Opinion
No. 03-2802-CR.
Opinion Filed: September 30, 2004. Order Withdrawn: October 21, 2004.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: ELSA C. LAMELAS, Judge. Reversed and cause remanded with directions.
Before Deininger, P.J., Dykman and Vergeront, JJ.
.
David J. Roberson appeals from a judgment of conviction on one count of delivery of cocaine, and from an order denying a postconviction motion for relief. Roberson contends his trial counsel's failure to file a motion to suppress his identification by two officers denied him the effective assistance of counsel. He asserts that the identification was the fruit of an illegal search. Further, Roberson argues that the trial court erred when it failed to conduct a Machner hearing before deciding the post-conviction motion. We agree with Roberson that the trial court erred by failing to hold a hearing. The record does not conclusively demonstrate Roberson was not entitled to relief, and it was insufficient to decide the postconviction motion. We therefore reverse the trial court's order denying the motion and remand with directions to conduct a Machner hearing to address Roberson's motion.
BACKGROUND
¶ 2 Trial testimony established the following facts. Shortly after noon on December 1, 2002, a drug enforcement unit of the Milwaukee Police Department conducted surveillance near the corner of 19th and State Streets in the City of Milwaukee. Detective Mark Wagner observed two men for about twenty minutes whom he suspected of selling narcotics. He then directed Officer Michael Terrell to attempt to buy drugs from the men.
¶ 3 Officer Terrell approached one of the men, later identified as Lindsey Edwards, and told him that he (Terrell) was looking for some "work," meaning cocaine. Edwards led Officer Terrell across the street to a grey car. Seated in the front passenger's side of the car was a man, later identified as David Roberson. Edwards told Roberson: "My guy want three," meaning three cuts of cocaine. Officer Terrell testified he was within three or four feet of Roberson and got a good look at him. Officer Terrell gave Roberson $25 for three cuts and left the area. Officer Terrell then radioed Detective Wagner about the buy and gave him a description of the grey car.
¶ 4 Detective Wagner notified other officers that Officer Terrell had made a buy and relayed the description of the car. Detective Wagner then spotted the car and noticed it make a number of "weird turns" off streets and alleyways between 20th and 21st Streets. Detective Wagner testified he saw the car stop in front of a residence at 1011 North 21st Street. Detective Wagner testified he observed David Roberson and the driver of the vehicle, later identified as Kirdell Wright, run up the porch, look around, and run into the house. Detective Wagner directed other officers to converge upon the house. Detective Wagner watched the front of the building, while Officer Terrell took up surveillance at the back and Officer Manuel Martinez observed the north side of the house. Officers Mitchell Ward and Bodo Gajevic arrived at the scene approximately two minutes later.
¶ 5 Shortly thereafter, Officers Ward and Gajevic approached the front door and knocked. Officer Martinez joined them on the front porch. The defendant's mother, Cecilia Roberson, answered the door. The parties dispute what happened next.
¶ 6 Officer Ward testified that Ms. Roberson allowed him and Officers Martinez and Gajevic into the house. The officers brought five young men out onto the porch to be viewed by Detective Wagner and Officer Terrell. When none of the five men were identified as David Roberson, Officer Ward testified that Ms. Roberson consented to a search of the house for more subjects. Officer Ward then found David Roberson in an upstairs bedroom and led him outside, where he was positively identified by Detective Wagner and Officer Terrell.
¶ 7 At trial, Ms. Roberson disputed Officer Ward's version of events:
Q: Do you remember at that point the police officer saying to you, Is there anyone else in the house?
A: No, it didn't go like that.
Q: And you replying, No?
A: No.
Q: And then they were given permission to go in, and they find David upstairs; that's not how it happened?
A: No, no.
Ms. Roberson testified that the officers entered shortly after she turned back into the house.
A: I walked into the house and knocked on my sister's bedroom door to ask her to open the door to come out of her room. Just as she opened her door, the police came in and was asking for everybody in the house to come outside.
Q. They came into the home?
A: Yes.
Further, Detective Timothy Graham's interview report with Ms. Roberson avers that "as [Ms. Roberson] was getting every one out of the house, she yelled upstairs for Monique and them. Ms. Roberson stated she started upstairs to get Monique and the officers pushed past her."
¶ 8 On December 4, 2002, the Milwaukee County District Attorney's office filed a criminal complaint charging David Roberson and Lindsey Edwards with delivery of a controlled substance (cocaine) as parties to a crime. A jury found Roberson guilty but could not reach a verdict as to Edwards. The State presented no physical evidence at trial linking Roberson to the crime, relying upon the officers' testimony and identification of Roberson. The trial court sentenced Roberson to sixty months' imprisonment.
¶ 9 On September 11, 2003, Roberson filed a postconviction motion seeking suppression of Roberson's identification, and a new trial. Roberson argued that defense counsel was ineffective for failing to file a pre-trial motion to suppress. The trial court denied the motion without an evidentiary hearing, determining that Ms. Roberson and Officer Ward provided "essentially the same testimony the court would have heard had a motion to suppress been filed by trial counsel prior to trial." On the trial record, the court concluded that there was "not a reasonable probability that counsel's failure to file a suppression motion would have altered the result of the proceedings."
¶ 10 The trial court also questioned whether Ms. Roberson denied that she had consented to the search of her home, and concluded that even if she had, "the court would have found her less credible given the evident partiality towards her son." The court then detailed inconsistencies between the testimony of Officer Ward and Ms. Roberson, determining that all "would have been resolved in favor of the State in this case." Roberson appeals.
The trial court explained:
The specific question asked Ms. Roberson was: Q: "And then they were given permission to go in, and they find David upstairs; that's not how it happened?" A: "No, no." Ms. Roberson could merely have been objecting to the order in which the events occurred, rather than denying that she gave the officers permission.
STANDARD OF REVIEW
¶ 11 A circuit court acts within its discretion in denying without a Machner hearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State , 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). "If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." State v. Bentley , 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).
DISCUSSION
¶ 12 The necessity of a Machner hearing for claims of ineffective assistance that are not cursory or not lacking in merit is well established. See, e.g., State v. Curtis , 218 Wis. 2d 550, 555, n. 3, 582 N.W.2d 409 (Ct.App. 1998). In Curtis , a defendant argued that a Machner hearing was not required on his claim of ineffective assistance because "trial counsel's errors were so obvious and could not possibly have been trial tactics." Curtis , 218 Wis. 2d at 554. The court disagreed, holding that "[w]hile the Machner court did not explicitly specify that a hearing was required in every case, we construe it to mean just that." Id. at 554.
¶ 13 Applying the first two prongs of the Nelson test to this case, we conclude that Roberson's motion was both factually sufficient and not dependent upon conclusory allegations. The officers did not have a warrant. Cecilia Roberson, whose consent to the entry and search is the key issue here, testified that officers entered the home as she was knocking on her sister's bedroom door; responded "no, no" at trial immediately after a suggestion that she gave her permission to the officers to enter her house; and told Detective Wagner that police "pushed past" her up the stairs toward where Mr. Roberson was found.
¶ 14 The trial court based its denial of the motion on trial testimony and the court's own observation of witnesses. We disagree that trial testimony provided "essentially the same testimony the court would have heard" in a hearing on a motion to suppress. Ms. Roberson and Officer Ward were not questioned thoroughly at trial about whether consent was given. And other officers who witnessed the entry did not testify. We do not know if their testimony would have supported Officer Ward's or Ms. Roberson's version of events.
¶ 15 However, we cannot determine whether the trial court erroneously exercised its discretion in denying the opportunity for an evidentiary hearing without determining if, under the third prong of Nelson , the record conclusively demonstrates that Roberson is not entitled to relief. This question requires us to consider the merits of Roberson's two interdependent claims, that the identification was the fruit of an illegal entry and should be suppressed and that the failure of his counsel to object to the admission of the identification at trial denied him the effective assistance of counsel.
¶ 16 The Fourth Amendment to the United States Constitution and art. I, sec. 11 of the Wisconsin Constitution establish the right of citizens to be free from unreasonable searches and seizures. A warrantless arrest in the home is unconstitutional unless probable cause and exigent circumstances are present. See Payton v. New York , 445 U.S. 573, 588, 100 S. Ct. 1371 (1980). The State has the burden to justify a warrantless in-home entry. State v. Larson , 2003 WI App 150, ¶ 15, 266 Wis. 2d 236, 668 N.W.2d 338. We address each of the state's arguments justifying the entry in turn.
¶ 17 The State asserts the entry was legal because there were exigent circumstances to legitimize the entry. Exigent circumstances justifying a warrantless entry of the home exist when there is probable cause and at least one of the following: (1) an arrest is made in "hot pursuit"; (2) a threat to safety of suspect or others exists; (3) a risk is present that evidence would be destroyed; or (4) there is a likelihood that the suspect would flee. Laasch v. State , 84 Wis. 2d 587, 592, 267 N.W.2d 278 (1978). We apply the facts to an objective test: whether a police officer under the conditions known to him or her reasonably believes that exigent circumstances are present. State v. Rodriguez , 2001 WI App 206, ¶ 18, 247 Wis. 2d 734, 634 N.W.2d 844.
¶ 18 The State contends that the potential for destruction of evidence justified the entry. This contention seems to contradict the trial testimony of Detective Wagner and Officer Ward. Detective Wagner testified that he watched Roberson enter the house, then waited for more officers to arrive on the scene. His testimony indicates that he did not direct those officers already present to enter immediately when they had the best opportunity to prevent the destruction of evidence. Officer Ward testified that when he and the other officers did enter, they waited for Ms. Roberson to round up individuals from the house. This testimony further suggests that circumstances may have no longer been exigent at the time officers executed the search. The wait would have provided sufficient time to destroy buy money, small quantities of drugs or other evidence.
¶ 19 However, just as we cannot determine upon the trial court record whether Ms. Roberson consented to the entry, we cannot determine whether exigent circumstances justified the entry. At a Machner hearing, the testimony of witnesses not called at trial and more detailed examination of trial witnesses would provide a sufficient evidentiary basis on which to determine whether circumstances were exigent.
Courts are reluctant to find exigent circumstances when the crime giving rise to the search is nonviolent, or is a minor offense. In State v. Kryzaniak , 2001 WI App 44, 241 Wis. 2d 358, 624 N.W.2d 389, we rejected an assertion of exigent circumstances and overturned a judgment of conviction for possession of marijuana and carrying a concealed weapon. Officers discovered the marijuana and the weapon after entering a residence without a warrant to find the subject of a civil capias, Joshua Kryzaniak. Id. Kryzaniak had been detained under the capias earlier that day, and had at some point escaped. Id. The Kryzaniak court held that "the nature of the underlying offense is an important factor to be considered in the exigent circumstances calculus." Kryzaniak , 241 Wis.2d 358, ¶ 22. It cited Justice Jackson's concurrence in McDonald v. United States , 335 U.S. 451, 459-60, 69 S. Ct. 191, (1948), explaining why exigent circumstances justifying a warrantless home entry should be severely restricted when a nonviolent crime has been committed:
Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it. It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.
Kryzaniak , 241 Wis.2d 358, ¶ 21 (citations omitted).
¶ 20 To prevail on a motion asserting ineffective assistance of counsel, a defendant must prove not only that counsel's performance was deficient, but also that this deficiency may have affected the outcome. Kimmelman v. Morrison , 477 U.S. 365, 374 (1986). Roberson asserts that inclusion of the identification was prejudicial because it was the only evidence linking Roberson to the crime; the State produced no physical evidence. The State responds that Roberson cannot prove prejudice, asserting that Roberson would have been convicted with or without the identification for two reasons.
¶ 21 First, the State contends that even if the identification of Roberson outside of the residence was an illegal fruit of a poisonous tree, the in-court identifications by Detective Wagner and Officer Terrell would still be admissible, and, consequently, the result at trial would have been the same. The State explains that both officers had prior opportunity to observe Mr. Roberson before the warrantless entry, Officer Terrell during the buy, and Detective Wagner for twenty minutes prior to the buy. The State concludes that the in-court identifications were based upon the officers' pre-search contacts with Roberson and would therefore have been admissible. We disagree.
¶ 22 In State v. Knapp , the Wisconsin Supreme Court articulated the "fruit of the poisonous tree" doctrine: "derivative evidence must be suppressed as `fruit of the poisonous tree,' if it was discovered by exploiting an illegal search. Consequently, if the derivative evidence is discovered `by means sufficiently distinguishable from the illegality to be purged of the primary taint,' then it is admissible. Knapp , 2003 WI 121, ¶ 48, 265 Wis.2d 278, 666 N.W.2d 881 (citations omitted). In State v. Walker , the court explained how the "fruit of the poisonous tree" doctrine operates in the context of an in-court identification of a suspect who had been arrested in violation of the Fourth Amendment:
In determining whether an in-court identification is the fruit of an unlawful arrest, the primary question is whether the lineup identification, suppressed as the fruit of an unlawful arrest, has affected the reliability of the in-court identification, making it inadmissible as well. A particular witness's in-court identification is admissible if the court finds it "rests on an independent recollection of the initial encounter with the perpetrator, uninfluenced by the lineup identification."
State v. Walker , 154 Wis.2d 158, 188, 453 N.W.2d 127 (1990) (citations omitted). Applying these principles, the State suggests that the in-court identification of Roberson by Detective Wagner and Officer Terrell was based upon an independent recollection discovered "by means sufficiently distinguishable from the illegality to be purged from the primary taint." Wong Sun v. United States , 371 U.S. 471, 488, 83 S. Ct. 407. We disagree.
¶ 23 This case is distinguishable from Walker , and other cases involving the admissibility of in-court identification following a tainted line-up. See also, United States v. Crews , 445 U.S. 463, 100 S. Ct. 1244 (1980). Here, unlike Walker and Crews , the identifying witnesses were not citizen eyewitnesses. They were officers who had worked in concert with the officers who conducted the warrantless entry. These witnesses knew that they would be required to identify the suspect upon his arrest, and that this would provide them with an additional identification to bolster the in-court identification. Furthermore, without the identification that followed the warrantless search, officers could not have arrested Roberson — at least not without obtaining a warrant or waiting for Roberson to leave the house.
We use "tainted line-up" to refer to both (1) a line-up that follows an illegal arrest and (2) a line-up tainted by police conduct during the line-up itself.
¶ 24 In a closely analogous case, the New York Court of Appeals held inadmissible an in-court identification by an officer who participated in a "buy and bust" operation. People v. Gethers , 86 N.Y.2d 159, 654 N.E.2d 102 (1995). There, an undercover agent bought narcotics from Gethers and another man, then gave a description of the men to another officer. Id. at 161. The other officer arrested the two men and brought them to a street corner where the undercover agent drove by and positively identified the two men. Id. At a pretrial suppression hearing, the trial court suppressed all physical evidence of the arrest but permitted the undercover agent to identify the defendants in court. Id. The men were convicted, and Gethers appealed. An appellate division court reversed, and the court of appeals affirmed, holding that
the identification of defendant, made by [the undercover agent] immediately following the illegal arrest and detention of defendant, was a product of the illegality and, therefore, should have been suppressed. The causal link between the arrest and identification is obvious and unattenuated — the illegal seizure and detention of defendant not only made the identification possible, but was done for the purpose of displaying him to the undercover officer and thereby securing a pretrial identification to be used at the trial to bolster her in-court identification.
People v. Gethers , 86 N.Y.2d 159, 162, 654 N.E.2d 102 (1995) (citations omitted).
¶ 25 We find the New York Court's reasoning persuasive, and hold that an in-court identification by an officer cannot be "purged from the primary taint" of the illegal arrest if that officer also participated in the "buy and bust" operation that led to the arrest of the defendant.
¶ 26 Second, the State contends that the suppression of the identification would not have resulted in a different outcome because Roberson's identity would have eventually been discovered by lawful means. Again, we disagree.
¶ 27 The inevitable discovery doctrine allows evidence obtained by an illegal search to be admitted if the State proves the following by a preponderance of the evidence: (1) it is reasonably probable that the evidence would have been discovered by lawful means; (2) police already had leads making the discovery inevitable before the illegal search occurred; and (3) police were actively pursuing these leads at the time of the illegal search. State v. Schwegler , 170 Wis. 2d 487, 500, 490 N.W.2d 292 (Ct.App. 1992). "The inevitable discovery doctrine depends on an untainted independent source which would likely have led the police to the same conclusion they reached by illegal methods." State v. Anderson , 160 Wis. 2d 307, 318, 466 N.W.2d 201 (Ct.App. 1991). Officers were not simultaneously pursuing an untainted independent source in this case; they were conducting one continuing investigation. Id. The actions of the officers in this case do not fit the narrow exception to Fourth Amendment protection represented by the inevitable discovery doctrine.
¶ 28 We conclude that the record does not conclusively demonstrate that Roberson is not entitled to relief. Therefore, we determine that the circuit court erroneously exercised its discretion by denying Roberson's postconviction motion without first holding a Machner hearing. We reverse the order denying the postconviction motion and remand to the circuit court to reconsider Roberson's motion with the benefit of a Machner hearing.
By the Court. — Judgment and order reversed and cause remanded with directions.