State v. Blalock, 88-1094-CR

• Citation: 442 N.W.2d 514,150 Wis.2d 688
• Decision Date: 04 May 1989
• Docket Number: No. 88-1094-CR,88-1094-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Shelby BLALOCK, d Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 514

442 N.W.2d 514

150 Wis.2d 688

STATE of Wisconsin, Plaintiff-Respondent, v. Shelby BLALOCK, ^d Defendant-Appellant No. 88-1094-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 3, 1989.

Opinion Released May 4, 1989.

Opinion Filed May 4, 1989.

Donald J. Hanaway, Atty. Gen., & Christopher G. Wren, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Luck & Rosenthal, S.C., with Joel H. Rosenthal of counsel, Milwaukee, for defendant-appellant.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Shelby Blalock appeals from a judgment of conviction entered on jury verdicts finding him guilty of conspiracy to deliver marijuana on January 9, 1986, in violation of secs. 161.41(1)(b), 161.14(4)(t), and 939.31, Stats., and two counts of possession of marijuana (on January 9, 1986 and February 2, 1986) with intent to deliver, in violation of secs. 161.41(1m)(b) and 161.14(4)(t), Stats. He raises seven issues: (1) whether the trial court lacked personal jurisdiction because the complaint was insufficient; (2) whether the trial court lacked personal jurisdiction because the evidence adduced at the preliminary examination did not support the bindover; (3) whether certain out-of-court statements of an alleged co-conspirator should have been received into evidence; (4) whether conversations between the alleged co-conspirator and third persons should have been admitted into evidence; (5) whether the trial court should have admitted into evidence conversations between Blalock and the alleged co-conspirator that took place on dates other than January 9 and February 2, 1986; (6) whether the trial court should have instructed the jury on the lesser-included crime of possession of marijuana; and (7) whether Blalock deserves a new trial "in the interest of justice." ¹ We affirm.

I. The Complaint

Blalock was charged in counts two and three of an eighteen count complaint, which alleged various drug related offenses involving thirteen defendants. Count two alleged that on January 9, 1986, Blalock and Scott Thomas entered into an illegal conspiracy for Blalock to sell marijuana to Thomas. The complaint further alleged that, pursuant to the conspiracy, Thomas "contacted purchasers" for the marijuana. Count three alleged that Blalock intentionally possessed marijuana on January 9, 1986, with the intent to deliver it.

The complaint was sworn to by a Milwaukee police detective lieutenant. The detective recounted that from January 9, 1986 through February 3, 1986, he and other Milwaukee police officers monitored telephone conversations from Thomas' home phone between Thomas and other persons. Transcripts of those telephone conversations were incorporated into the complaint in order to establish "the essential facts" of the crimes charged. See sec. 968.01, Stats.

A complaint passes muster if it recites facts that "would lead a reasonable person to conclude that a crime had probably been committed and that the defendant named in the complaint was probably the culpable party." State v. Gaudesi, 112 Wis.2d 213, 219, 332 N.W.2d 302, 305 (1983). Criminal complaints must be evaluated with a common sense, non-hypertechnical, reading. Ibid.

Section 161.41(1), Stats., makes it "unlawful for any person to ... deliver a controlled substance." Marijuana is a controlled substance. Sec. 161.14(4)(t), Stats. Sections 161.41(1x) and 939.31, Stats., subject to criminal penalty any person who, "with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime," as long as "one or more of the parties to the conspiracy does an act to effect its object." Sec. 939.31, Stats.

The intercepted telephone conversations between Blalock and Thomas, and Thomas and others (Blalock was mentioned as a marijuana supplier during the course of some of these conversations) presented in the complaint are sufficient to lead a reasonable person to conclude that Blalock and Thomas agreed on January 9, 1986, that Blalock would supply Thomas with marijuana and that Thomas and Blalock did things to accomplish the goal of that agreement. Accordingly, the complaint establishes probable cause in connection with count two, which charged Blalock and Thomas with a conspiracy to have Blalock deliver marijuana to Thomas.

The complaint also establishes probable cause in connection with count three, which charged that Blalock possessed marijuana on January 9, 1986, with intent to deliver. The complaint recites that on January 9, Thomas and Blalock had the following telephone conversation at 7:10 P.M.:

Scott Thomas: "Hello."

Shelby Blalock: "Yeah, Shelby."

Scott Thomas: "Yeah, ah yeah, man I wanted to get a qt, quarter pound if you got one."

Shelby Blalock: "Alright."

Scott Thomas: "How is it?"

Shelby Blalock: "It's, ah, it's real good it's gold lookin man, but it's got a lot of seeds to it."

Scott Thomas: "Damn, I guess you gotta give and take you know. How much does it go for?"

Shelby Blalock: "190."

Scott Thomas: "Oh boy, boy, boy, boy, boy, wow, it's a little steep there ain't it Shel?"

Shelby Blalock: "Yeah, it is man, but you know it's like the top of the line now."

Scott Thomas: "Well, why don't you bring me over one man if you can, or you want me to come over or how you?"

Shelby Blalock: "I'll tell you what, see I'm fixin to, ah, why don't you let me call you right back and I'll let you know how everything is alright?"

Scott Thomas: "Okay."

This conversation provides a reasonable basis to conclude that Blalock possessed marijuana on January 9, 1986, with intent to deliver. Since the complaint states probable cause, the trial court did not lack jurisdiction to hold the preliminary examination. See State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 441, 173 N.W.2d 175, 178-179 (1970).

II. The Preliminary Examination

"A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." Sec. 970.03(1), Stats. It is a screening device to assure that "the accused is not being prosecuted too hastily, improvidently, or maliciously and that there exists a substantial basis for bringing the prosecution." State v. Dunn, 121 Wis.2d 389, 398, 359 N.W.2d 151, 155 (1984). Thus, a court presiding over a preliminary examination must decide "whether the facts and the reasonable inferences drawn therefrom support the conclusion that the defendant probably committed a felony." Id. at 397-398, 359 N.W.2d at 155. A trial court's determination that the evidence is sufficient to support a bindover is a question of law that we independently analyze. Id. at 398-399, 359 N.W.2d at 155.

Only two witnesses testified at the preliminary examination. The State and Blalock stipulated that their testimony and the facts contained in the criminal complaint could be used to establish probable cause to support a bindover. Blalock, however, challenged the evidence's sufficiency.

At the conclusion of the preliminary examination, the trial court found that there was probable cause to believe that Blalock "committed the felonies outlined in the criminal complaint," specifically Counts 2 and 3, and bound him over for trial. Following the bindover, the State filed an Information charging Blalock with the felonies charged in counts 2 and 3 of the criminal complaint and added a new, unnumbered, count that charged Blalock with possession of marijuana on February 2, 1986, with intent to deliver.

The only witness testifying at the preliminary examination whose testimony related to Blalock was Cari Lynn Peters. She lived with Thomas for some eight months, beginning with the middle or the end of January 1986, although she "stayed there quite frequently before." She testified that she met Blalock when he visited Thomas' apartment sometime after the middle of January of 1986 and that she remembered Blalock bringing about a quarter of a pound of marijuana, which she described as "a larger quantity," to Thomas twice, but could not recall the dates. Thomas, she testified, would then separate, weigh, and package the marijuana, which he would either smoke or sell.

As determined earlier, the complaint established probable cause to believe that Blalock possessed marijuana on January 9, 1986, with intent to deliver, and that he conspired with Thomas to supply Thomas with marijuana. Since Blalock and the State stipulated that the facts in the criminal complaint could be considered with Peters' testimony for purposes of the preliminary examination, there was a sufficient showing of probable cause to support a bindover in connection with these offenses.

The Information's unnumbered count charged Blalock with possession of marijuana on February 2, 1986, with intent to deliver. This crime was not charged in the complaint. In pressing felony charges following a bindover, the State is not limited to the crimes initially charged in the complaint but may, in its discretion, charge any offense that is not " 'wholly unrelated' to the facts adduced at the preliminary hearing." State v. Hooper, 101 Wis.2d 517, 535-536, 305 N.W.2d 110, 119-120 (1981). Here, by stipulation, the "facts adduced at the preliminary examination" included the facts alleged in the criminal complaint. The complaint relates the following intercepted telephone conversation between Blalock and Thomas on the morning of February 2, 1986:

Scott Thomas: "You got some of that nice smokish?"

Shelby Blalock: "Ah, huh." (in the affirmative) "Nice, nice I know you're gonna like this."

Scott Thomas: "Oh, yeah?"

Shelby Blalock: "Yep."

Scott Thomas: "Yeah, I'll probably be in the market for some, probably, shit, yeah, I know today for sure, cause I'm, I'm got maybe two, two, three "J's" left."

Shelby Blalock: "I hear that."

Scott Thomas: "So I'm gonna be wantin to pick up some probably, man, about 1 o'clock or so."

Shelby Blalock: "Alright."

The reasonable inference that can be...