State v. Thames, No. 2008AP1127-CR (Wis. App. 12/9/2008)
| Decision Date | 09 December 2008 |
| Docket Number | No. 2008AP1127-CR.,No. 2008AP1138-CR.,2008AP1127-CR.,2008AP1138-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. De-Yul Thames, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Fine, Kessler and Brennan, JJ.
De-Yul Thames appeals from judgments entered in two separate cases, wherein he was convicted of possession of cocaine, possession of marijuana and bail jumping, contrary to WIS. STAT. §§ 961.41(3g)(c), 961.41(3g)(e) and 946.49(1)(b) (2005-06).2 He also appeals from orders entered in the two cases denying his postconviction motions. We consolidated the two cases for purposes of appeal and disposition.
¶ 2 Thames raises three claims on appeal: (1) the trial court erroneously exercised its discretion at sentencing when it considered the charges he was acquitted of; (2) his due process rights were violated when the State sold his vehicle prior to trial; and (3) the trial court should have granted his motion seeking to suppress evidence in the second case on the ground that the police did not have reasonable suspicion to stop him. We reject each contention and affirm.
¶ 3 As noted, this appeal involves two separate cases, which were consolidated for purposes of appeal. The first case, Circuit Court Case No. 2005CF5739 stemmed from an incident in October 2005. The second case, Circuit Court Case No. 2006CF2606 arose from conduct that occurred in May 2006 while Thames was out on bail pending trial in the first case. The facts pertinent to each case are set forth below.
¶ 4 On October 5, 2005 at about midnight, two City of Milwaukee Police Officers observed a blue four-door Cadillac driving on West Greenfield Avenue without its headlights on. The police turned on the lights and siren of their marked squad car to initiate a stop of the Cadillac. The Cadillac, however, did not stop. Instead, it proceeded through the city streets to the freeway on-ramp. The squad car followed the Cadillac onto the freeway. The chase continued at approximately 50 m.p.h., during which the police observed the Cadillac driver throw out of his window, two small baggies and one large bag containing a white powdery substance. The large bag struck the hood of the squad car. Shortly after tossing the third bag out the window, the Cadillac exited the freeway and pulled over for the police.
¶ 5 The driver, identified as Thames, was uncooperative and had to be forcibly removed from the vehicle. The police then observed a white chunky substance of suspected crack cocaine base on the front driver's seat. They also found 139 small brown vials consistent with what is typically used to package and deliver cocaine as well as five cell phones.
¶ 6 With the assistance of the Milwaukee County Sheriff's Office, the route of the chase was retraced in an attempt to recover the bags, which had been tossed out the window of the Cadillac. The police were unable to recover the small baggies, but did locate the larger one. The police were able to recover much of the suspected cocaine from the roadway. The suspected cocaine from the roadway and the front seat of the Cadillac were sent to the crime lab for testing. Both were confirmed to be cocaine and weighed 12.41 grams.
¶ 7 Thames was charged with fleeing an officer and possession with intent to deliver a controlled substance, cocaine (more than five but less than fifteen grams). This case was tried to a jury in June 2007 after which Thames was found not guilty on the fleeing charge and not guilty on the possession with intent to deliver charge. The jury did find Thames guilty of the lesser-included offense of possession of a controlled substance.
¶ 8 On May 15, 2006, Milwaukee police received a telephone call that a person, who was suicidal, was missing and thought to be driving a blue four-door automobile. The person was described as a forty-seven-year-old white male. Milwaukee Police Officer Paul Hinkley observed a vehicle matching the description given. Hinkley could not get a visual look at the driver, but activated his squad car's lights and siren in an attempt to stop the vehicle. The blue four-door vehicle did not stop for the squad car. Instead, it continued driving on city streets until it reached the freeway on-ramp. After getting on the freeway, the vehicle accelerated to speeds in excess of 65 m.p.h. with the squad car in pursuit. While on the freeway, the police observed the driver of the vehicle throwing clear plastic bags out the window. The vehicle eventually stopped. The driver was identified as Thames. He was arrested and the vehicle was searched. Two small bags of suspected marijuana were found under the driver's seat. The bags were sent to the crime lab for testing and confirmed to be marijuana with a weight of 4.1 grams.
¶ 9 Thames was charged with fleeing, possession of a controlled substance (marijuana) and felony bail jumping. Thames filed a motion seeking to suppress evidence seized by police on the ground that the police did not have probable cause to conduct the initial stop of his vehicle. The trial court denied the motion. The case was tried to a jury in June 2007 after which Thames was found not guilty of fleeing, but guilty of possession of marijuana as well as felony bail jumping.
¶ 10 The two cases were consolidated for purposes of sentencing, which was held on July 18, 2007. The trial court sentenced Thames to one year in prison and a $200 fine on the possession of cocaine conviction in the 2005 case. In the 2006 case, the trial court sentenced Thames to six years on the bail jumping charge, consisting of three years' initial confinement followed by three years' extended supervision and a $100 fine. On the possession of marijuana charge, Thames was sentenced to six months in jail and a $100 fine.
¶ 11 Thames filed postconviction motions in both cases, which were denied. He now appeals.
¶ 12 Thames claims the trial court erroneously exercised its discretion at the sentencing hearing by considering the charges on which he was acquitted. The State responds that the trial court did not inappropriately consider the acquitted charges at sentencing, but rather was considering those charges as a part of its obligation "to assess the defendant's character using all available information." See State v. Arredondo, 2004 WI App 7, ¶53, 269 Wis. 2d 369, 674 N.W.2d 647. We agree with the State.
¶ 13 Our standard of review when reviewing a criminal sentencing is whether or not the trial court erroneously exercised its discretion. See State v. Plymesser, 172 Wis. 2d 583, 585-86 n.1, 493 N.W.2d 367 (1992). There is a strong policy against an appellate court interfering with a trial court's sentencing determination, and an appellate court must presume that the trial court acted reasonably. See State v. Thompson, 146 Wis. 2d 554, 565, 431 N.W.2d 716 (Ct. App. 1988).
¶ 14 The sentencing court must consider three primary factors: (1) the gravity of the offense, (2) the character of the offender and (3) the need to protect the public. State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984). The trial court may also consider: the defendant's past record of criminal offenses; the defendant's history of undesirable behavior patterns; the defendant's personality, character and social traits; the presentence investigation results; the viciousness or aggravated nature of the defendant's crime; the degree of the defendant's culpability; the defendant's demeanor at trial; the defendant's age, educational background and employment record; the defendant's remorse, repentance or cooperativeness; the defendant's rehabilitative needs; the rehabilitative needs of the victim; the needs and rights of the public; and, the length of the defendant's pretrial detention. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989).
¶ 15 Here, Thames complains that by considering the fleeing charges and the possession of cocaine with intent to deliver charge, which the jury acquitted him of, the trial court replaced the jury's verdict with its own. He argues that such constitutes an erroneous exercise of sentencing discretion. We are not persuaded.
¶ 16 The law in this state clearly permits the sentencing court to consider "uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted." State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote omitted). Considering this information allows sentencing courts "to acquire the `full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence.'" Id. (citation omitted). Just because a defendant is acquitted of some charges does not mean he is innocent of them. It merely proves the existence of reasonable doubt. United States v. Watts, 519 U.S. 148, 155 (1997). So the question is whether the facts surrounding the acquitted charges are sufficiently reliable to justify the trial court's reliance on them and whether they are relevant to the defendant's character.
¶ 17 Here, the trial court carefully considered the acquitted facts in a very detailed and thoughtful sentencing analysis. The court commented that it had heard the testimony in both jury trials and therefore had a unique opportunity to weigh the strength of the acquitted facts. The court noted that it chose to follow the higher federal case threshold, that of preponderance of the evidence, when weighing the admissibility and relevance of the acquitted facts. Using this analysis, the trial court determined that the acquitted facts were reliable and relevant to the issues of the defendant's character and to his pattern of behavior.
¶ 18 The trial court found Thames's...
To continue reading
Request your trial