State v. Flynn, Nos. 93-2532-C

• Court: Court of Appeals of Wisconsin
• Writing for the Court: FINE
• Citation: 527 N.W.2d 343,190 Wis.2d 31
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert FLYNN, Defendant-Appellant. d
• Decision Date: 20 March 1995
• Docket Number: 94-0425-CR,Nos. 93-2532-C

Page 343

527 N.W.2d 343 190 Wis.2d 31 STATE of Wisconsin, Plaintiff-Respondent,
v.
Robert FLYNN, Defendant-Appellant. ^d Nos. 93-2532-CR, 94-0425-CR. Court of Appeals of Wisconsin. Submitted on Briefs Oct. 5, 1994.
Opinion Released Dec. 6, 1994.
Opinion Filed Dec. 6, 1994.
Certiorari Denied March 20, 1995.
See 115 S.Ct. 1389.

Page 346

[190 Wis.2d 38] On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert L. Flynn, pro se.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Mary E. Burke, Asst. Atty. Gen.

Before SULLIVAN, FINE and SCHUDSON, JJ.

[190 Wis.2d 39] FINE, Judge.

Robert L. Flynn appeals pro se from a judgment entered on a jury verdict convicting him of two counts of armed robbery, see § 943.32(1)(a), STATS., and from the trial court's orders denying his motion for post-conviction relief. ¹ We affirm.

Flynn was convicted of the armed robbery of two gas stations in the early morning hours of February 7, 1992. His allegations of trial-court error focus on the trial court's determination that he was arrested lawfully, and on errors that he contended occurred during the trial. They are asserted in eleven separately numbered main arguments. We discuss the ones he has briefed in the order that he has presented them to us. ²

1. Police entry into Flynn's home.

An automobile registered at a West Windlake Street address was implicated in one of the robberies. Police officers converged on the residence, where they [190 Wis.2d 40] ultimately found Flynn. They did not have either a search warrant or an arrest warrant.

One of the responding officers testified at a pre-trial hearing that he knocked on the door of the house on West Windlake Street, that Flynn's wife eventually answered, and that she consented to their entry into her home, which was in the upstairs portion of the two-family residence. According to the officer, they told Mrs. Flynn that they were looking for a white male armed-robbery suspect. The officer testified that Mrs. Flynn said that she owned the car, that she had the only keys, that no one had her permission to drive the car, and that there were no white males in the house. She claimed to be living in the home with only her children and her mother. According to the officer's testimony, Mrs. Flynn also gave them permission to go into the attic, and when they found Flynn there, she told them that she did not know him--commenting that there " 'shouldn't be anyone up there.' "

As the officers were removing Flynn from the attic, he called to his wife: "[D]on't tell the police nothing. Call my attorney." At that point, according to the testimony of the police officers, Mrs. Flynn became "somewhat combative" and "belligerent," and told them to leave. The officers arrested her for disorderly conduct. They took Flynn outside, where he was identified as the robber by one of the victims. He was then arrested.

Mrs. Flynn testified at the suppression hearing. She denied that she consented to

Page 347

the officers' entry into her home and into the attic. The trial court, however, believed the officers' testimony.

Under the applicable standard of review, we uphold the trial court's findings of historical facts [190 Wis.2d 41] unless those findings are clearly erroneous. See State v. Schwegler, 170 Wis.2d 487, 494, 490 N.W.2d 292, 294 (Ct.App.1992). We analyze de novo the legal issue of whether there was a constitutional violation. See ibid. Our analysis is the same whether we apply the Fourth Amendment to the United States Constitution or article 1, section 11 of the Wisconsin Constitution. See State v. Fry, 131 Wis.2d 153, 171-176, 388 N.W.2d 565, 573-575 (1986), cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586.

As the trial court recognized in its well-reasoned oral opinion, under the Fourth Amendment, a warrantless entry and search is presumptively unreasonable. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); State v. Boggess, 115 Wis.2d 443, 448-449, 340 N.W.2d 516, 520 (1983). "It is equally well settled that one of the specifically established exceptions to the [Fourth Amendment] requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043-44. The trial court determined that before her husband was discovered in the attic, Mrs. Flynn was fully cooperative and gave the officers permission to do what they did. These historical facts are not clearly erroneous. The trial court then found that Mrs. Flynn's actions constituted consent for the entry and search. This is a finding of constitutional fact because it requires the " 'application of constitutional principles to the [historical] facts as found.' " See State v. Mazur, 90 Wis.2d 293, 309, 280 N.W.2d 194, 201 (1979) (citation omitted). Although we review independently a trial court's findings of constitutional fact, State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984), habeas corpus granted on other grounds, Woods v. Clusen, 605 F.Supp. 890 (E.D.Wis.1985), aff'd, Woods v. Clusen, 794 F.2d 293 (7th [190 Wis.2d 42] Cir.1986), we agree that the trial court's findings of historical fact lead ineluctably to the conclusion that Mrs. Flynn gave the officers consent to come into her home and to search the attic.

2. Flynn's arrest.

One of the officers responding to the West Windlake address testified that Flynn matched the description of the armed robber given by one of the victims. The officers took Flynn from the house for an on-the-scene identification. This was prudent and permissible police practice. See State v. Wilkens, 159 Wis.2d 618, 626, 465 N.W.2d 206, 210 (Ct.App.1990) (police may detain a suspect for a reasonable period of time); State v. Isham, 70 Wis.2d 718, 723-724, 235 N.W.2d 506, 509-510 (1975) (one-on-one identification soon after crime is " 'entirely reasonable' " and " 'promote[s] fairness, by assuring reliability' " because the " 'memory of the witness [is] still fresh' ") (citations omitted). One of the victims identified Flynn as the armed robber by his voice. According to an officer's testimony, the victim "stated that she wasn't sure as to the identification, but his voice was, because of the accent in his voice, that it sounded just like the guy at the gas station." This, together with the identification of the Flynns' car as the one driven by the robber, gave the officers probable cause to arrest Flynn. See State v. Mitchell, 167 Wis.2d 672, 681, 482 N.W.2d 364, 367 (1992) ("Probable cause refers to the quantum of evidence which would lead a reasonable police officer to believe that the defendant committed a crime."); State v. Cheers, 102 Wis.2d 367, 385-389, 306 N.W.2d 676, 684-686 (1981) (discussing criteria in depth). The arrest was lawful.

[190 Wis.2d 43] 3. Cross examination of Mrs. Flynn at trial.

After Flynn's arrest, the officers found a gun in the house. They did not have a search warrant. The trial court granted Flynn's motion to suppress the gun. Flynn claims that reversal is required because Mrs. Flynn was impeached by the "use" of this suppressed evidence during her cross-examination. We disagree.

Mrs. Flynn testified on direct examination during the course of Flynn's surrebuttal case

Page 348

that she did not sign a statement implicating her husband because the statement "was all lies." During cross-examination, the prosecutor asked Mrs. Flynn the following question: "Do you remember testifying from that same witness chair back on July 27th, 1992, that you were dishonest with the police about something." Mrs. Flynn replied: "One thing.... I was not honest about one thing." ³ Although the underlying reference was to Mrs. Flynn's initial denial that there was a gun in the house, the gun itself was never mentioned. Accordingly, contrary to Flynn's argument, Mrs. Flynn was not impermissibly impeached by the use of suppressed evidence in violation of the rule announced in James v. Illinois, 493 U.S. 307, 320, 110 S.Ct. 648, 656, 107 L.Ed.2d 676 (1990) (suppressed evidence may not be used to contradict the testimony of defense witnesses other than that of the defendant).

4. Alleged mention of suppressed gun during sidebar conference.

[190 Wis.2d 44] Flynn's brief on this appeal claims that during an unrecorded sidebar conference during the trial, "the prosecutor elicited this suppressed evidence [about the gun] within hearing distance" of the jury. In support of this claim, Flynn cites the prosecutor's complaint to the trial court that Flynn's trial counsel was speaking loudly during the sidebar conferences, and was saying things that would prejudice the prosecution. Although the prosecutor told the trial court that Flynn's trial counsel complained during one of these sidebar conferences that the police "tore that house apart looking for a gun," this statement by Flynn's counsel was not elicited by the prosecutor. Further, the clear import of that statement, if heard by the jury, was that no gun was found because none was introduced during the trial. Flynn also points to what purports to be a transcript of a telephone conversation Mrs. Flynn had with one of the jurors after the trial, and attested to by the juror in an affidavit. In that statement, the juror asserts that the jury discussed a gun during the course of their deliberations. The transcript/affidavit does not, however, indicate that the gun was improperly brought to the jury's attention during the course of the trial:

[Mrs. Flynn]: Well, Mr. Tump, I did not sit through the trial because I was sequestered, but the gun found in my home was suppressed evidence, so I am curious as to how that information got to the jurors.

Mr. Tump: Well, you are right--I don't remember anything about a gun being argued about at the trial, but--somehow it was an issue and it did become a matter for us to...