State v. Multaler

• Citation: 2002 WI 35,252 Wis.2d 54,643 N.W.2d 437
• Decision Date: 25 April 2002
• Docket Number: No. 00-1846-CR.,00-1846-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James E. MULTALER, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

252 Wis.2d 54

2002 WI 35

643 N.W.2d 437

STATE of Wisconsin, Plaintiff-Respondent, v. James E. MULTALER, Defendant-Appellant-Petitioner.

No. 00-1846-CR.

Supreme Court of Wisconsin.

Oral argument February 5, 2002.

Decided April 25, 2002.

For the defendant-appellant-petitioner there were briefs by Jeffrey W. Jensen and Law offices of Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, James Multaler, seeks review of a published court of appeals decision affirming his conviction on a plea to 28 counts of possession of child pornography.¹ Police found the pornographic materials in Multaler's house while executing a search warrant for evidence implicating him in a series of homicides. He asserts that the affidavit accompanying the warrant application was insufficient to establish probable cause to believe that items relating to the homicides would be located in his house. In addition, he argues that his plea is invalid because the charges to which he pled are multiplicitous as contrary to the legislatively intended unit of prosecution.

¶ 2. We determine that the affidavit provided a substantial basis to conclude that there was a fair probability that evidence relating to the homicides would be found in Multaler's house. In addition, we determine that the 28 charges to which Multaler pled were not multiplicitous. Accordingly, we affirm the court of appeals.

I

¶ 3. This case arises from an investigation of the disappearance and homicide of four young women from Milwaukee in 1974 and 1975. Multaler became a suspect in their homicides. On May 18, 1998, more than 20 years after the homicides, police obtained a warrant to search his home for evidence of those crimes. In the course of executing the warrant, police discovered two computer disks containing images of children engaged in sexually explicit activity.² Based on the contents of the disks, Multaler was charged with 79 counts of possession of child pornography in violation of Wis. Stat. § 948.12 (1997-98).³

¶ 4. Multaler moved to suppress the disks, arguing that the affidavit in support of the warrant to search his house was insufficient to establish probable cause. The circuit court denied Multaler's motion, and Multaler subsequently entered an Alford plea⁴ to 28 of the 79 counts. The remaining 51 counts were dismissed. Multaler appealed, and the court of appeals affirmed his conviction.

¶ 5. This case presents two issues. First, we must determine whether the affidavit in the application for the search warrant for Multaler's residence was sufficient to establish probable cause to search his home for items related to the homicides. Second, we must determine whether Multaler's plea was invalid because he pled to charges that were multiplicitous. We address each issue in turn.

II

¶ 6. Multaler asserts that the affidavit in support of the warrant did not establish probable cause to search. Thus, we begin by setting forth the standards implicated in our review of probable cause in the search warrant context.

[1, 2]

¶ 7. We accord great deference to the warrant-issuing judge's determination of probable cause, and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause. State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). Thus, "[t]he burden of proof in a challenge to the existence of probable cause for the issuance of a search warrant is clearly with the defendant." State v. Edwards, 98 Wis. 2d 367, 376, 297 N.W.2d 12 (1980).

[3, 4]

¶ 8. The duty of the court issuing the warrant is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before it, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Higginbotham, 162 Wis. 2d at 990. In addition, the warrant judge may draw reasonable inferences from the evidence presented in the affidavit. State v. Benoit, 83 Wis. 2d 389, 399, 265 N.W.2d 298 (1978).

[5]

¶ 9. With these considerations in mind, we turn to examine the affidavit in light of Multaler's arguments that it is insufficient. The thrust of the affidavit, submitted by Investigator John Hanrahan, was this: Hanrahan and another detective were investigating the disappearance and subsequent homicides of four young women, Wendy B., Susan W., Sherry M., and Cynthia F., from Milwaukee in 1974 and 1975; Multaler not only killed the four young women but also was a serial killer as evidenced by his behavior that was consistent with that expected of serial homicide offenders; as serial killers are wont to do, he collected and retained various mementos to remind him of the murders, including items taken from the victims; although it was more than 20 years since the time of the murders, these items were likely to be found in his house because serial killers retain such items indefinitely.

¶ 10. In support of his assertion that the affidavit submitted to obtain the search warrant was insufficient, Multaler first argues that the affidavit fails to establish probable cause that he was the killer in the homicides under investigation. He also disputes whether the affidavit establishes that he was a serial killer. Finally, he contends that the affidavit fails to provide probable cause to believe that evidence of the murders would remain in his house more than 20 years later.

¶ 11. Considering all the information in the affidavit and our standard of review, we are satisfied that the affidavit supports a finding of probable cause to search Multaler's house. The affidavit leads us to the conclusion that there was a substantial basis upon which the warrant judge could determine that there was a fair probability that the mementos sought would be found in Multaler's residence at the time the warrant was executed. In short, we determine that Multaler has failed to establish that the affidavit was clearly insufficient to establish probable cause to search. ¶ 12. Multaler first contends that the affidavit fails to establish probable cause to believe that he was the killer. He deems this necessary to a determination of probable cause to believe that his house contained the mementos indicated in the search warrant. The State, in contrast, does not concede that probable cause to search in this case depends upon probable cause to arrest Multaler for the murders. We need not determine whether separate probable cause to arrest was necessary, but disagree with Multaler insofar as we determine that the affidavit supports a determination of probable cause to believe that Multaler was the killer. The affidavit connected the murders to one another, directly connected Multaler to the murders of two of the women, and circumstantially connected him to all of the murders.

¶ 13. All four victims were white females between the ages of 15 and 21 at the time of their disappearance. They resided in Milwaukee and disappeared within a 16-month time frame. Three of the victims were found in Racine County, and one was found in Milwaukee County.

¶ 14. Each of their bodies showed evidence of rape or other physical assault. Two of the victims were found with their shirts pulled up over their breasts, and another was found with semen in her vagina and blood under her fingernails. Two were strangled to death and another, whose cause of death could not be determined due to decomposition of the body, had numerous contusions on her head and face.

¶ 15. All but one of the victims were missing small personal items. For example, Wendy B. wore a Mickey Mouse watch that was never located. A missing persons report indicated that she was also wearing a braided macramé bracelet, but the bracelet was never found. Susan W. was wearing an opal pin on a yellow gold necklace when she disappeared, but the pin and chain were not located.

¶ 16. When Sherry M.'s body was found, she was missing a gold ball-type earring and a pair of eyeglasses, neither of which were ever found. Sherry M. always wore a chain necklace with a butterfly pendant that also never was located. Several items were missing from her purse, including a hairbrush, a bottle of perfume, a picture ID, and photographs of friends.

¶ 17. The affidavit directly connected Multaler to two of the victims. He admitted to being with Wendy B. the night she disappeared. On one occasion he stated he could not recall whether he killed Wendy B., but on another occasion he stated that he felt that he had killed her, that "[i]f she is dead I must have killed her." In addition, when Multaler was asked to describe the clothing Wendy B. was wearing, he described Susan W.'s clothing instead. Thus, the affidavit directly linked Multaler to both Wendy B. and Susan W.

¶ 18. Additionally, the affidavit provided a circumstantial connection between Multaler and Susan W. When her purse was located, a bungee cord was found near it. One of the hooks on the bungee cord was pulled and bent in such a way that the hook was shaped into the form of the letter "L," and Multaler's ex-girlfriend identified it as identical to one she had observed in Multaler's possession.

¶ 19. The affidavit also circumstantially connected Multaler to the third victim, Cynthia F., in two ways. First, a note was found in Cynthia F.'s pocket bearing the name "James McDonald," and Multaler's ex-girlfriend stated that when she was staying with Multaler in 1975, she observed this name on a piece of paper near the telephone. ¶ 20. Second, the circumstances surrounding Cynthia F.'s disappearance were consistent with the circumstances surrounding a 1975 kidnapping for which Multaler was convicted. Specifically, in June 1975, a woman experienced an incident in which she was driving on...