, Zeimentz, testified that one of the notes found
in Hafemann's vehicle detailed, step-by-step, a plan in which Hafemann would
attempt to locate his former wife, take his child and depart for a chosen
spot. The note contemplated that if
Hafemann could seize his former wife, he would do so. Zeimentz testified to other notes threatening the former wife's
health and safety. The jury was also
provided with a full description of the items found in Hafemann's car.
We conclude that the
evidence adduced at trial was sufficient for the jury to find beyond a
reasonable doubt that Hafemann's conduct in furtherance of his intent to kidnap
and interfere with parental custody had proceeded far enough toward completion
of the crimes to make it improbable that he would have desisted but for Joyce's
arrival at the school.
JUROR BIAS
Finally,
Hafemann seeks a new trial because a juror failed to reveal during voir dire
that he knew a member of the district attorney's office, Diane Resch. Hafemann contends that the juror's
familiarity with Resch, who was not involved in the Hafemann prosecution but
was teaching a criminal law course the juror was taking, rendered the juror
impartial.
During voir dire, the
court asked the jurors if any of them were acquainted with any of the lawyers
"in this case." Some jurors
indicated familiarity with some of the police officers in East Troy and
Walworth county. The juror in question,
Mark Lyons, indicated that a corrections officer who would be a witness was his
neighbor. He stated that this
familiarity would not interfere with his ability to be a fair and impartial
juror.
During trial, the
prosecutor advised the court that one of the jurors knew an attorney in his
office. Juror Lyons was brought into
court for examination by the court on the question of whether he knew
Resch. Lyons confirmed that he was
taking a criminal law class from Resch toward a police science degree. He stated that he did not feel that this
would interfere with his ability to be a fair and impartial juror. Lyons indicated that he heard the prosecutor
mention Resch's name in the course of identifying the members of his office,
but he understood the voir dire question to be whether he knew anyone in the
courtroom at the time and not whether he knew anyone in the district attorney's
office. Lyons denied that he concealed
the fact that he knew Resch. Hafemann's
counsel proposed replacing Lyons with the alternate. The court found that Lyons could be a fair and impartial
juror.
On appeal, Hafemann
argues that Lyons failed to answer a material question during voir dire. The record does not bear out this
contention. Rather, Lyons was asked
whether he knew any of the parties, witnesses or lawyers "in this
case." Resch was not involved in
the Hafemann prosecution and therefore Lyons technically answered the question
correctly. Hafemann also argues that
Lyons was biased. However, the court
found that Lyons would be a fair and impartial juror.
Whether a prospective
juror is biased and should be dismissed from the jury panel for cause is a
matter within the trial court's discretion.
State v. Louis, 156 Wis.2d 470, 478, 457 N.W.2d 484, 488
(1990), cert. denied, 498 U.S. 1122 (1991). The trial court's determination that a juror can be impartial
should be overturned only when bias is "manifest." Id. at 478-79, 457 N.W.2d at
488. We discern no misuse of the trial
court's discretion in declining to replace Lyons with an alternate. The court questioned Lyons closely regarding
his familiarity with Resch and his ability to be impartial. Based upon the record created on this
question, we cannot conclude that Lyons manifested any bias. Moreover, Lyons' interpretation of the
question put to him—whether he knew any of the lawyers "in this
case"—is a fair interpretation and does not require an inference that
Lyons was attempting to avoid acknowledging his familiarity with Resch when he
failed to do so during voir dire.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The inventory search occurred pursuant to a written directive that all items secured by the village would be properly inventoried.
[6] Section 940.31(1)(b), Stats., makes guilty of a Class B felony a person who "[b]y force or threat of imminent force seizes or confines another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will."
[7] Section 948.31(1)(b), Stats., provides that "whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class C felony."