State v. Gill
| Decision Date | 06 April 2023 |
| Docket Number | 2022AP654-CR |
| Parties | STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. ANTWAN EUGENE GILL, DEFENDANT-APPELLANT. |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
Appeal from a judgment and an order of the circuit court for Monroe County: No. 2017CM172 Todd L. Ziegler, Judge. Affirmed.
¶1 Antwan Gill appeals a judgment of conviction for possession of tetrahydrocannibinol (THC) and for operating a motor vehicle with a detectable amount of THC in his blood, as well as a circuit court order denying his motion for postconviction relief. Gill asserts that his trial counsel was ineffective for failing to file a pretrial motion to suppress evidence obtained during a traffic stop, and for failing to more effectively cross-examine the state trooper who conducted the stop at trial. I conclude that trial counsel was not ineffective, and therefore, I affirm.
¶2 Following a traffic stop, Gill was arrested for operating a motor vehicle while intoxicated (OWI)[2] and for possession of THC. Gill pled not guilty to these charges, and his case proceeded to a jury trial. After he was convicted, Gill filed a postconviction motion, the circuit court held a Machner hearing,[3] and the court denied his motion. The following summary of facts is derived from the trial evidence and the evidence introduced during the Machner hearing, which includes the testimony, the police report, and squad-camera footage of the traffic stop.
¶3 Shortly before 4:00 a.m. on a Friday morning, the officer in question stopped the vehicle Gill was driving after he observed it moving at a rate of 84 miles per hour in a 70 mile per hour zone. The officer approached the passenger side door of the vehicle. He later wrote in his report that, as Gill's passenger rolled down her window, he "detect[ed] a faint and transient odor consistent with the odor of burned marijuana." At trial, the officer testified that he "briefly detected a faint and transient odor which smelled like raw marijuana and burned marijuana, but it was very brief, kind of as the wind swirled."
¶4 The officer asked Gill for his driver's license and learned that it had been revoked. He returned to his squad car and wrote a citation for operating without a license and a warning for speeding.
¶5 After the officer returned to Gill's vehicle, he noticed a rolled cigarette in the cup holder between Gill and his passenger that was consistent in appearance with a burned marijuana cigarette, sometimes referred to as a "roach." Gill handed it to the officer, and the officer observed that it contained a small amount of a burned and raw substance consistent with the appearance and odor of marijuana. He remarked that "it looks kind of like a roach" and asked Gill when he last smoked. Gill said he did not know, and that the marijuana cigarette was "old as hell."
¶6 The officer directed Gill to step out of the vehicle and conducted a pat-down search of his outer clothing.[4] The officer later indicated in his police report and at trial that he detected a light odor of an intoxicating beverage when he was standing downwind from Gill. The officer told Gill to sit in his squad car, stating that "no one is under arrest." The officer then asked the passenger to exit the vehicle and patted her clothing down. After the officer asked whether there was "anything else" in the vehicle, the passenger indicated that the cooler in the backseat contained alcoholic beverages. The officer remarked that he could "smell weed on [the passenger's] breath" and asked if she had smoked marijuana that day. The passenger responded that she does not smoke marijuana and blew towards the officer so that he could smell her breath. The officer indicated that he did not smell marijuana on her breath, and he suggested that the smell might be "coming from the car or … from the roach" that he had placed in his pocket. He then directed the passenger to sit in his squad car, again stating that "no one is under arrest."
¶7 The officer proceeded to search Gill's vehicle, locating an open and partially consumed bottle of whiskey within reach of the driver's seat. When a second trooper arrived on the scene, the officer was recorded telling his colleague that he had found a "roach" in the cup holder, that the officer "didn't smell anything except cigarettes and air freshener," that he was going to "put [Gill] through field [sobriety testing]," and that he was going to give the passenger a preliminary breath test "because she's the only valid driver."
¶8 The officer continued searching the vehicle and discovered a second rolled cigarette that smelled of burned marijuana. He later wrote in his police report that he found the second cigarette in a compartment in the armrest of the driver's side door. At trial, he initially testified he found it by the passenger floorboard but, upon having his recollection refreshed by his report, he testified that "[i]t appears" he had reported that the second marijuana cigarette "was in the driver's door pocket."
¶9 Following the vehicle search, the officer asked Gill to step out of the squad car and the two began talking. The officer asked about the bottle of whiskey, and Gill indicated it was "an old bottle." The officer told Gill that it was illegal to have "open containers in the car," and that the bottle had been "in perfect reach [of] the driver." Gill denied that he had been drinking that night. The officer indicated that he was going to do some tests, and he asked, "when's the last time you smoked?" Gill responded that it was "probably yesterday" and estimated that it had been around midnight the day before. When the officer sought clarification, Gill indicated that he meant that it had been more than 24 hours since he last smoked.[5]
¶10 The officer then subjected Gill to field sobriety testing and he determined that Gill exhibited signs of impairment. The officer placed Gill under arrest, and Gill consented to having his blood drawn for chemical testing. The State tested Gill's blood sample, and the results indicated that Gill's blood contained a detectable amount of delta-9 THC, which is the active ingredient in marijuana. The State also tested one of the cigarettes seized from Gill's vehicle, which also tested positive for THC.
¶11 The State charged Gill with one count of possession of THC in violation of Wis.Stat. § 961.41(3g)(e), and one count of operating a motor vehicle while intoxicated in violation of Wis.Stat. § 346.63(1)(a). The State later filed an amended complaint, adding a third criminal count of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood in violation of § 346.63(1)(am). The State issued Gill traffic citations for driving with a suspended license and with an open container of intoxicants.
¶12 Gill's case proceeded to a two-day jury trial. At the trial, the State's witnesses included the officer who conducted the traffic stop and searched Gill's vehicle, and it introduced into evidence the portions of the officer's squad-camera footage during which the officer administered field sobriety testing. The State also presented testimony from, among others, the chemist who tested Gill's blood for the presence of THC and the forensic scientist who tested the contents of one of the cigarettes seized from the vehicle, and it introduced the lab results and a portion of the officer's police report as exhibits.
¶13 The focus of Gill's defense was on attacking the charge of operating while under the influence of a restricted controlled substance. Trial counsel noted that the traffic stop had lasted more than 40 minutes before the officer asked Gill to perform field sobriety tests, and that, up until that point, the officer had not observed any signs of impairment. Counsel extensively cross-examined the officer about whether field sobriety testing is effective at detecting marijuana impairment, as well as the officer's "process" for evaluating the results of such testing. Counsel emphasized that the amount of THC detected in Gill's blood was just above the reporting threshold, and that the chemist who tested Gill's blood could not testify as to when Gill had last consumed marijuana or whether he was impaired.
¶14 Trial counsel's strategy did not appear to fundamentally challenge the possession of marijuana charge or the charge of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood. At most, counsel emphasized that the officer had smelled marijuana on Gill's passenger and not on Gill, and he cross-examined the chemist about the reporting threshold for THC.
¶15 The jury found Gill guilty of possessing THC, and of operating a motor vehicle with a detectable amount of THC in his blood. It acquitted Gill of the charge of operating a motor vehicle while under the influence of a controlled substance.
¶16 Following his conviction, Gill filed a motion for postconviction relief alleging ineffective assistance of counsel. Gill alleged that trial counsel was ineffective for failing to file a pretrial motion to suppress evidence regarding the field sobriety tests and the chemical testing of Gill's blood. Gill also alleged that the officer's statements and actions at the scene, as captured on the squad-camera footage, were inconsistent with the statements in his police report and his testimony at trial regarding the odors the officer smelled during the stop. Gill argued that trial counsel had been ineffective for failing to more effectively bring out these alleged inconsistencies during trial.
¶17 The circuit court held a Machner hearing. Trial counsel testified that he had not filed a motion to...
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