State v. Cannon

• Decision Date: 25 May 2021
• Docket Number: Appeal No. 2019AP2296-CR
• Citation: 962 N.W.2d 267 (Table),2021 WI App 41
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Billy Joe CANNON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

962 N.W.2d 267 (Table)

2021 WI App 41

STATE of Wisconsin, Plaintiff-Respondent,

v.Billy Joe CANNON,^† Defendant-Appellant.

Appeal No. 2019AP2296-CR

Court of Appeals of Wisconsin.

May 25, 2021

DONALD, J.

¶1 Billy Joe Cannon appeals from a judgment convicting him of conspiracy to deliver cocaine as a second and subsequent offender, conspiracy to possess with the intent to deliver marijuana as a second and subsequent offender, and furnishing a firearm to an unauthorized person as a party to a crime. Cannon also appeals an order denying his postconviction motion. Cannon argues that the conspiracy to deliver cocaine charge violates his constitutional rights against double jeopardy and that the wiretap recordings used to convict him of furnishing a firearm to an unauthorized person should have been suppressed. We reject his arguments and affirm.

BACKGROUND

¶2 In 2009, the State charged Cannon with three counts: (1) conspiracy to deliver cocaine in an amount greater than forty grams on November 10, 2005, as a party to a crime; (2) possession of a firearm by a convicted felon on October 16, 2008; and (3) furnishing a firearm to a convicted felon on October 16, 2008, as a party to a crime. The conspiracy charge was severed from the two firearm charges for the purposes of trial.

¶3 In 2011, Cannon went to trial on the conspiracy charge.¹ At trial, the State alleged that Cannon was part of a conspiracy to deliver cocaine on November 10, 2005, involving cocaine supplier "Hot Rod" Smith and Cannon's customers, Jerald McGhee and Lamont Powell, at Cannon's rental property on 47th Street in Milwaukee. The jury found Cannon not guilty. Subsequently, Cannon entered a guilty plea to the possession of a firearm by a convicted felon charge and the furnishing a firearm to a convicted felon charge was dismissed and read in.

¶4 Approximately six weeks after the trial on the conspiracy charge, the State filed new charges against Cannon. The charges were as follows: (1) conspiracy to deliver cocaine in an amount greater than forty grams "between on or about March 4, 2008 and on or about March 24, 2008," as a party to a crime; (2) one count of conspiracy to possess THC in an amount greater than 10,000 grams "between on or about February 2008 and on or about October 2008," as a party to a crime; and (3) one count of knowingly furnishing a firearm to a convicted felon "on or about Thursday, April 3, 2008," as a party to a crime.²

¶5 Pre-trial, Cannon filed a number of motions including a motion to dismiss the new conspiracy charge as a violation of Cannon's right to be free from double jeopardy and a motion to suppress wiretap evidence. The circuit court rejected both challenges.

¶6 In 2014, Cannon went to trial on the new charges.³ Pertinent to this appeal, at trial, the State argued that beginning on March 4, 2008, and ending around March 24, 2008, at Cannon's house on Nash Street in Milwaukee, Cannon was a member of a conspiracy to deliver cocaine involving cocaine supplier Eraclio Varala⁴ and customer Damone Powell.⁵ The State also argued that Cannon arranged for the transfer of a firearm to Jimmy Hayes through two convicted felons, Anthony Turnage and Carl Page. A jury found Cannon guilty as charged. Cannon was sentenced to a total of sixteen years of initial confinement followed by fourteen years of extended supervision.

¶7 Postconviction, Cannon moved for a new trial. The circuit court ordered all postconviction documents to be filed under seal. After briefing, the circuit court denied Cannon's motion without an evidentiary hearing. The circuit court rejected Cannon's renewed double jeopardy challenge to the 2011 conspiracy charge concluding that "the offenses may have been the same, but they were not the same in fact[.]" Additionally, the circuit court rejected Cannon's argument that trial counsel was ineffective for failing to sufficiently argue for suppression of the wiretap recordings of the firearm transaction.

¶8 This appeal follows. Additional relevant facts will be referenced below.

DISCUSSION

I. Double Jeopardy Violation

¶9 Cannon argues that his right to be free from double jeopardy was violated because the 2009 conspiracy charge and the 2011 conspiracy charge were actually a single "continuous conspiracy" to deliver cocaine. In support, Cannon emphasizes that both charges stem from a single investigation, which was completed prior to his first trial. The issue, however, is not whether there was a single investigation, but whether there was a single conspiracy. We conclude that there was not a single conspiracy. Rather, we agree with the State that Cannon was involved in two separate and distinct conspiracies.

¶10 The double jeopardy clause in the United States Constitution states that no person shall "be subject for the same offence to be twice put in jeopardy[.]" U.S. CONST. amend. V. Likewise, the Wisconsin Constitution provides that "no person for the same offense may be put twice in jeopardy of punishment[.]" WIS. CONST. art. I, § 8. The United States and Wisconsin double jeopardy clauses are identical in scope and purpose. State v. Davison , 2003 WI 89, ¶18, 263 Wis. 2d 145, 666 N.W.2d 1.

¶11 Whether a defendant's constitutional right to be free from double jeopardy has been violated is a question of law that we review de novo. State v. Harris , 190 Wis. 2d 718, 722, 528 N.W.2d 7 (Ct. App. 1994).

¶12 To determine whether a double jeopardy violation has occurred, the State argues that we should apply Blockburger v. United States , 284 U.S. 299 (1932). Pursuant to the Blockburger test, two prosecutions violate the double jeopardy clause when the offenses are "identical in the law and in fact." See State v. Schultz , 2020 WI 24, ¶22, 390 Wis. 2d 570, 939 N.W.2d 519 (citation omitted).

¶13 The State here concedes that the 2009 conspiracy charge and the 2011 conspiracy charge are identical in law. We agree with the State's concession and turn to the second part of the Blockburger test—whether the charges are identical in fact.

¶14 "Offenses are not identical in fact when ‘a conviction for each offense requires proof of an additional fact that conviction for the other offense[ ] does not.’ " Schultz , 390 Wis. 2d 570, ¶22 (citation omitted). Offenses also are not identical in fact when "they are different in nature or separated in time." Id.

¶15 To support his argument that his right to be free from double jeopardy was violated, Cannon argues that a "strict application of the factual inquiry under Blockburger [is] inappropriate" and we should look at the analysis in double jeopardy cases involving conspiracies, such as United States v. Castro , 629 F.2d 456 (7th Cir. 1980).

¶16 We agree with Cannon that Castro is instructive in this case, but we conclude that Cannon does not prevail under Castro . In Castro , the Seventh Circuit stated that to determine whether a conspiracy has been subdivided arbitrarily, courts should look to "both the indictments and the evidence and consider such factors as whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the two conspiracies depend on each other for success." Id. at 461. Subsequent Seventh Circuit cases have also looked at whether two charges "share similar objectives or modus operandi[,]" and note that when evaluating the factors, a totality of the circumstances test is used. See e.g. , United States v. Sertich , 95 F.3d 520, 524 (7th Cir. 1996). Additionally, in a post-trial double jeopardy review, "the defendant alone bears the burden[.]" United States v. Dortch , 5 F.3d 1056, 1060 (7th Cir. 1993).

¶17 In United States v. Thornton , the Seventh Circuit also indicated that,

[d]eciphering what constitutes prosecution for the same offense for purposes of double jeopardy is not an easy task. And, the Supreme Court and this court have recognized that this task becomes even more difficult when we move from single layered crimes such as bank robberies to prosecution for multilayered crimes such as conspiracies which expand over time and place. The reason for the added complexity is that it is difficult to apply double jeopardy's notions of finality to crimes which have no easily discernable boundaries with regard to time, place, persons, and objectives.

Id. , 972 F.2d 764, 765 (7th Cir. 1992) (citations omitted).

¶18 In Thornton , the court then stated that,

[i]n Castro we held that the double jeopardy clause prohibits the government from arbitrarily subdividing one conspiracy into several and then prosecuting a person multiple times for what essentially constitutes one conspiracy. The rationale underlying this proposition is simple: the double jeopardy clause prohibits multiple prosecutions for the same offense, and because the agreement is the sine qua non of conspiracy, if the government twice prosecutes an individual under the same statute for what essentially constitutes one agreement, this must constitute prosecution for the same offense in violation of double jeopardy.

Id. at 766 (citation omitted).

¶19 Here, an examination of the totality of the circumstances does not support the existence of a single continuous conspiracy. While the 2009 conspiracy charge and the 2011 conspiracy involved a similar overt act (a cocaine transaction),⁶ the remainder of the factors do not support the existence of a single continuous conspiracy.

¶20 First, there is not an overlap in dates between the two conspiracy charges. The 2009 charge alleged that a conspiracy took place on November 10, 2005, whereas the 2011 charge alleged that a conspiracy took place from approximately March 4, 2008, to March 24, 2008. See Dortch , 5 F.3d at 1062 (observing that the court has "found a single conspiracy only when the dates charged in the indictments actually overlapped").⁷

¶21 Second, the charges involved different co-conspirators. The 2009 conspiracy charge allegedly involved cocaine supplier "Hot Rod" Smith and customers Jerald McGhee and Lamont Powell. The 2011...