State v. Tomlinson, No. 00-3134-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 2002 WI 91,647 N.W.2d 177,254 Wis.2d 502
• Docket Number: No. 00-3134-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John TOMLINSON, Jr., Defendant-Appellant-Petitioner.
• Decision Date: 09 July 2002

254 Wis.2d 502
2002 WI 91
647 N.W.2d 177

STATE of Wisconsin, Plaintiff-Respondent,
v.
John TOMLINSON, Jr., Defendant-Appellant-Petitioner

No. 00-3134-CR.

Supreme Court of Wisconsin.

Oral argument May 2, 2002.

Decided July 9, 2002.

254 Wis.2d 509

For the defendant-appellant-petitioner there were briefs by John J. Grau and Grau Law Office, Waukesha, and oral argument by John J. Grau.

For the plaintiff-respondent the cause was argued by Eileen W. Pray,assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. JON P WILCOX, J.

This case is a review of

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a published decision of the court of appeals, State v. Tomlinson, 2001 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201, which upheld the conviction of John Tomlinson, Jr., for being a party to the crime of first-degree reckless homicide while using a dangerous weapon, in violation of Wis. Stat. §§ 940.02(1), 939.05, and 939.63 (1999-2000)¹.¶ 2. Tomlinson challenges his conviction on three disparate grounds. First, Tomlinson argues that the baseball bat and mop handles, which were allegedly used in the homicide and which were found in Tomlinson's house following his arrest, should have been suppressed because the police did not obtain proper consent to enter Tomlinson's house. Second, Tomlinson claims that the circuit court erred when it allowed the State to introduce a witness's preliminary hearing testimony after that witness asserted his Fifth Amendment privilege during trial. Third, Tomlinson claims that the circuit court erred in instructing the jury that a baseball bat constitutes a dangerous weapon

¶ 3. The Milwaukee County Circuit Court, Jeffrey A. Wagner, Judge, denied Tomlinson's post-conviction motions on each of the three claims. On appeal, the court of appeals upheld the ruling of the circuit court. See State v. Tomlinson, 2001 WI App 212, ¶ 1. Tomlinson petitioned this court for review, and we accepted. We now affirm the decision of the court of appeals on all three issues.

I. BACKGROUND

¶ 4. On February 27, 1999, Milwaukee Police Detective Dennis Kuchenreuther and several other members

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of the Milwaukee Police Department were investigating the death of Lewis Phillips. Phillips had suffered blunt force trauma to the head late on the night of February 5 or early on the morning of February 6, 1999, on the 1100 block of West Chambers Street in Milwaukee. Phillips died from his injuries several days later

¶ 5. During the investigation, police received information from Angela Green, a witness to several events which immediately followed the homicide. Green informed police that she had been walking on the 1100 block of West Chambers late in the evening of February 5 or early in the morning of February 6, 1999, when she heard a woman yell, "Kick the bitch in the head."

¶ 6. Green then observed a man walking toward her, carrying a baseball bat. She knew the man as "John" or "Red." Green also saw two teenaged girls, whom Green recognized as the man's daughters, carrying what appeared to be broom or mop handles. After Green passed them on the street, she came upon Phillips, who was on the ground, bleeding from the head. Green identified a photograph of Tomlinson as the man she knew as "John" or "Red." Green also identified the woman's voice she had heard as Tomlinson's wife. Green informed the police of Tomlinson's address, and pointed out the house to the officers.

¶ 7. At about 8:50 p.m. that same day, Detective Kuchenreuther and the other officers went to Tomlinson's house and knocked on the back door. According to Kuchenreuther's testimony, the officers were met at the door by an African-American female who appeared to be 15 or 16 years old. Tomlinson himself was standing nearby, in the house. According to Kuchenreuther, the girl identified herself, but the record does not reflect what that identification actually was. Kuchenreuther then informed the girl that they

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were looking for Tomlinson, and they asked for permission to enter the house. The girl said nothing, opened the door, and walked into the house. The officers followed her into the entryway and the kitchen area. The officers did not have a search warrant for the house or an arrest warrant for Tomlinson

¶ 8. After the officers entered the house, they placed Tomlinson, Tomlinson's wife (Michelle), and Tomlinson's two daughters (Monteria and Kamisha), under arrest. Later trial testimony confirmed that Monteria and Kamisha were 14 and 15 years old at the time. After being placed under arrest, Michelle, Monteria, and Kamisha asked if they could put shoes and socks on before they left. The officers allowed them to do so, and escorted the three into an adjoining bedroom. In the bedroom, in plain view, the officers observed a baseball bat and some broom or mop handles lying between the bed and the wall. The officers seized the items as evidence.

¶ 9. Tomlinson was charged with being a party to the crime of first-degree reckless homicide under Wis. Stat. §§ 940.02(1) and 939.05, and was charged with the penalty enhancer for the use of a dangerous weapon, under Wis. Stat. § 939.63.² Tomlinson pleaded not guilty.

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¶ 10. At the preliminary hearing, testimony was taken from Otis Coleman, another witness to the events surrounding the homicide. Coleman testified that he had seen Phillips on the night in question with two other people, whom Coleman described as one African-American male and one African-American female. Coleman identified the male as Tomlinson.

¶ 11. Coleman testified that Phillips had asked the female if he could buy a cigarette from her for a quarter. Coleman then heard the female respond, "I have to have 50 cents, nigger." Coleman testified that he then heard Phillips say "A quarter, bitch." Coleman then saw Tomlinson approach Phillips and ask, "What did you call my wife?" Coleman testified that the verbal altercation between Tomlinson and Phillips escalated, and that Tomlinson left the area, telling Phillips to be there when he got back.

¶ 12. Coleman testified that he and Phillips began walking away, when Tomlinson returned about two minutes later, carrying a baseball bat. Coleman testified that Tomlinson confronted Phillips, and struck him three times with the baseball bat: once in the leg, once in the head, and a third time after Phillips was on the ground.

¶ 13. At trial, the State called Coleman to testify. When the prosecutor asked Coleman if he was willing to answer questions regarding the case, Coleman responded:

I would — any questions asked here today, I would have to invoke my Fifth Amendment rights. It might tend to incriminate me. I don't care to do any talking about anything. I don't think I'm mentally stable enough at the present time to answer any questions about anything.

Coleman proceeded to invoke his Fifth Amendment privilege in response to all of the questions asked by the

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prosecutor. When the prosecutor asked what Coleman meant by his Fifth Amendment rights, Coleman responded:

I do not wish to say anything that might tend to incriminate me or to get me harmed in any way, shape or fashion.

Coleman continued to invoke the Fifth Amendment the entire time he was on the stand, even after being ordered by the court to answer the State's questions, and during an attempted cross-examination by defense counsel.

¶ 14. After Coleman was excused, the State moved to have Coleman declared unavailable under Wis. Stat. § 908.04(1)(a) and (b), and to have Coleman's preliminary hearing testimony admitted under the hearsay exception in Wis. Stat. § 908.045(1). The circuit court granted the State's motion, and allowed Coleman's preliminary hearing testimony to be introduced.

¶ 15. At the close of the trial, the court instructed the jury with regard to the dangerous weapon sentence enhancer. That instruction was:

If you find the defendant guilty, you must answer the following question. Did the defendant commit the crime of first-degree reckless homicide while using, threatening to use, or possessing a dangerous weapon?

Before you may answer the question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime while using, threatening to use, or possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime.

Dangerous weapon means a baseball bat.

When the court finished issuing the jury instructions, the prosecutor asked for a sidebar and the jury was

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excused. The prosecutor pointed out that there was a footnote in Wis JI — Criminal 990, the standard jury instruction for the dangerous weapon sentence enhancer, which suggested that it should be up to the jury to decide whether a baseball bat is a dangerous weapon.³

¶ 16. Tomlinson's defense attorney, when asked, stated that they wanted the jury instruction to remain as the court had read it. The prosecutor noted that leaving the jury instruction as it had been read would essentially relieve the State of its burden on that element, and asked the defendant if he understood that consequence. Tomlinson replied, "Yeah."

¶ 17. The court then asked the defendant the same question. Defense counsel again replied that they wanted the instruction the way it had been read. The

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court asked the defendant if he understood what was happening, to which the defense attorney replied, "[The defendant] told me yes and I'm repeating it. He told me yes." The jury found Tomlinson guilty of being party to the crime of first-degree reckless homicide while using a dangerous weapon, and he was sentenced to 38 years in prison.

¶ 18. Tomlinson filed a post-conviction motion challenging the propriety of the police search, the admissibility of Coleman's preliminary hearing testimony at trial, and the court's jury instruction on the dangerous weapon element. The circuit court denied Tomlinson's motion on all three issues. In a published opinion, ...