State v. Gil

• Decision Date: 05 February 1997
• Docket Number: No. 95-3347-CR,95-3347-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Rolando A. GIL, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 760

561 N.W.2d 760

208 Wis.2d 531

STATE of Wisconsin, Plaintiff-Respondent, v. Rolando A. GIL, Defendant-Appellant. ^d

No. 95-3347-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 22, 1997.

Opinion Released Feb. 5, 1997.

Opinion Filed Feb. 5, 1997.

[208 Wis.2d 533] On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul LaZotte of Legal Assistance Program of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Marguerite M. Moeller, Assistant Attorney General.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

BROWN, Judge.

Waukesha county drug agents set up an undercover operation and were listening in the next room when Rolando A. Gil tried to

rob and kill their informant. Even though the drug agents had their informant's consent to make a recording of the transaction, the electronic surveillance law in effect at that time stated that one-party consent recordings could only be used to prove drug charges, not the attempted robbery and homicide that the agents inadvertently captured on their tapes. We conclude that a literal interpretation of the surveillance law would frustrate the legislature's intent. We adopt the rule followed in other jurisdictions that permits the government to use surveillance evidence which falls within the "plain hearing" of law enforcement officers who are conducting otherwise authorized surveillance.

INTRODUCTION

The State charged Gil with drug conspiracy and as a party to the crimes of attempted robbery and attempted homicide for his involvement in the undercover drug sale. Although Gil has entered an Alford ¹ plea to the attempted homicide charge, and the other two counts have been dismissed, this appeal concerns the trial court's evidentiary ruling that permitted the State to use the one-party consent recordings to prove all three charges, not just the drug charge as the surveillance law explicitly authorizes. In this appeal, Gil hopes for a reversal of this evidentiary ruling and the opportunity for a trial.

BACKGROUND

We have gathered the facts regarding the events leading to the failed drug transaction from the complaint. While Gil maintains his innocence on the merits of the State's charges, Gil does not contest the State's version of why and how the drug agents set up their undercover operation. Moreover, Gil stipulated that the drug agents had their informant's consent to record the undercover drug transaction.

A detective from the Waukesha County Metropolitan Drug Enforcement Unit had an informant. On July 13, 1994, the informant told the detective that he had targeted someone interested in purchasing between five and ten pounds of marijuana. Three days later, the detective listened in as the informant called the target and arranged to meet the target at a local motel. The informant planned to sell the target between five and ten pounds of the drug at $800 per pound.

On July 18, the detective and other drug agents rented two adjoining motel rooms. They told the informant to use one room for the transaction. The drug agents then set up a variety of electronic monitoring equipment in the other.

The target arrived at about 4:00 p.m. As the drug agents monitored the conversation, the target and the informant finalized the terms of the transaction. The target said that he would return around 7:00 p.m. with the money and that he might bring a friend to help him. That friend turned out to be Gil. The informant responded that he would be waiting with the marijuana.

The drug agents watched and waited as the target and Gil came back early that evening. After the target and Gil entered the room, the agents heard over their equipment a command to "get on the floor, get on the floor" and suspected that their informant was being robbed.

Although the agents tried to get into the room and surprise the target and Gil, the door had been dead bolted and one of the people inside was leaning against it. The agents then heard a gunshot and announced their presence. They heard several more gunshots before they were able to force themselves into the room and arrest the target and Gil.

According to the informant, when the target and Gil entered the room, Gil was holding a handgun, and they both told him to get on the floor and asked where the marijuana was. When Gil went to the bathroom to look for the marijuana, however, the informant was able to leap up and grab Gil from behind. After some struggle, Gil threw his handgun to the target, who took two shots at the informant. One hit the informant's hand and the other struck him in the chest.

The State subsequently filed a three-count information against Gil in September 1994. It charged him with being a party to the

                crime of attempted first-degree homicide with a dangerous weapon.  See §§ 939.05, 939.32, 940.01(1) and 939.63(1)(a)2, STATS.   [208 Wis.2d 536] The State also brought a charge of attempted armed robbery, as a party to the crime.  See §§ 939.05, 939.32 and 943.32(2), STATS.   Finally, the State included a charge of conspiring in the possession of marijuana with the intent to deliver.  See §§ 161.41(1x) and 161.41(1m)(h)3, STATS., 1993-94
                

THE TRIAL COURT'S EVIDENTIARY RULING

During pretrial proceedings, Gil and the State each took steps pertaining to the drug agents' surveillance evidence. The State filed notice of its intent to use the tape recordings of the aborted drug transaction pursuant to § 971.23(9), STATS., 1993-94. Gil moved for an in limine order excluding this evidence; he alleged that it was inadmissible under Wisconsin's Electronic Surveillance Law. The trial court entertained these issues at a hearing on November 11, 1994.

Gil based his evidentiary challenge to these recordings on the surveillance law which he alleged deemed them inadmissible. He did not raise any constitutional objection to the use of the tapes before the trial court, nor does he make any such claim on appeal. Moreover, Gil conceded before the trial court that the surveillance law permitted the State to use the tapes as proof on its one drug-related count.

However, the surveillance law then in effect, § 968.29(3)(b), STATS., 1993-94, stated that law enforcement could only use one-party consent recordings if the defendant was "accused of any act constituting a felony under ch. 161 or s. 939.30 or 939.31." ² Thus, Gil claimed that the State was barred from using the tapes to prove the robbery and homicide counts.

The State did not directly dispute Gil's interpretation of the statute. Instead, it pointed to the facts of the case and explained that proving its drug conspiracy charge required evidence regarding the entire transaction. The State argued that Gil's involvement in the drug conspiracy necessarily included proof of his involvement in the attempted robbery and homicide and thus the surveillance evidence, from a practical standpoint, could not be confined to only the drug charge.

Although the trial court ultimately ruled that the tape recordings were admissible on all three counts, it did not adopt the State's position. The trial court's analysis starts with the background of the investigation. Here, the court found that the investigation was "solely geared" towards stopping drug activity. The trial court thus determined that the drug agents' plan to use one-party consent recordings to gather proof that Gil was involved in drug activity was sanctioned under the surveillance law. See § 968.29(3)(b), STATS., 1993-94; see also § 968.31(2)(b), STATS.

The trial court then turned to specific circumstances relating to how the drug agents inadvertently captured the evidence of Gil's other criminal activity. While the court acknowledged that the surveillance law says that the State can use one-party consent surveillance evidence to prove any crime if it secures prior judicial authorization to gather evidence in this manner, see § 968.28, STATS., the court reasoned that the particular circumstances of this case would have made it impossible for the police to get authorization because they were given no indication that their undercover drug sale would so quickly devolve into an attempted robbery and homicide. And while the trial court also acknowledged that the precedent, specifically State ex rel. Arnold v. County Court, 51 Wis.2d 434, 187 N.W.2d 354 (1971), seemed on its face to strictly prohibit the State from using one-party consent surveillance when it did not have prior judicial approval, the court attempted to distinguish Arnold because it was not a "drug case." The trial court's decision to admit this evidence is perhaps best summarized by its observation that law

enforcement should not be made to "suffer the consequences" of losing evidence from otherwise authorized surveillance because the defendant commits "additional criminal folly."

STANDARD OF REVIEW

When we face a challenge to a trial court's evidentiary ruling, as Gil presents, we generally inquire whether the trial court misused its discretion. See State v. Rogers, 196 Wis.2d 817, 829, 539 N.W.2d 897, 902 (Ct.App.1995). In such an analysis, we determine if the trial court applied the proper legal standard to the facts and if it did so in a logical manner. See id. In this case, however, Gil raises no objection to the trial court's factual analysis. Rather, he claims only that the trial court misinterpreted Wisconsin's surveillance law. We therefore owe no deference to the trial court's ultimate conclusion to admit this evidence because its interpretation of a statute is subject to de novo appellate review. See DOR v. Milwaukee Brewers Baseball Club, 111 Wis.2d 571, 577, 331 N.W.2d 383, 386 (1983).

WISCONSIN'S ELECTRONIC SURVEILLANCE LAW

We begin our analysis of Wisconsin's Electronic Surveillance Law with the legislative history surrounding its initial passage. See Laws of 1969, ch. 427. According to the written analysis compiled by then attorney...