State v. Kutz, No. 02-1670-CR.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Deininger, P.J., Dykman and Vergeront, JJ.
• Citation: 267 Wis.2d 531,2003 WI App 205,671 N.W.2d 660
• Decision Date: 25 September 2003
• Docket Number: No. 02-1670-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Daniel H. KUTZ, Defendant-Appellant.

267 Wis.2d 531
2003 WI App 205
671 N.W.2d 660

STATE of Wisconsin, Plaintiff-Respondent,
v.
Daniel H. KUTZ, Defendant-Appellant.¹

No. 02-1670-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 14, 2003.

Decided September 25, 2003.

267 Wis.2d 538

On behalf of the defendant-appellant, the cause was submitted on the briefs of T. Christopher Kelly, Kelly & Habermehl, S.C., Madison

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, asst. attorney general, and Peggy A. Lautenschlager, attorney general.

267 Wis.2d 539

Before Deininger, P.J., Dykman and Vergeront, JJ

¶ 1. VERGERONT, J.

Daniel Kutz was charged with first-degree intentional homicide, hiding a corpse, stalking, and obstructing an officer, all arising out of the disappearance of his wife, Elizabeth Kutz, on July 27, 2000, and events preceding her disappearance. He was convicted of all four offenses after a jury trial and now appeals on two grounds: (1) the State did not have probable cause to arrest him and the trial court therefore erred in denying his motion to suppress evidence obtained in a search incident to that arrest; and (2) a number of Elizabeth's statements, related by witnesses at trial, were inadmissible hearsay.

¶ 2. We conclude the State did have probable cause to arrest Daniel and the trial court therefore properly denied his motion to suppress evidence. With respect to those evidentiary challenges Daniel has properly preserved for appellate review, we conclude: (1) the instruction of Elizabeth to her mother to come looking for her if she was not home by 3:45 p.m. was not hearsay and therefore was not inadmissible on hearsay grounds; (2) Elizabeth's hearsay statements to others that Daniel was following her came within the recent perception exception in WIS. STAT. § 908.045(2) (2001-02)² and therefore were properly admitted; and (3) Elizabeth's hearsay statements to others of threats Daniel had made to her did not come within the state-of-mind exception in WIS. STAT. § 908.03(3), the recent perception exception in § 908.045(2), or the

267 Wis.2d 540

excited utterance exception in § 908.03(2)³ and were therefore erroneously admitted; however, these errors were harmless. Accordingly, we affirm the judgment of conviction for each of the four offenses

Probable Cause To Arrest

I. Background

¶ 3. At the time of her disappearance, Daniel and Elizabeth were married, had been together approximately twelve years, and had two children. They were having marital problems; about a week before her disappearance, Elizabeth had moved out of the house she shared with Daniel near Poynette, Wisconsin, and taken the two children to live with her mother in Poynette. On July 27, 2000, Elizabeth went to work in the morning at Demco in DeForest and left at 3:15 p.m., but she did not return to her mother's house. Her family reported her missing later that day, and officers of the Village of DeForest Police Department began to search for her and Daniel and the vehicles each had been driving. The car Daniel had been driving that day, a blue Cavalier, was found about 11:00 p.m. parked behind a closed business down the street from Demco. Also at about 11:00 p.m., officers of the Dane County Sheriffs Department picked up Daniel walking north along Highway CV, just north of the airport, without shoes or a shirt. They dropped Daniel off at his brother's house in DeForest, where DeForest police officers located him. They asked Daniel to come to the police department for further questioning and he did.

267 Wis.2d 541

Approximately two hours later, Officer James Pertzborn placed Daniel under arrest. One of the items taken from him in the search incident to the arrest was a wristwatch, which was later tested and revealed traces of Elizabeth's blood. Her body was never located

¶ 4. Prior to trial, Daniel moved to suppress the evidence of the wristwatch and the test results, contending that the State lacked probable cause to arrest him. The evidence at the hearing on this motion showed that at the time of the arrest, Officer Pertzborn had the following information. Greg Stahl came to the police department shortly after 9:00 p.m. on July 27 and said that he and Elizabeth were having an affair; Elizabeth had told him Daniel was distraught over the breakup of their marriage and had threatened to kill himself; he had seen Daniel earlier that day in a blue Cavalier in an apartment parking lot near Demco; he and a friend had looked for Elizabeth and could not find her; and he and Elizabeth had plans for the evening and it was unlike her to not notify him if her plans changed. Stahl also stated that Elizabeth had told him on several occasions that Daniel had followed her, she was tired of his "controlling nature," and she was afraid.⁴ Officer Pertzborn also learned that Elizabeth was living with

267 Wis.2d 542

her mother and her mother had reported that Elizabeth called her at 3:15 p.m. and said she would be home from work in a half hour and if she were not home by then, to come looking for her. Her mother stated that it was uncharacteristic of Elizabeth not to let her mother know her plans, since she (her mother) had the children. Her mother told Officer Pertzborn she and the family had been contacting as many of Elizabeth's close friends as they could think of and no one had any information about where she might be.

¶ 5. From fellow officers, Officer Pertzborn learned there had been a dispatch report earlier of an "estranged husband possibly stalking or hanging around" his wife's workplace, but the investigating officer did not see the husband. Officer Pertzborn also learned that within the last five months or so Daniel had been in possession of a firearm, which he had shown to family members, and had been arrested approximately two years previously for discharging a shotgun at or toward a truck driver who came to Daniel's residence to repossess a truck.

¶ 6. Officer Pertzborn was one of the officers who went to Daniel's brother's house. He saw that Daniel was not wearing a shirt or shoes, his socks were wet and dirty, and his pants were rolled up and appeared damp or wet at the bottom. Daniel appeared very physically tired and depressed. Officer Pertzborn learned from another officer that when Daniel had arrived at his brother's house, his brother had asked him where his boots and shirt were and where Elizabeth was, and Daniel had not given an answer; his brother was very concerned about where Elizabeth was.

267 Wis.2d 543

¶ 7. Daniel disclosed that he was extremely distraught over the breakup of his marriage; he said that was the only thing on his mind, and he had not eaten or slept for two days. He suspected that Elizabeth was having an affair with a man named Greg who lived in Portage. He also spoke of a foreclosure that was occurring on farmland he and Elizabeth owned. Officer Pertzborn observed small scratches on Daniel's wrist and a small sore on his hand, and he identified photographs showing these, which were admitted into evidence. He also saw what appeared to be dried blood on one of the sores.

¶ 8. Daniel gave this account of his activities on July 27. He had called Elizabeth early in the morning to say he would probably stop by to see her at work that day. He drove the blue Cavalier to meet her after work, and he parked it on County Highway V to wait for her. About 3:30 p.m., he saw her coming towards him in the green Jeep, she pulled over, he got in the Jeep with her, and left his car there. They drove around and talked about their marriage and the children; he said he could not be specific about where they went because he was concentrating on their conversation. They eventually went to Token Creek Park and had sexual intercourse in the vehicle, and he took his boots off, but kept his shirt on. They talked more, left the park, and Elizabeth drove to a Stop-N-Go gas station where he got out and went into the store; she said she had to go to Portage and he said he would walk. After he went into the store, he realized he left his boots in the Jeep. He bought a drink and snack, ate them, and started walking north on Highway CV until the officers picked him up. His intention was to walk home, which was about twentyfive to thirty miles away. He acknowledged that it was out of character for Elizabeth not to contact anyone and

267 Wis.2d 544

let them know where she was. However, he expressed no concern for her welfare or whereabouts and declined the offer to go with them to try to find her.

¶ 9. Officer Pertzborn testified to the training he had had on domestic violence, and, based on that training and on his experience, he saw several "red flags" indicating that Daniel may have harmed Elizabeth when he was with her on July 27: the evidence that Daniel had been seen at her workplace earlier in the day, meaning that he was potentially stalking her; her statement to her mother to come looking for her if she was not home by a certain time, potentially indicating she knew Daniel was stalking her and was afraid of him; her moving out and Daniel's knowledge that she wanted to end the marriage and was having an affair; and the intensity of his preoccupation with the breakup of the marriage. Officer Pertzborn was also aware that Daniel's car had been found in a location that was not where he said he left it.

¶ 10. Based on this evidence, the trial court concluded that when Officer Pertzborn arrested Daniel, he had probable cause to believe Daniel had committed a criminal offense. The court further concluded that the search was a lawful search incident to a lawful arrest, and there was probable cause to believe that the wristwatch might contain "trace elements" based on the evidence of his contact with Elizabeth. The court therefore denied the motion to suppress the evidence.

II. Discussion

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¶ 11. In order to be lawful, an arrest must be based on probable cause. State v. Secrist, 224 Wis. 2d 201,...