State v. Avery, 2010AP411–CR.

CourtCourt of Appeals of Wisconsin
Citation2011 WI App 124,804 N.W.2d 216,337 Wis.2d 351
Docket NumberNo. 2010AP411–CR.,2010AP411–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent,v.Steven A. AVERY, Defendant–Appellant.†
Decision Date24 August 2011

337 Wis.2d 351
804 N.W.2d 216
2011 WI App 124

STATE of Wisconsin, Plaintiff–Respondent,
Steven A. AVERY, Defendant–Appellant.

No. 2010AP411–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 26, 2011.Opinion Filed Aug. 24, 2011.

[804 N.W.2d 219]

On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanna L. Hagopian and Martha K. Askins, assistant state public defenders of Madison.

[804 N.W.2d 220]

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen, attorney general.Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.NEUBAUER, P.J.

[337 Wis.2d 359] ¶ 1 Steven Avery was convicted as a party to the crime of the first-degree intentional homicide of Teresa Halbach. He was also convicted of being a felon in possession of a firearm. Avery challenges his convictions on three grounds. Avery first argues that the trial court erred in denying his motion to suppress evidence resulting from the sixth search of his trailer home. We conclude that this search, conducted three days after the search warrant was issued, constituted a reasonable continuation of the original search and that the evidence was otherwise admissible under the inevitable discovery doctrine.

¶ 2 Next, Avery argues that the trial court erred in barring his presentation of third-party liability evidence. We uphold the trial court's ruling. The third-party liability evidence proffered by Avery identified a large group of individuals who he claimed were near the [337 Wis.2d 360] Avery property on the date of Halbach's murder but who he acknowledged had no motive to harm her. This evidence failed to satisfy the “legitimate tendency” test under State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984), and was properly deemed inadmissible.

¶ 3 Finally, Avery contends that the trial court's excusal of a deliberating juror violated his fundamental rights and that the trial court erred in denying his postconviction motion for a new trial on this ground. Avery additionally contends that if he is deemed to have consented to the excusal of the juror, he is entitled to relief due to ineffective assistance of counsel or in the interest of justice. We reject Avery's challenges. We affirm the judgments of conviction and postconviction order.


¶ 4 Avery was charged on November 15, 2005, with first-degree intentional homicide and mutilation of a corpse. The complaint was later amended to include possession of a firearm by a felon. The charges related to the October 31, 2005 death of Halbach, a twenty-five-year-old photographer. Halbach's clients included Auto Trader magazine. In the morning of October 31, 2005, Steven Avery called Auto Trader magazine to arrange for Halbach to photograph a vehicle at the salvage yard. Halbach had taken photos of vehicles at the Avery salvage yard on five prior occasions. At the time of her disappearance, it was believed that Halbach was last seen taking photos at Avery's Auto Salvage.

¶ 5 In October 2005, Avery's Auto Salvage was located on a forty-acre piece of property owned by Allan and Delores Avery. Two of their sons, Charles and Steven, lived on the property and worked at the salvage yard business. Another son, Earl, worked at the salvage yard but did not live on the property. Their daughter, [337 Wis.2d 361] Barb Janda, lived in a trailer on the property with three of her sons, Bobby, Blaine and Brendan Dassey. Janda was dating Scott Tadych at the time. In addition to the various Avery residences, there were other buildings on the salvage yard property, including a business office and garages. One garage was located between the homes of Barb Janda and Steven Avery. The majority of the property consisted of a “pit” containing cars and other salvage items, including a car crusher and a smelter.

[804 N.W.2d 221]

¶ 6 Halbach's mother reported her missing on November 3, 2005, and a group of volunteers began searching for her. Volunteer searchers who had obtained permission from Earl Avery to search the Avery salvage yard located Halbach's vehicle, a Toyota RAV4, on the Avery property on November 5. The vehicle was covered with branches, plywood and the hood of another vehicle. The Avery Auto Salvage property was then secured by law enforcement and a search warrant was obtained. The property became the subject of a search conducted from November 5 through 12.

¶ 7 During the course of the search, the police found, among other things, burned bone fragments, including skull fragments, in and around a burn pit behind Avery's garage with DNA consistent with that of Halbach; blood in the front area of Halbach's vehicle that was later determined to have come from Avery; blood in the cargo area of the vehicle that was later determined to have come from Halbach; and remnants of a cell phone, Palm Pilot and camera in a burn barrel in Avery's yard of the same models owned by Halbach. While conducting a sixth search of Avery's trailer on November 8, officers discovered the key to Halbach's vehicle in Avery's bedroom. The key was later determined to have Avery's DNA on it. In a search conducted in March 2006, after Avery had been charged, police [337 Wis.2d 362] recovered a nearly intact bullet and bullet fragments from Avery's garage that came from a rifle found in Avery's trailer and contained DNA belonging to Halbach.

¶ 8 Avery's case proceeded to trial in February 2007. Prior to trial, Avery unsuccessfully moved to suppress the evidence of the November 8 search of his trailer and also to admit evidence intended to demonstrate that any of his extended family members or customers of the salvage yard could have committed Halbach's murder. At the close of the nearly five-week trial, a jury convicted Avery of being a party to the crime of first-degree intentional homicide and possession of a firearm by a felon.

¶ 9 Avery filed a postconviction motion on June 29, 2009, requesting a new trial on the grounds that the court improperly excluded third-party liability evidence and improperly excused a deliberating juror. The court denied Avery's motion in a thorough and well-reasoned written decision. Avery appeals that ruling and raises an additional challenge to the trial court's prior denial of his motion to suppress evidence uncovered during the November 8 search of his trailer.

¶ 10 Additional facts will be recited as they pertain to the issues on appeal.

I. The Trial Court Properly Admitted Evidence Recovered During the November 8 Search of Avery's Trailer.A. Background

¶ 11 The facts surrounding the search of the Avery salvage yard and Avery's residence as found by [337 Wis.2d 363] the trial court were set forth in its written decision denying Avery's motion to suppress. Between Saturday, November 5, when the original search warrant was issued, and Wednesday, November 9, when the police obtained a new warrant,1 law enforcement and crime lab personnel entered Avery's trailer on seven occasions. The original warrant authorized a search of Avery's trailer and

[804 N.W.2d 222]

detached garage, a neighboring trailer and garage, and the forty-acre salvage yard, including outbuildings and vehicles. After the warrant was issued on November 5 at 3:30 p.m., law enforcement conducted a ten-minute sweep search of Avery's trailer and an eight-minute search of his garage, looking for any obvious evidence relating to Halbach's whereabouts. Then, at 7:30 p.m. that same day, law enforcement entered Avery's trailer for a second time. This time the officers stayed just over two and one-half hours and seized approximately fifty pieces of evidence, including some trace evidence.2 The third and fourth entries occurred on Sunday, November 6, for the purpose of collecting weapons, a vacuum cleaner, and bedding from the spare bedroom and for an initial search by the state crime lab for trace evidence of blood. A fifth entry occurred on November 7, 2005, for the limited purpose of retrieving the serial number of Avery's computer.

[337 Wis.2d 364] ¶ 12 It is the sixth entry into Avery's trailer on Tuesday, November 8, 2005, and the discovery of the Toyota RAV4 key during that search that provides the basis for Avery's challenge. The November 8 search of Avery's bedroom lasted approximately one hour. During the search, one of the officers tipped and twisted a bookcase, pulling it away from the wall. Another officer then noticed the Toyota RAV4 key on the floor of the bedroom.

¶ 13 Avery contends that the trial court erred in admitting the Toyota RAV4 key found in his bedroom during the November 8 search of his trailer. Avery does not dispute that probable cause existed for the warrant. Instead, Avery argues the reentry on November 8 violated his constitutional guarantee against unreasonable searches and seizures. We disagree.

¶ 14 “The Fourth Amendment of the United States Constitution guarantees that persons shall be secure from ‘unreasonable searches and seizures and sets forth the manner in which warrants shall issue.’ ” State v. Sveum, 2010 WI 92, ¶ 18, 328 Wis.2d 369, 787 N.W.2d 317 (citation omitted). It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Id. (citing U.S. Const. amend. IV). The constitutional validity of a search and seizure conducted pursuant to a warrant is subject to a two-part inquiry: (1) the Warrant Clause requires that all warrants be validly issued [337 Wis.2d 365] and (2) the Reasonableness Clause requires that warrants be reasonably executed. Sveum, 328 Wis.2d 369, ¶ 19, 787 N.W.2d 317. As noted, Avery does not challenge the validity of the warrant. We therefore limit our analysis to the second...

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14 cases
  • State v. Spencer
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 juillet 2022
    ...will participate without the benefit of the prior group discussion. Id. The court of appeals in State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, also addressed the discharge of a juror during jury deliberations. In Avery, the court assumed it was error for the judge to cond......
  • State v. Jackson
    • United States
    • United States State Supreme Court of Wisconsin
    • 1 juillet 2016
    ...Since Weber, however, the court of appeals has decided a series of inevitable discovery cases. See State v. Avery, 2011 WI App 124, 337 Wis.2d 351, 804 N.W.2d 216 ; State v. Lopez, 207 Wis.2d 413, 559 N.W.2d 264 (Ct.App.1996) ; State v. Schwegler, 170 Wis.2d 487, 490 N.W.2d 292 (Ct.App.1992......
  • State v. Spencer
    • United States
    • Court of Appeals of Wisconsin
    • 9 mars 2021
    ...because it was consequential: Juror No. 2 was removed from the panel after that communication. ¶46 In State v. Avery , 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216, the court of appeals addressed a similar factual circumstance and illustrates how to avoid the due process violations foun......
  • State v. Gen. Grant Wilson, 2011AP1803–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 12 mai 2015
    ...connection to the commission of the crime. Denny, 120 Wis.2d at 625, 357 N.W.2d 12 ; see also State v. Avery, 2011 WI App 124, ¶ 43, 337 Wis.2d 351, 804 N.W.2d 216. The majority opinion correctly recognizes that “the Denny test is a three-prong test; it never becomes a one- or two-prong tes......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Albany Law Review Vol. 82 No. 3, March 2019
    • 22 mars 2019
    ...(38) State v. Avery, 2011 WI App 124, [paragraph] 4, 337 Wis. 2d 351, 804 N.W.2d (39) See Dassey v. Dittmann, 201 F. Supp. 3d 963, 967-69 (E.D. Wis. 2016), aff'd, 860 F.3d 933 (7th Cir. 2017), reh'gen banc granted, opinion vacated (Aug. 4, 2017), on reh'gen banc, 877 F.3d 297 (7th Cir. 2017......

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