State v. Hand
| Decision Date | 02 January 2019 |
| Docket Number | Appeal Nos. 2017AP764-CR,2017AP765-CR |
| Citation | 926 N.W.2d 500 (Table),2019 WI App 8,385 Wis.2d 846 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brandon J. HAND, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Brandon J. Hand appeals pro se from judgments of convictions in two drug cases and from the order denying his motion for postconviction relief. We affirm.
¶2 Both of Hand’s drug cases involved the assistance of a confidential informant (CI). In his 2009 case, a CI told Racine Police Investigator Alfred Fellion that Hand was selling drugs out of his vehicle, a Dodge Durango with license plate 967NFC in a particular area of Racine. The tag matched a 1999 Dodge Durango registered to Hand. Fellion passed the information on to Officer Michael Ditscheit.
¶3 Ditscheit and Officer Christopher Blackmore located the vehicle in the described area and effected a traffic stop. Blackmore and Ditscheit approached the driver’s and passenger’s sides, respectively. Blackmore ordered Hand to exit the car for the officers' safety, knowing the connection between drugs and guns. Hand remained seated, repeatedly asking why he had been stopped. Seeing Hand move his hand toward the gear shift, Blackmore, concerned Hand meant to drive off, ordered him to exit or he would be tased. Hand then complied. When the vehicle doors opened, the officers detected a "strong" odor of burnt marijuana. In the ensuing warrantless search, they found cocaine, marijuana, a semiautomatic handgun, and $700 in small-denomination bills. Hand unsuccessfully moved to suppress the evidence, contending the officers had neither reasonable suspicion to stop his vehicle nor probable cause to search it.
¶4 In Hand’s 2011 case, a CI bought crack cocaine from Hand in two controlled buys. The 2009 and 2011 cases were handled together for Hand’s pleas and sentencing. He pled guilty in the 2009 case to possession of a firearm by a felon and possession of cocaine with intent to deliver, both as a repeater, and, in the 2011 case, to delivery of cocaine and felony bail jumping. The court sentenced him to an aggregate sentence of ten years' initial confinement and ten years' extended supervision.
¶5 Postconviction, Hand, acting pro se, asserted that the circuit court erred in denying his motion to suppress evidence in his 2009 case; that, in his 2011 case, trial counsel was ineffective for not moving to suppress video surveillance recordings the CI made of the drug buys; and that in both cases the State breached the plea agreement. He also contended that DNA surcharges were improperly imposed and that the court relied on improper sentencing factors.
¶6 The circuit court agreed with Hand in regard to the DNA surcharges. Hand now appeals the order only in regard to the motion-to-suppress and ineffectiveness claims. The cases were consolidated for appeal.
¶7 Hand first argues that he was denied his right to present a defense because the court did not ensure that all six witnesses he wanted to have testify at the postconviction motion hearing were subpoenaed.
¶8 A defendant’s constitutional right to present a defense to a criminal charge, see U.S. CONST. amend. VI and WIS. CONST. art. I, § 7, is fundamental and essential to "assur[ing] both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi , 410 U.S. 284, 302 (1973) ; State v. Scheidell , 227 Wis. 2d 285, 293-94, 595 N.W.2d 661 (1999). Hand’s guilt was determined by his choice to plead guilty. The right does not extend to a postconviction motion hearing.
¶9 The circuit court thus had the discretion whether to issue subpoenas on Hand’s behalf. See WIS. STAT. § 885.01(1) (2015-16) (a judge may issue a subpoena).1 It subpoenaed Fellion, Ditscheit, Blackmore, and Hand’s defense counsel. Ditscheit, Blackmore, and defense counsel appeared. The court found Fellion to be unavailable, as he had retired and moved and could not be located.
¶10 Hand also wanted the court to subpoena Assistant District Attorney Sharon Riek, who prepared and notarized the affidavit Fellion signed regarding the CI’s tip and Jeannie Skaarnes, the Presentence Investigation (PSI) report writer who, Hand claimed, prepared an inaccurate PSI. The court declined. It explained that it was for it to "construe whether they're relevant or not relevant or needed or not needed[,] ... the [witnesses] that are right to the core of your claims have been produced," giving Hand "full opportunity" to question them, that it accepted Hand’s representations that the PSI was not wholly accurate, and that Hand failed to persuade it that the affidavit Riek drafted was fraudulent or false.
¶11 Nonetheless, Hand alleges that Riek’s testimony was necessary to show that the affidavit contained falsehoods and that, without her or Fellion’s testimony, "the State had no way of proving" that Fellion received a tip from a CI and communicated it to Ditscheit. He argues that Skaarnes' testimony would have shown that the PSI contained numerous inaccuracies and that she was not a neutral agent, as she was acquainted with Riek and was Hand’s Probation and Parole Officer (P.O.) in another of his active cases.
¶12 First, Hand, not the State, bore the burden at the postconviction hearing. Second, the postconviction hearing was not an opportunity to relitigate the merits of the 2009 suppression motion.
¶13 Like the circuit court at the postconviction motion hearing, we, too, review only whether the trial court erred in denying it. Testifying to the information in the affidavit at the suppression hearing, Fellion testified that prior information from the CI had proved accurate and led to multiple arrests. The circuit court’s finding that Fellion received a reliable tip and communicated it to Ditscheit is not clearly erroneous and its determination not to subpoena Riek and Skaarnes was well within a proper exercise of discretion.
¶14 Hand next complains that the circuit court erred in denying his motion to suppress because the stop and warrantless search were illegal. A valid investigatory traffic stop requires that an officer have reasonable suspicion that the person stopped has committed, or is about to commit, a law violation. State v. Colstad , 2003 WI App 25, ¶11, 260 Wis. 2d 406, 659 N.W.2d 394. The suspicion must be based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion" on a citizen’s liberty. Terry v. Ohio , 392 U.S. 1, 21 (1968). What is reasonable in a given situation depends upon the totality of the circumstances. See State v. Waldner , 206 Wis. 2d 51, 56-58, 556 N.W.2d 681 (1996). Individual facts that may be insufficient when viewed alone may amount to reasonable suspicion when taken together. Id. at 58.
¶15 Whether reasonable suspicion exists is a question of constitutional fact to which we apply a two-step standard of review. State v. Powers , 2004 WI App 143, ¶6, 275 Wis. 2d 456, 685 N.W.2d 869. We will uphold a circuit court’s findings of historical fact unless they are clearly erroneous. Id. Based on those facts, we review de novo whether a reasonable suspicion justified the stop. Id.
¶16 After Fellion, Ditscheit, and Blackmore testified at the suppression hearing, the court made the following findings. Fellion received a call from the CI, who named Hand by name, said there were multiple bags of marijuana in Hand’s vehicle, and gave details regarding the vehicle’s make and model, license plate, and area of travel. Based on the information and having worked with the CI before, Fellion believed the CI was calling shortly after observing Hand. The described vehicle and tag checked out as being registered to Hand. Fellion relayed the information to Ditscheit. Ditscheit and Blackmore located the described vehicle in the specified area. "In some circumstances, information contained in an informant’s tip may justify an investigative stop." State v. Rutzinski , 2001 WI 22, ¶17, 241 Wis. 2d 729, 623 N.W.2d 516.
¶17 In addition, Fellion stated in a later affidavit that the CI had supplied information leading to at least four other arrests within the past year and involving at least fifteen other drug dealers that on each occasion law enforcement verified as correct. A CI may be deemed more trustworthy if he or she has previously provided truthful information. See State v. Paszek , 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971).
¶18 The court concluded that the officers had reasonable suspicion justifying the stop of the vehicle. We agree. The court’s findings are not clearly erroneous. The officers had reasonable suspicion to effect the investigatory stop.
¶19 Hand also asserts that the officers lacked probable cause to search the vehicle. "The warrantless search of an automobile is justified when the police have probable cause to believe that an automobile, found in a public place, contains evidence of a crime ...." State v. Caban , 210 Wis. 2d 597, 607, 563 N.W.2d 501 (1997). The court found probable cause because the officers smelled a strong odor of burnt marijuana when Hand and his passenger opened the doors to exit. "The unmistakable odor of marijuana coming from an automobile provides probable cause for an officer to believe that the automobile contains evidence of a crime," and, therefore, probable cause to search it. State v. Secrist , 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999).
¶20 Hand launches numerous attacks against the court’s conclusion. He contends he was not defying Blackmore’s orders to exit but simply was asking why he had been stopped. He asserts that, under Brendlin v. California , 551 U.S. 249 (2007), he had a constitutional right to challenge the stop before getting out. Hand misreads Brendlin . The issue there was whether a passenger is seized during a traffic stop and thus can challenge the stop—but by a motion to suppress evidence in court, not at the site. Id. at 251. Hand also asserts that, if the odor was "str...
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