State v. Harrell

• Decision Date: 27 October 2010
• Docket Number: No. 2009AP2831-CR.,2009AP2831-CR.
• Citation: 329 Wis.2d 480,791 N.W.2d 677,2010 WI App 132
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jacquese Franklin HARRELL, Defendant-Appellant.FN† FN† Petition for Review
• Court: Wisconsin Court of Appeals

329 Wis.2d 480

791 N.W.2d 677

2010 WI App 132

STATE of Wisconsin, Plaintiff-Respondent,

v. Jacquese Franklin HARRELL, Defendant-Appellant.^FN†FN† Petition for Review

No. 2009AP2831-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 3, 2010.

Opinion Filed Aug. 24, 2010.

Petition for Review Denied Oct. 27, 2010.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael S. Holzman of Rosen and Holzman Ltd., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Warren D. Weinstein, assistant attorney general.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

FINE, J.

¶ 1 Jacquese Franklin Harrell appeals the judgment entered on jury verdicts convicting him of first-degree reckless homicide while armed, see Wis. Stat. §§ 940.02(1) & 939.63, and unlawfully possessing a firearm although a convicted felon, see Wis. Stat. § 941.29, in connection with the shooting of Victoria Jackson in the early morning of October 20, 2007. He also appeals the circuit court's order denying his motion for postconviction relief. ¹ Harrell claims that the trial court erred in denying his motion to suppress a gun tied to Jackson's death, and, also, that his trial lawyer ineffectively represented him. We disagree, and affirm.

I.

¶ 2 Jackson died when she was shot while driving a van. The State alleged that Harrell shot her, and presented the following evidence.

• John David, one of Harrell's friends, testified that he and Harrell were at a Milwaukee nightspot, then called Remedies but previously known as Magnolia's, when they left the club onOctober 20th at the 2 a.m. closing in the car David was driving, a Monte Carlo. Harrell was sitting in the front passenger seat. Suddenly, David heard one or two shots coming from inside his car. He looked over at Harrell and saw that Harrell had a gun in his hand. Although David testified that he did not remember in what hand Harrell held the gun, he had previously told a Milwaukee police detective that the gun was in Harrell's right hand. Additionally, although David denied it at the trial, he also told the detective that after the shots, he saw in his rear-view mirror and to his right, a van that was in the right-passenger lane, and that he saw the van swerve. The van, which then crashed into a light pole, was the van Jackson was driving when she was shot.

• One of Jackson's friends, Santana Walker, testified that she spoke with Harrell at around 3:30 a.m. on October 20th, when he called her on her cell phone and asked to get together. Ultimately, they wound up at a house on 25th Street and Burleigh Avenue, where Harrell was "house sitting" for a friend. Walker testified that while at the house with Harrell, she heard Harrell tell a person whom she could not identify: "I was at [Remedies/Magnolia's] or whatever and I shot an innocent bystander." (Walker's phrasing.) She also agreed with the prosecutor that she had earlier told a police detective that, as phrased by the prosecutor, Harrell had said that some people outside of the club "tried to get beastly with him." She denied telling the detective, however, that Harrell said that he then pulled a gun and started shooting. The detective testified to the contrary:

Basically she explained that he had been at—I believe it was the old Magnolias and that when hecame outside that there was some type of—got into an argument with some other males and that he used the word beastly. We kind of clarified what that word meant. She said like they were getting ready to fight. Before anyone could physically fight, he took out a gun and fired and that an innocent bystander was shot.

• Antwain Childs, another of Harrell's friends, was also staying at the house on 25th and Burleigh. He testified that Harrell went out on the night Jackson was shot, and that before he left he saw Harrell take a gun with him. Childs said it was "[a] nine." He identified the gun tied to Harrell as the gun he saw Harrell take with him. Childs also told the jury that some time around 3 a.m., Harrell returned to the house with "John," who was driving a Monte Carlo; Harrell told Childs that something had gone terribly wrong:

Q. And did you tell Detective [David] Salazar that [Harrell] said cuz, I think I fucked up. I was telling cuz that you all ain't no killers and I let my window down and took my gun and got to shooting, boom, boom, boom, and a van had an accident?

A. Yep.^[2]

• Police found two nine-millimeter cartridge cases at the scene. The cases and parts of bullets recovered fromJackson's body and van matched the gun tied to Harrell.

¶ 3 We now turn to how the gun was tied to Harrell. This was the subject of Harrell's motion to suppress, which, as we have noted, the trial court denied.

¶ 4 Police officers went to the house on 25th and Burleigh on October 21, 2007, looking for Harrell because he was a suspect in the Jackson shooting. One of the officers knocked on the door, and Harrell answered and stepped out. The officer told Harrell that a detective wanted to talk to him and they waited in the officer's car. The police did not arrest or handcuff Harrell at that point, although the officers testified that they would not have let Harrell leave if he had wanted to. When the detective, Gilbert Hernandez, arrived, Harrell was in the officer's car. According to Hernandez, Harrell was getting nervous because folks were gathering near the car, and rather than talk to Hernandez in his squad car, Harrell wanted to go back inside the house. According to Hernandez "there was a group of people out there, and this was the indication—appearance of a snitch. He didn't want to be out there." The officers led Harrell into the house, and Hernandez remained temporarily outside. Harrell was not under arrest or in handcuffs then either.

¶ 5 One of the officers who led Harrell back into the house testified at the suppression hearing that before he would let Harrell sit on one of the chairs, the officer checked it to make sure there were no weapons that Harrell could get:

Q Why did you check the chair he wanted to sit in?

A Just in case there was any weapons or, you know, anything that is going to hurt any of us that were in the house.

The officer looking beneath the seat cushion found "suspected cocaine." Then:

A There was another chair not far from that chair. [Harrell] started walking over there, and that's whenI went over to that chair and checked the cushion, and that's where I found a firearm.

The gun was loaded. The officer's partner testified that they searched the second chair because "this is where we want to sit him now." The gun they found in the second chair was the gun to which the State's evidence tied to the cartridge casings and bullet pieces connected to Jackson's shooting. The chair in which the officers found the gun was about five feet from the chair where they found the suspected cocaine.

¶ 6 Harrell testified at the suppression hearing, and denied that he asked the officers to go back inside the house. He also testified that he did not give the officers permission to search the house. Harrell told the trial court that the officer searched the first chair before he would let Harrell sit on it; they let him sit in the chair after they found the suspected cocaine; and that they then searched the couches and other chairs in the room, which was when they found the gun.

¶ 7 As noted, the trial court denied Harrell's motion to suppress the gun. It ruled that the officers were more credible than Harrell. The trial court thus found that Harrell asked to go back into the house to speak to the officers. The trial court also determined that the officers did nothing wrong by checking the chairs for weapons.

II.

A. Suppression of the gun.

¶ 8 As we have seen, Harrell claims that the trial court erred in not preventing the jury from learning that the gun tied to Jackson's shooting was found underneaththe seat cushion. This presents mixed questionsof fact and law. See State v. Casarez, 2008 WI App 166, ¶ 9, 314 Wis.2d 661, 668, 762 N.W.2d 385, 388. We will not overturn the trial court's findings of fact unless they are clearly erroneous. Ibid.; Wis. Stat. RuleE 805.17(2) (made applicable to criminal proceedings by Wis. Stat. § 972.11(1)). The trial court is thus the sole judge of the credibility of the witnesses testifying at the suppression hearing. We review de novo, however, the trial court's application of constitutional principles. See Casarez, 2008 WI App 166, ¶ 9, 314 Wis.2d at 668, 762 N.W.2d at 388-389. We now turn to whether the officers were justified in looking under the cushion of the second chair.

¶ 9 The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (quoted source omitted). Thus, " 'searches and seizures inside a home without a warrant are presumptively unreasonable.' " Id., 466 U.S. at 749, 104 S.Ct. 2091 (quoted source omitted). This "presumption," of course, may under appropriate circumstances, be overcome: "the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' " United States v. Knights, 534 U.S. 112, 118-119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoted source omitted).

¶ 10 Terry v. Ohio, 392 U.S. 1, 27-28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), recognized that under the Fourth Amendment's banagainst unreasonable searches and seizures, a law-enforcement officer may search a person to ensure the officer's safety if the officer has reason to believe that the...