State v. Thomas

Decision Date27 January 2015
Docket NumberNo. 2014AP478–CR.,2014AP478–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Terrence L. THOMAS, Defendant–Appellant.
CourtWisconsin Court of Appeals
Opinion

¶ 1 PER CURIAM.

Terrence Thomas appeals a judgment convicting him of repeated sexual assault of the same child and an order denying postconviction relief. Thomas argues his trial attorney was ineffective by failing to move to suppress DNA evidence obtained from warrantless swabs of Thomas's genitals. He asserts the DNA evidence should have been suppressed because the genital swabs did not fall within any recognized exception to the warrant requirement. He also argues that, even if a warrant was not required, the swabs were nevertheless unreasonable because there was no clear indication they would produce evidence that he sexually assaulted the victim, and because they were not performed by a medical professional. Alternatively, Thomas argues the erroneous admission of the DNA evidence entitles him to a new trial in the interest of justice.

¶ 2 We conclude Thomas's trial attorney was not ineffective by failing to move to suppress the DNA evidence because any such motion would have been properly denied. Thomas voluntarily consented to the genital swabs, and it was therefore unnecessary for investigators to obtain a warrant. Moreover, the genital swabs were reasonable because there was a clear indication they would produce evidence that Thomas sexually assaulted the victim, and failure to have the swabs performed by a medical professional did not render them unreasonable. Finally, because the DNA evidence was properly admitted, Thomas is not entitled to a new trial in the interest of justice. We therefore affirm.

BACKGROUND

¶ 3 On August 29, 2011, at approximately 7:00 p.m., police responded to a “large verbal disturbance” at a residence on Cherry Street in Green Bay. When police arrived at the residence, a woman reported that Thomas had sexually assaulted her twelve-year-old daughter. The victim gave a statement to police and went to the hospital for a sexual assault examination. In her statement, the victim indicated Thomas had penis-to-vagina intercourse with her sometime between 12:00 p.m. and 1:00 p.m. that day. The victim also reported that Thomas had sexually assaulted her on three prior occasions during the months of July and August 2011.

¶ 4 Thomas was transported to the Green Bay Police Department. At approximately 9 p.m., Green Bay police detective David Graf met with Thomas in an interview room. Graf was aware that Thomas was suspected of sexually assaulting the victim. Because of the nature of the allegations, Graf decided to seek DNA evidence from Thomas by conducting buccal and genital swabs.

¶ 5 Graf's interview with Thomas was recorded and later transcribed. At the beginning of the interview, Graf stated that, because Thomas was accused of committing a sexual act, [w]e're going to ask that you provide us with a sample of your DNA.” Graf confirmed that Thomas understood the term DNA, and he then explained that he wanted to take a buccal swab from the inside of Thomas's cheek, as well as a penile swab, which “essentially is just the swabbing with a cotton swab of your genital areas.” Graf further explained the DNA samples would help police determine “if, really, there was any contact or not.” He stated, [I]f [the victim's] DNA's not there, then it's possible that there was no contact. If her DNA is there, then it's possible that there was contact.”

¶ 6 Graf then presented Thomas with a consent form for the buccal swab, and the following exchange took place:

Graf: So I have a consent-to-obtain-DNA-sample form here. Is this something you're willing to help us out with as part of the investigation then?
Thomas: I mean, what if I refuse to do it? Then what?
Graf: Well, we're going to do the penile swab because of the allegations and also the fact that we could lose that evidence quickly; and so we're going to do that. And then I could obtain a search warrant to obtain your DNA, if I choose to do that.
Thomas: Oh, okay; but if I give it to y'all willing, I mean, then what?
Graf: Then we have it, and you cooperated fully, and the district attorney's office knows that you cooperated fully and that you have nothing to hide.

¶ 7 Thomas subsequently stated, “So you're saying that if I sign that, that gives y'all consent to give me a swab and swab my genital area.” Graf clarified that the form only pertained to the buccal swab, but he was “explaining the—the penile swab also.”1 Thomas then asked, “And you said that's something y'all need me to do; but if I do it, then y'all will know I cooperated with y'all; but then if I don't do it, that's basically gonna make me look guilty?” Graf responded, “Well ... I can't say either way. I'm not here to judge you; but it would certainly benefit you, I would think, personally, that you cooperated. But I'm not making decisions for you. I'm just telling you what's going on.” Graf then explained that the swabs would take only “minutes,” but the evidence would have to be sent to a lab for testing. Thomas responded, “So, basically, it's going to be a while. I'll do it.”

¶ 8 Graf then began filling out the consent form for the buccal swab. As he was doing so, Thomas asked, “So, basically, when y'all do this, does this mean I'm guilty or anything?” Graf responded:

No. Absolutely not. This says that you consent that a buccal swab be obtained by me, Detective Graf, for the Green Bay Police Department and that all those samples be analyzed by any authorized representative of a Wisconsin Crime lab or any (inaudible) laboratory deemed necessary and you've had the procedure explained to you by me at the Green Bay Police Department and that you're providing a sample freely and voluntarily. It doesn't say anything about admission, guilt, or evidence or anything. It's just saying, “Yeah. Go ahead.”

¶ 9 Thomas then asked, [B]ut even if I did do this, and say it did come back, that's still not going to prove me guilty ‘cause I gave y'all consent to the evidence from me, right?” Graf replied that, if the tests did not find any of the victim's DNA on Thomas, “that would ... lean more towards that, you know, potentially nothing happened.” Graf explained, “DNA is not a, you know-it's going to say ‘Yes,’ or it's going to say ‘No.’ It's not going to say if that really happened or not. Okay? It's just a tool that we investigators use.” Thomas again stated, “So it's not just saying I'm guilty.” Graf replied that the DNA evidence would be used to [i]nvestigate the crime ... and hopefully determine if something really happened or not.” Thomas then said, “Okay[,] and signed the consent form.

¶ 10 Graf subsequently took Thomas into another room in the police station and performed a buccal swab, two penile swabs, and two scrotal swabs. Testing of the penile and scrotal swabs revealed a mixture of DNA from two or more individuals, including at least one male contributor. For three of those swabs, an analyst from the Wisconsin State Crime Laboratory opined it was “at least 18 quadrillion times more likely to observe this DNA mixture if it is a mixture of DNA from [Thomas] and [the victim] than if it is a mixture of DNA from [Thomas] and a random, unrelated individual.”

¶ 11 Thomas was ultimately tried to a jury, which found him guilty of repeated sexual assault of the victim. He subsequently moved for postconviction relief, asserting his trial attorney was ineffective by failing to move to suppress the DNA evidence obtained from the genital swabs. The circuit court denied Thomas's motion, following a Machner2 hearing, and this appeal follows.

DISCUSSION
I. Ineffective assistance

¶ 12 To prevail on an ineffective assistance of counsel claim, a defendant must show both that his or her attorney performed deficiently and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If a defendant fails to make a sufficient showing on one prong of the Strickland test, we need not address the other. Id. at 697. Here, we need not address prejudice because Thomas has failed to establish that his trial attorney performed deficiently.

¶ 13 To prove deficient performance, a defendant must identify specific acts or omissions by his or her attorney that fall “outside the wide range of professionally competent assistance.” Id. at 690. Thomas argues his trial attorney performed deficiently by failing to move to suppress the DNA evidence obtained from the warrantless genital swabs. However, [i]t is well-established that an attorney's failure to pursue a meritless motion does not constitute deficient performance.” State v. Cummings, 199 Wis.2d 721, 747 n. 10, 546 N.W.2d 406 (1996). For the reasons explained below, we conclude a motion to suppress the DNA evidence would have been properly denied, and, accordingly, Thomas's trial attorney did not perform deficiently by failing to file a suppression motion.

¶ 14 “The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures.” State v. Artic, 2010 WI 83, ¶ 28, 327 Wis.2d 392, 786 N.W.2d 430. A warrantless search is per se unreasonable, unless one of several clearly delineated exceptions to the warrant requirement applies. Id., ¶ 29. The State argues, and the circuit court agreed, that the warrantless swabs of Thomas's genitals fell within two exceptions to the warrant requirement-the consent exception and the exigent circumstances exception. We conclude the consent exception applies, and we therefore decline to address exigent circumstances. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct.App.1989) ([C]ases should be decided on the narrowest possible ground.”).3

¶ 15 “To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and,...

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