State v. Sigarroa

• Decision Date: 10 December 2003
• Docket Number: No. 03-0703-CR.,03-0703-CR.
• Citation: 2004 WI App 16,269 Wis.2d 234,674 N.W.2d 894
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Sylvester SIGARROA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

269 Wis.2d 234

2004 WI App 16

674 N.W.2d 894

STATE of Wisconsin, Plaintiff-Respondent, v. Sylvester SIGARROA, Defendant-Appellant.¹

No. 03-0703-CR.

Court of Appeals of Wisconsin.

Submitted on briefs October 23, 2003.

Decided December 10, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of Frank J. Remington Center, University of Wisconsin Law School, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David H. Perlman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before Anderson, P.J., Brown and Nettesheim, JJ.

¶ 1. ANDERSON, P.J.

Sylvester Sigarroa appeals from a judgment of conviction and an order denying postconviction relief for conspiracy to possess cocaine with intent to deliver contrary to WIS. STAT. §§ 961.41(1x) and 961.41(1m)(cm) (2001-02),² maintaining a dwelling that is used for manufacturing, keeping, or delivering controlled substances contrary to WIS. STAT. § 961.42(1); and possession of drug paraphernalia contrary to WIS. STAT. § 961.573(1). Sigarroa argues that the police search of a trash dumpster located outside of his apartment building violated his Fourth Amendment rights because he had a reasonable expectation of privacy in his trash. Sigarroa also contends that the trial court erred in denying his motion for a mistrial made when a key State witness improperly implied to the jury that Sigarroa had a prior criminal record. We conclude that Sigarroa did not have an actual, subjective expectation of privacy; we further conclude that considering the facts and circumstances of this case, society would not recognize an expectation of privacy as reasonable. Finally, we conclude that under the entirety of the case, the impropriety of the statements by the State's witness was not so prejudicial as to affect the verdict, given that the court struck the statements at the time and that at the conclusion of trial, the court instructed the jury to "[d]isregard entirely any question that the court did not allow to be answered" and provided the jury with written instructions to ignore all things stricken. Therefore, we affirm.

FACTS

¶ 2. The facts are undisputed. On February 13, 2001, at approximately 11:00 p.m., Detective David Janisch went to an apartment complex located at 314 Sentinel Drive in Waukesha. Janisch was acting on the basis of several anonymous tips that Sigarroa, who lived in apartment #2 of the complex, had been involved in recent drug dealings. Janisch planned to engage in a garbage search, at technique he had used "a couple of hundred times" in the past in drug investigations. Janisch drove into the apartment complex parking lot and then walked over to the dumpster, which was visible from the road and located approximately 170 feet from the public street and approximately 53 feet from the apartment building.

¶ 3. Janisch drove his car down the driveway past the apartment building, on which a "Private Property" sign was posted. Janisch testified that he did not see the sign. Janisch did not seek or obtain permission from the owner or from any of the residents to enter the property or to search the contents of the dumpster; he did not have a warrant authorizing an entry or search. Janisch did not have to walk through any barriers or gates to access the dumpster and the lid of the dumpster was open. Janisch testified that he reached into the dumpster and removed three or four black plastic garbage bags, which were knotted at the top. Janisch searched the garbage bags and found marijuana seeds and stems, a handwritten note stating that there was "weed" in a duffel bag in the closet, and some unburned "Chore Boy," an item he knew to be frequently used as a filter for ingesting crack cocaine.

¶ 4. Based on this evidence, along with other information, Janisch procured and executed a search warrant for Sigarroa's apartment on February 15, 2001. The search warrant resulted in the discovery of crack cocaine and drug paraphernalia.

¶ 5. Prior to trial, Sigarroa filed a motion to suppress the evidence the police obtained from the garbage dumpster, claiming that the warrantless search violated his Fourth Amendment rights against unreasonable searches and seizures. Following a suppression hearing, the court denied the motion.³ The court stated that there was a sufficient basis for the issuance of the search warrant based on the totality of all the evidence, which included that the dumpster was not enclosed and was available for use to the other residents in the apartment building.

¶ 6. Also, before trial, Sigarroa filed a motion in limine requesting, among other things, that the State be prohibited from any mention or use of Sigarroa's prior criminal conviction(s), if any, until a hearing was held to determine admissibility. At a hearing on the motion, the parties informed the court that they had entered into a stipulation as to how to handle Sigarroa's prior record in the event that he would choose to testify at the trial. The parties agreed that if Sigarroa were to testify, the State could ask Sigarroa if he had been convicted of a crime and, if he answered truthfully, the State could ask how many times. In response, Sigarroa would answer, "four." In other words, the parties agreed that mention of Sigarroa's criminal history would be made only if Sigarroa testified and then it would be limited to whether he had a prior record and to his total amount of previous convictions.

¶ 7. A jury trial was held on April 16 and 17, 2002. Sigarroa did not testify and called no witnesses in his defense. None of the State's witnesses testified during direct examination as to Sigarroa's criminal history. However, during cross-examination of Detective Paul Piakowski, defense counsel asked what background information Piakowski had been given before interviewing Sigarroa. The following exchange occurred:

[PIAKOWSKI]: The only background I had about the case was that—what we found, it was found on, whose apartment it was supposed to be, and Mr. Sigarroa's criminal history.

[DEFENSE COUNSEL]: So you are basically testifying you had no other conversation with any other police officer concerning this matter before you went in to talk to Mr. Sigarroa?

[PIAKOWSKI]: Just that Mr. Sigarroa had some prior —

[DEFENSE COUNSEL]: I move to strike your honor.

[COURT]: Thank you. The jury will disregard anything further. You only testify as to the question that is asked, sir.

¶ 8. During the course of the trial, the State presented the following major blocks of evidence in support of its case against Sigarroa:

1) The police executed the search warrant on Sigarroa's apartment and a vehicle parked outside the apartment and found 13 rocks of crack cocaine, a black postal-type scale, a glass pipe, two single edge razor blades in the kitchen area, several baggies, approximately $250 in cash, and a spiral notebook containing names and numbers appearing to be notations of drug transactions.

2) The comprehensive testimony of a co-conspirator in which she explained to the jury that she and Sigarroa would travel to Milwaukee to purchase crack cocaine, would then return to their apartment in Waukesha to cut up the cocaine into smaller rocks, would then package the smaller cocaine rocks in baggies, and then resell the cocaine. This co-conspirator did not receive any consideration from the district attorney's office for her testimony; the prosecutor recommended a prison sentence pursuant to her conviction on a felony drug charge.

3) Sigarroa's confession, which was introduced through the testimony of Detective Piakowski. Piakowski related to the jury Sigarroa's statement that he could not work because of injuries sustained during a car accident and decided to sell crack cocaine to make ends meet. Piakowski further testified as to how Sigarroa told him how he and his co-conspirator would sell crack cocaine from their apartment, how they made a profit on this enterprise, and how he had placed the rocks of cocaine in his co-conspirator's coat pocket on the date the search warrant was executed. Piakowski reduced Sigarroa's statement to writing and then Sigarroa read the written statement. Sigarroa refused to sign or initial the statement; however, he told Piakowski that everything that was written down was true.

¶ 9. At the close of testimony, the court instructed the jury. Part of the court's instruction to the jury included the following:

Disregard entirely any question that the Court did not allow to be answered. Do not guess what the witness' answer might have been. If the question, itself, suggested that certain information might be true, ignore the suggestion; do not consider the evidence.

Additionally, the trial judge provided the jury with a written set of instructions including WIS JI—CRIMINAL 150 which states: "During the trial, the court has ordered certain testimony to be stricken. Disregard all stricken testimony." ¶ 10. After the jury had begun deliberations, the trial judge informed the parties of an incident which occurred during a recess. The judge stated that he had a conversation at lunch with the alternate juror who had been dismissed before the recess. The judge then described the following exchange:

He [the alternate juror] said, that was an interesting experience. I said, I'm glad you enjoyed it, and he said something to the effect that you certainly shut that officer up in a hurry when he tried to talk about the prior act, prior drug or prior something. He used the word "prior." I reported that to the attorneys when I came back just for—because I felt I had an obligation to do so.

¶ 11. Upon hearing of the judge's encounter with the alternate juror, defense counsel moved for a mistrial, arguing that the officer's statement was prejudicial because the statement informed the jury that Sigarroa had a prior criminal conviction. The court took the motion under advisement and ultimately...