State v. Semrau

• Decision Date: 02 February 2000
• Docket Number: No. 98-3452-CR., No. 98-3443-CR
• Citation: 608 N.W.2d 376,233 Wis.2d 508,2000 WI App 54
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jerome G. SEMRAU, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

233 Wis.2d 508

2000 WI App 54

608 N.W.2d 376

STATE of Wisconsin, Plaintiff-Respondent, v. Jerome G. SEMRAU, Defendant-Appellant.¹

Nos. 98-3443-CR, 98-3452-CR.

Court of Appeals of Wisconsin.

Submitted on briefs October 22, 1999.

Decided February 2, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John D. Lubarsky, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general. Before Brown, P.J., Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.

Jerome G. Semrau appeals from judgments of conviction for nine counts of sexual exploitation of a child and one count of burglary. Semrau pled guilty to the charges following the trial court's denial of his motion to suppress certain evidence and the denial of his motion to dismiss the burglary charge.

¶ 2. As to the sexual exploitation convictions, Semrau challenges the trial court's denial of his motion to suppress evidence of statements he made to the victim's stepfather who secretly taped the conversation as an agent of the police. Semrau argues that this conduct violated his Sixth Amendment right to counsel because he was represented by an attorney on the sexual exploitation charges at the time of the conversation. Assuming that the trial court erred, we hold that the error was harmless in light of the other compelling evidence demonstrating Semrau's guilt. As such, there was no reasonable probability that, but for the trial court's rejection of the motion to suppress, Semrau would have refused to plead guilty and would have insisted on going to trial.

¶ 3. As to the burglary conviction, Semrau contends that his unauthorized entry into the victim's premises in violation of the conditions of his bond was not the type of underlying felony necessary to support a burglary charge. Semrau bases his argument on the holding of State v. O'Neill, 121 Wis. 2d 300, 359 N.W.2d 906 (1984), which requires that the underlying conduct must constitute a crime against persons or property. We hold that Semrau's bail jumping conduct constituted a felony crime against persons or property. Therefore, the trial court correctly denied Semrau's motion to dismiss.

¶ 4. We affirm the judgments of conviction.

FACTS

¶ 5. The facts underlying Semrau's convictions arise out of two separate, but related, incidents. Between about June 1 and September 30, 1997, Semrau took nineteen sexually explicit photographs of N.L.F., an eight-year-old female child who lived downstairs from Semrau's upstairs living unit. Semrau delivered the film to a store for developing. The store sent the film to an Indiana laboratory. Upon developing the film, the laboratory contacted the Indiana state police, who in turn contacted the Walworth County Sheriff's Department. Based upon this information, Walworth county sheriff's deputies arrested Semrau and executed a search warrant on his residence on November 6, 1997.

¶ 6. On the same day as Semrau's arrest, Detective Craig Weber of the Walworth County Sheriff's Department and Paula Hocking of the Walworth County Department of Human Services spoke with N.L.F. After having been shown the photographs, N.L.F. indicated that they were taken by her neighbor "Jerry." Several days later, on November 12, Weber showed N.L.F. a photographic line-up that included a picture of Semrau. N.L.F. identified Semrau as the person who took the pictures of her.

¶ 7. Before the State filed a complaint, Semrau was admitted to bail and released from custody. In addition to other conditions of release, Semrau was to have no contact with N.L.F., her family or their residence. Represented by counsel, Semrau appeared on November 14, 1997, in response to a criminal complaint that charged him with nineteen counts of sexual exploitation of a child contrary to WIS. STAT. § 948.05(1)(b) (1997-98),² one for each explicit photograph taken.³

¶ 8. Shortly after his release from custody, Semrau contacted Dean R., N.L.F.'s stepfather. Semrau told Dean R. that he wanted to discuss the case. Dean R. immediately contacted the sheriff's department. After learning that Dean R. had agreed to speak to Semrau later that night, Weber asked Dean R. if he would call Semrau from the sheriff's office so that the phone call could be recorded. Dean R. did so, but Semrau did not want to discuss the matter over the phone. Instead, they agreed to meet face to face and scheduled a meeting for November 20 at a local fast food restaurant.

¶ 9. At Weber's suggestion, Dean R. agreed to wear a wire to record the conversation with Semrau. Weber also suggested topics that Dean R. should try to get Semrau to talk about. One such topic was to follow up on a comment Semrau had made alluding to payment of money to N.L.F. and her family in exchange for her not testifying.

¶ 10. Dean R. and Semrau met at the fast food restaurant on November 20, 1997. They discussed the case for more than two hours while Weber monitored and recorded the conversation from the parking lot of a nearby gas station. ¶ 11. On November 25, the day before Semrau's scheduled preliminary hearing on the sexual exploitation charges, N.L.F.'s mother discovered a crumpledup hand-printed note in N.L.F.'s pillowcase. The note made reference to promises between the author and N.L.F. and warned N.L.F. that if she testified the author would reveal unfavorable information about N.L.F. The note suggested that N.L.F. not go to court, not speak to the authorities and otherwise deny that anything occurred.

¶ 12. N.L.F.'s mother reported this discovery to the police and advised that her family had been away from the home on two occasions that day. When she returned home in the evening, she found the front door unlocked, even though she thought all the doors had been left locked. She identified the handwriting in the note as Semrau's and stated that he was her former upstairs neighbor. The note also recited the telephone number of Semrau's mother.

¶ 13. Based upon this event, the State charged Semrau with burglary contrary to WIS. STAT. § 943.10(1)(a), bail jumping contrary to WIS STAT. § 946.49(1)(b) and intimidating a victim contrary to WIS. STAT. § 940.44(2). The State later combined the sexual exploitation charges and the new charges into a single amended information.

¶ 14. Semrau filed various pretrial motions. One of the motions sought to suppress Semrau's tape-recorded conversation with Dean R. In support, Semrau argued that the secret recording of the conversation violated his Sixth Amendment right to counsel because he was then represented by an attorney on the sexual exploitation charges. Another motion sought to dismiss the burglary charge. In support, Semrau argued that his unauthorized entry into N.L.F.'s premises in violation of the conditions of his release was not the type of underlying felony necessary to support the burglary charge. Specifically, Semrau relied on O'Neill, which requires that the underlying crime be one against persons or property. See O'Neill, 121 Wis. 2d at 305. The trial court rejected both motions.

¶ 15. Semrau then entered into a plea agreement with the State. He pled guilty to nine of the nineteen counts of sexual exploitation of a child, as well as the burglary charge. The remaining sexual exploitation charges, the bail jumping charge and the intimidation of a victim charge were all dismissed as read-in charges. Semrau appeals from the ensuing judgments of conviction.

DISCUSSION

1. Motion to Suppress

¶ 16. Semrau first challenges the trial court's denial of his motion to suppress his tape-recorded statements to Dean R. He argues that this evidence was obtained in violation of his Sixth Amendment right to counsel because he was already represented by counsel on the sexual exploitation charges.

¶ 17. The trial court rejected Semrau's motion to suppress because Semrau had initiated the contact with Dean R., because Dean R. was not an agent of the police at the time of the contact and because Semrau's statements were made voluntarily.

¶ 18. On appeal, Semrau concedes that he initiated the contact with Dean R. and that, at that time of that contact, Dean R. was not a police agent. However, he argues that when he and Dean R. later had their tape-recorded conversation, the police had adopted Dean R. as their agent. From this, Semrau argues under United States v. Henry, 447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159 (1985); and State v. Lee, 122 Wis. 2d 266, 362 N.W.2d 149 (1985), that the police violated his right to counsel.

¶ 19. The State concedes that the police conduct violated Semrau's right to counsel on the sexual exploitation charges. However, the State contends that the evidence was admissible as to the burglary, bail jumping and victim intimidation charges because Semrau had not yet committed those crimes and, as a result, was not yet represented by counsel as to those matters. Thus, the State concludes that the trial court did not err by rejecting Semrau's motion to suppress. If the case had gone to trial, the State reasons that the trial court could have properly admitted the evidence as to those charges and instructed the jury not to consider the evidence on the sexual exploitation charges. See State v. Mordica, 168 Wis. 2d 593, 602-03, 484 N.W.2d 352 (Ct. App. 1992).

¶ 20. We reject this argument because, unlike the State's analysis, the trial court's ruling did not draw the distinction between the two sets of charges. Instead, the court's ruling was broadly based, appearing to allow the disputed evidence on both sets of charges.⁴ Therefore, faced with the trial court's broadbased adverse ruling, Semrau entered into a plea agreement with the State.

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¶ 21. The State, however, has an alternative argument based on harmless error. The State contends that any error by the trial court ruling was of no consequence because of the other...