State v. Tomlinson

• Decision Date: 14 August 2001
• Docket Number: No. 00-3134-CR.,00-3134-CR.
• Citation: 2001 WI App 212,635 N.W.2d 201,247 Wis.2d 682
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John TOMLINSON, Jr., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

247 Wis.2d 682

2001 WI App 212

635 N.W.2d 201

STATE of Wisconsin, Plaintiff-Respondent, v. John TOMLINSON, Jr., Defendant-Appellant.¹

No. 00-3134-CR.

Court of Appeals of Wisconsin.

Submitted on briefs July 3, 2001.

Decided August 14, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Grau Law Office by John J. Grau, Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. WEDEMEYER, P.J.

John Tomlinson, Jr. appeals from a judgment entered after a jury found him guilty of first-degree re ckless homicide, contrary to WIS. STAT. §§ 940.02(1), 939.05 and 939.63 (1999-2000).² He also appeals from an order denying his postconviction motions. He raises three issues: (1) whether the trial court erred when it denied Tomlinson's motion seeking to suppress evidence; (2) whether the trial court erred when it allowed the State to introduce Otis Coleman's preliminary hearing testimony after Coleman asserted the Fifth Amendment during the trial; and (3) whether the trial court erred in instructing the jury that a baseball bat constitutes a dangerous weapon. Because the trial court's ruling on the suppression motion was not erroneous, because Coleman's preliminary hearing testimony was not erroneously admitted, and because the instructional error did not prejudice Tomlinson, we affirm.

I. BACKGROUND

¶ 2. At approximately midnight on February 5, 1999, Otis Coleman and Lewis Phillips were walking near the 1100 block of West Chambers Street in the City of Milwaukee. Tomlinson, his wife, and a third individual approached the pair and Phillips asked Mrs. Tomlinson for a cigarette. He offered to pay a quarter. Mrs. Tomlinson stated that she would sell one for fifty cents. Phillips responded, "a quarter, bitch." At that point, Tomlinson confronted Phillips for calling his wife a bitch. Tomlinson then told Phillips, "[y]ou better be here when I get back," and walked away. A couple of minutes later, Tomlinson returned wielding a baseball bat. Tomlinson swung the bat and hit Phillips in the left knee, causing him to bend forward. Tomlinson then swung the bat and struck Phillips in the left side of the head, causing him to fall to the ground. Coleman, fearing that the bat would be turned on him, left the area.

¶ 3. Angela Green was walking westbound in the 1100 block of West Chambers Street in the early morning hours of February 6, 1999, when she heard a woman yell, "kick the bitch in the head." She recognized this woman as Mrs. Tomlinson. Shortly thereafter, she saw Mr. Tomlinson walking toward her carrying a baseball bat. His two teenage daughters, who were carrying broom and mop handles, were with him. After Green passed the Tomlinson family, she came upon Phillips who was bleeding from the head. Green pointed out the victim to Robert Haynes, who lived close to that area. Haynes went into his home and called 9-1-1.

¶ 4. Paramedics and police arrived at the scene and Phillips was transported to Froedert Memorial Hospital, where he died several days later from cerebral injuries due to blunt force trauma. The medical examiner indicated that Phillips's skull was fractured, consistent with a forceful blow to the head with a baseball bat.

¶ 5. On the evening of February 27, 1999, Milwaukee Police Detective Dennis Kuchenreuther and several of his colleagues were investigating the Phillips homicide. They spoke with Green, who provided a description of the Tomlinsons and the events she had witnessed. Green identified John Tomlinson from a photo array, and informed the detective that Tomlinson, his wife, and two teenage daughters lived at 2948 North 11th Street. Kuchenreuther and several other officers proceeded to the Tomlinson residence. Kuchenreuther knocked on the back door and identified himself as a police detective. He asked if they could come in to look for John Tomlinson. A black female aged fifteen or sixteen opened the door and allowed the officers to enter. John Tomlinson was standing behind the teenage girl, and did not object when the officers entered.

¶ 6. The police officers arrested Tomlinson, his wife Michelle, and the two daughters, Monterio and Kamisha, for the homicide of Phillips. After being placed under arrest, Michelle and the two daughters asked if they could put on their socks and shoes, which were located in a bedroom. The officers allowed them to do so but, for safety reasons, followed them into the bedroom. When the police entered the bedroom, they saw, in plain view, a baseball bat and some broom or mop handles. Recognizing these items as the possible murder weapons, the police seized them as evidence.

¶ 7. Tomlinson was charged with first-degree reckless homicide, while using a dangerous weapon, as party to the crime. He pled not guilty and filed a motion seeking to suppress the evidence seized at the time of his arrest. The trial court conducted the suppression hearing, and Detective Kuchenreuther was the only witness to testify. The trial court found that the entry was consensual.

¶ 8. The case was tried to a jury in June 1999. During the trial, Coleman was called by the State. Outside the presence of the jury, Coleman refused to answer the questions posed, invoking the Fifth Amendment. Based on this refusal, the State moved to admit Coleman's testimony from the preliminary hearing. Over defense objection, the trial court ruled that Coleman was unavailable, and that his prior testimony could be admitted pursuant to WIS. STAT. § 908.045(1).³ The trial court found that Coleman's reliability and credibility had been sufficiently challenged at the preliminary hearing to satisfy the confrontation rule. In addition, the trial court indicated that it would allow Tomlinson to introduce additional impeachment material, including Coleman's prior conviction record, prior statements, and a memorandum outlining the consideration Coleman received for cooperating in the investigation and testifying at the preliminary hearing.

¶ 9. After testimony was concluded, the trial court read the jury instructions. Specifically, the trial court advised the jurors:

If you find the defendant guilty, you must answer the following question. Did the defendant commit the crime of first[-]degree reckless homicide while using, threatening to use or possessing a dangerous weapon.

Before you may answer the question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime while using, threatening to use or possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime.

Dangerous weapon means a baseball bat.

¶ 10. After instructions were complete, the State advised the court that the jury should be allowed to decide whether or not a baseball bat constituted a dangerous weapon, and the instruction given took that decision away from the jurors. In response to the State's concern, both defense counsel and Tomlinson indicated that they wanted to leave the instruction as it was read. The jury returned a guilty verdict.

¶ 11. Tomlinson filed postconviction motions, which were summarily denied. He now appeals.

II. DISCUSSION

A. Motion to Suppress.

¶ 12. The first issue is whether the entry into the Tomlinson home was consensual. The trial court, based on the testimony of Detective Kuchenreuther, found that the entry was consensual. We agree.

[1]

¶ 13. Our review of suppression rulings is mixed. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891, cert. denied, 121 S. Ct. 2207. We will uphold the trial court's findings of fact if they are not clearly erroneous; however, we will independently determine whether or not the search was unconstitutional. Id. ¶ 14. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).⁴ The trial court found that the entry was consensual, based on the detective's testimony at the suppression hearing and inferences arising from the totality of the circumstances. That finding is not clearly erroneous. Detective Kuchenreuther testified at the suppression hearing that he knocked at the door, and when the teenage girl answered, he asked if he could come in. He indicated that the teenage girl opened the door and allowed him to enter. He also testified that Tomlinson was standing nearby and observing this, but he did not object to the detective's entry. We agree with the trial court that a reasonable inference arises from this testimony — that the individual who answered the door consented to the entry.

[3]

¶ 15. Tomlinson argues that this testimony could support the inference that the teenage girl merely turned to inform her parents that someone was at the door. Although we do not disagree that this is another rationally based view of the evidence, the trial court, after personally observing the testimony of Detective Kuchenreuther, found that the teenage girl expressly consented to the entry when she opened the door and allowed the officers to walk in behind her. The record supports the trial court's finding that the teenage girl's response to the detective's request to enter — opening the door, walking into the house, and allowing the officers to follow her into the house — was sufficient to convey her consent. Schneckloth, 412 U.S. at 222 (gestures or conduct may convey consent to search).

¶ 16. Tomlinson argues, however, that the child who opened the door did not have the authority to consent to the entry. We disagree. Tomlinson contends that nothing in the record shows that the minor child who answered the door had authority to consent to the entry by the officers. This court acknowledges that this specific issue was not fully and completely addressed, primarily because the "authority to...