State v. Bucki

• Decision Date: 02 June 2020
• Docket Number: Appeal No. 2018AP999-CR
• Citation: 393 Wis.2d 434,947 N.W.2d 152,2020 WI App 43
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark J. BUCKI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

393 Wis.2d 434

947 N.W.2d 152

2020 WI App 43

STATE of Wisconsin, Plaintiff-Respondent,

v.Mark J. BUCKI, Defendant-Appellant.^†

Appeal No. 2018AP999-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: August 27, 2019

Opinion Filed: June 2, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of James Rebholz of Rebholz & Auberry, Wauwatosa.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Aaron R. O'Neil, assistant attorney general.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Mark Bucki appeals a judgment of conviction, entered following a jury trial, for first-degree intentional homicide, strangulation, and hiding a corpse, all involving his estranged wife, Anita. Bucki argues he is entitled to a new trial because the circuit court erroneously exercised its discretion when it admitted two forms of canine scent evidence: (1) opinions from handlers of cadaver dogs that their dogs had alerted to the scent of human remains at various locations on Bucki's property; and (2) opinions from handlers of trailing dogs that their dogs had detected in the area where Anita's body was found the scent from a pair of tennis shoes taken from Bucki's residence. Bucki argues the court should not have admitted this canine scent evidence because it was not corroborated by any physical evidence and because it was of low probative value and was highly prejudicial.

¶2 We conclude the circuit court did not erroneously exercise its discretion when it decided to admit the canine scent evidence. It is undisputed that this case involves expert testimony under WIS. STAT. § 907.02 (2017-18).¹ Following a two-day evidentiary hearing on the admissibility of the canine scent evidence, the court conducted a lengthy analysis in which it identified and applied the proper factors under that statute. We reject Bucki's request for a categorical rule that would condition the admissibility of relevant canine scent evidence on there being physical or forensic evidence corroborating the dog alerts. Rather, expert testimony regarding dog alerts, like all other expert testimony, may be admitted if the court concludes it satisfies the threshold reliability criteria in § 907.02 and is not otherwise subject to exclusion under WIS. STAT. § 904.03. ¶3 Bucki also appeals an order denying his postconviction motion seeking a new trial based on the alleged ineffective assistance of his trial counsel. In particular, Bucki argues his trial attorneys violated his Sixth Amendment right to counsel by failing to call his own canine scent expert at trial; failing to present evidence that Anita had on one occasion worn the tennis shoes used in the trailing dog search, thereby contaminating them; and failing to sufficiently challenge the State's theory that an area of disturbed earth on Bucki's property was an abandoned burial site for Anita's body. We conclude Bucki's trial attorneys did not perform deficiently, and we affirm the judgment and order.

BACKGROUND

¶4 On the evening of April 26, 2013, the Lincoln County Sheriff's Office received a call from Bucki reporting that his wife, Anita, was missing from their residence in the Town of Corning. Investigators who responded to the call believed there were suspicious circumstances surrounding Anita's disappearance. In particular, they noted a strong odor of cleaner in the garage, handprints on the bed of Bucki's truck, and that the driveway appeared to have been recently graded. They contacted lieutenant Mark Gartmann, who walked the property and then spoke to Bucki in the residence.

¶5 Bucki told Gartmann that he and Anita had separated a few weeks earlier and that she had been staying with a friend in Wausau. According to Bucki, Anita had visited him at their residence at approximately 9:00 p.m. the night before, on April 25th. Bucki and Anita talked for a few hours, during which Anita expressed that she did not want a divorce. Bucki told Gartmann he had been dating another woman, and he admitted to raising his voice with Anita while discussing the potential divorce. Bucki claimed he went to bed in the bedroom around midnight and Anita was planning to sleep at the residence overnight on the couch.

¶6 Bucki continued that when he awoke around 5:00 a.m., Anita was gone. Her purse, jacket and cell phone were still in the residence. Bucki told Gartmann he left the residence and the property to look for Anita on the morning of April 26th, and then in the afternoon he cleaned out some of Anita's items from the residence, tore carpet out of a bedroom, and burned some items in a burn barrel on the property. Bucki was supposed to go to an auction with his nephew on the 26th, but that morning he sent his nephew a text message canceling the meeting due to "[two] woman issues." Bucki also claimed Anita had sent him a text message earlier that month instructing him to split some life insurance money with their son, Clint, if anything happened to her. Bucki told Gartmann that, financially, things had "really [been] going backwards" for him.

¶7 After interviewing Bucki, officers continued to search around the residence. Further scrutiny of the truck bed revealed what looked like human handprints in the dust on the passenger side. Additionally, officers noted markings in the dust that appeared as if something lying in the truck bed had been dragged out. The bed on the driver's side of the truck looked to have been cleaned and smelled like orange cleaner; there was no dust on that side. Police searched the property for Anita into the night, to no avail.

¶8 Police executed a multi-day search warrant of Bucki's residence beginning on April 30, 2013. During the course of the search, police used two dogs trained to alert for the scent of human remains, commonly known as "cadaver dogs." On April 30, then-Madison Police Department officer Solon McGill brought his cadaver dog, Izzy, to the residence. On May 1, police brought retired Waupun Police Department lieutenant Jeanne Frost to the property with her cadaver dog, Trixie. Both cadaver dogs alerted at various places on the property, indicating they detected the scent of human remains.

¶9 At trial, McGill testified that Izzy was off-lead and went into the garage where the truck was located. Izzy alerted near the rear driver's side wheel well of the truck and in the truck bed. Izzy then went to a second, larger garage on the property and alerted to an open-top trailer attached to an all-terrain vehicle (ATV). Izzy also alerted on a large metal roller, which McGill testified was "the type that you tow behind a tractor or ATV to flatten out your lawn." In the yard, Izzy alerted to a burn barrel; Izzy also alerted to a shallow, rectangular area of disturbed earth near an ATV trail, which was approximately three feet wide and five feet long and which appeared to have been created by digging. Inside the residence, Izzy indicated the scent of human remains on the bedroom floor where carpet had been removed and on a shower drain in a bathroom.²

¶10 The following day at the residence, Frost's dog, Trixie, alerted to the scent of human remains in the area of some logs and a tarp that law enforcement requested Trixie to search. Frost then brought Trixie into the larger garage, where Trixie alerted on the driver's side foot rest of the ATV and on the attached trailer. Trixie did not indicate the scent of human remains on the pickup truck in the smaller garage. She did, however, alert on the burn barrel, which by that point had been sealed as evidence and placed in a law enforcement trailer in the driveway.³ Once inside the residence, Trixie alerted on the area with the torn-out carpeting.

¶11 On May 10, 2013, two pedestrians discovered Anita's body approximately forty feet east of a highway in Taylor County, near a culvert. The body was in a moderate state of decomposition and had to be identified by dental records. The body had seven "sharp force injuries" to the chest consistent with stabbing by a single-edged knife. The body also had blunt trauma to the neck, which the medical examiner opined was "a classic hallmark for an application of a strangulation hold."

¶12 On the day Anita's body was discovered, law enforcement requested assistance from two individuals with trailing dogs, which are dogs trained to detect and trail the scent of a particular individual.⁴ Joanne Disher, who was a civilian assisting the law enforcement investigation, was the first to arrive with her trained bloodhound, Pollie.⁵ Officers gave Disher a tennis shoe they had taken from Bucki's residence, which the officers said belonged to Bucki. Disher placed a sterile gauze pad in the toe of the shoe for a few minutes, and then introduced Pollie to the law enforcement personnel present at the scene to eliminate their scents, a procedure known as "dismissal." Disher walked Pollie north of the scene, presented her with the gauze scent pad, and issued a "find" command. Disher described how Pollie began on the west side of the road working south, then started "pulling extremely hard" to the east and went down in the culvert area where Anita's body was found. Pollie came out of the culvert, continued walking south on the east side of the road for approximately 140 feet, then turned around and headed north along the road. At that point, Disher was confident that the scent from the shoe was present at the location of Anita's body.

¶13 Vilas County Sheriff's Department detective Louise Horn also brought her bloodhound, Missy, to the area to conduct a trailing investigation. After dismissing the scents of law enforcement officers present, Horn presented Missy with another tennis shoe from Bucki's residence and gave her the "start" command.⁶ Missy "committed to a track," meaning she became focused and started moving forward. Missy started south of barricades that were erected around the crime scene, and then she went north along the east side of...