State v. Vallera
| Decision Date | 20 October 1993 |
| Docket Number | No. 93-0339-CR,93-0339-CR |
| Citation | 179 Wis.2d 851,514 N.W.2d 724 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Scott VALLERA, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before ANDERSON, P.J., BROWN and SNYDER, JJ.
BROWN.
Scott Vallera appeals his conviction and sentence for one count of criminal damage to property by explosives and for five counts of first-degree recklessly endangering safety. Vallera raises many issues, which we address separately. We affirm the judgments of conviction and his sentence. We also affirm the order denying Vallera's postconviction motion for modification of his sentence.
On November 10, 1991, Vallera dropped an explosive devise down a vent into the furnace on the second floor of Mr. Big's, a tavern in Oshkosh. The explosion shook the bar, which had about twenty to twenty-five patrons at the time. The tavern owner, suspecting that someone had dropped a bomb through a vent on the roof, told a bar employee to go to the roof to investigate. Subsequently, the employee saw Vallera come around a corner on the roof, climb down onto a shed and then onto and over a fence. Another bar employee joined the search, and a chase ensued. The two bar employees eventually caught Vallera and took him back to the bar.
When the police arrived, the owner told an officer about the explosion and that they caught Vallera coming off the roof of the bar. The officers arrested Vallera, handcuffed him and put him in the squad car. It had stopped snowing ten or fifteen minutes beforehand, and the snow had started to melt. Thinking that there might be footprints on the roof, one of the officers seized Vallera's shoes and took them to the roof for comparison. Another officer photographed the tread pattern of one of Vallera's shoes next to the footprints on the roof.
About one month before trial, Vallera moved to suppress the footprint evidence on the ground that it was obtained from an unreasonable seizure of Vallera's shoes. The trial court deemed the objection waived because the motion was not filed within ten days after the arraignment, contrary to sec. 971.31(2) and (5), Stats. The court noted that Vallera's attorney was aware of the evidence and did not object at the preliminary hearing to its use.
The trial court also ruled, during the pretrial motion hearing, that the prosecution could present the tavern owner's testimony about a previous incident involving Vallera. During the summer of 1991, after being denied admission to the bar because of his involvement in a fight, Vallera allegedly threatened to close down the bar. The trial court concluded that the evidence was relevant to show motive for the bomb incident, not propensity for violence or evidence of violent character.
Also before trial, the court determined Vallera's number of prior convictions for the purpose of evaluating the defendant's credibility under sec. 906.09, Stats. The state sought to admit evidence of seven prior misdemeanor convictions. The court concluded that, if asked, Vallera would answer that he had been convicted of seven crimes.
At trial, the police officers, admitting that they were not footprint experts, testified that the tread pattern of Vallera's shoe matched or was similar to the footprints in the snow. Vallera presented the testimony of a footprint identification expert who testified that the placement of the shoe in the photograph might cause prejudice. The expert stated that
The state also presented various expert witnesses who testified about the potential danger created by the explosion. For instance, an enforcement officer with the United States Bureau of Alcohol, Tobacco and Firearms testified that the explosive device had the potential to rupture the gas line, and if someone had been upstairs at the tavern, that person could have been injured or killed.
Vallera was convicted of one count of criminal damage to property by explosives, contrary to sec. 943.02(1)(c), Stats., for which he was sentenced to prison for twenty years. He was also convicted of five counts of first-degree recklessly endangering safety, contrary to sec. 941.30(1), Stats., for which the trial court placed Vallera on probation for five years for each count to be served concurrently with each other but consecutive to the prison term for criminal damage to property. 1
Vallera attacks the search and seizure in this case as not in compliance with sec. 968.11, Stats., and the fourth amendment on these grounds: (1) he was not under arrest when the shoes were seized, (2) the search was not conducted pursuant to one of the permissible purposes within sec. 968.11, and (3) the shoes were not seized contemporaneously with the arrest. The propriety of a search and seizure presents a question of law which we review de novo. See State v. Tompkins, 144 Wis.2d 116, 121, 423 N.W.2d 823, 825 (1988).
Pursuant to sec. 968.11, Stats., an officer may reasonably search a person lawfully arrested and "an area within such person's immediate presence for the purpose of ... [d]iscovering and seizing any ... things which may have been used in the commission of, or which may constitute evidence of, the offense." Id. Our supreme court has construed sec. 968.11 as consistent with the constitutional test for a search incident to arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). State v. Fry, 131 Wis.2d 153, 165, 388 N.W.2d 565, 570, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 586 (1986).
First, we address Vallera's argument that he was not under arrest when the shoes were seized. One of the officers testified at trial that he arrested Vallera, handcuffed him and put him in the squad car. Vallera did not present testimony at trial controverting the officer's testimony. In fact, Vallera uses the word "arrest" in his brief-in-chief when describing the officer's conduct. 2 Therefore, the condition precedent to a search incident to an arrest, a lawful arrest, is met. See Tompkins, 144 Wis.2d at 122, 423 N.W.2d at 825.
Second, we hold that the search and subsequent seizure were conducted pursuant to the permissible purposes within sec. 968.11, Stats. Section 968.11 defines one of the underlying justifications for a search incident to an arrest as "[d]iscovering and seizing ... things which may have been used in ... the offense." The state does not have to prove the officer's subjective intent in conducting such a search. Fry, 131 Wis.2d at 168-69, 388 N.W.2d at 572. Because Vallera would have been wearing his shoes if he was up on the tavern roof and because it had been snowing, the shoes were, therefore, possible evidence of the offense. Thus, the shoes were seized pursuant to a permissible purpose--to seize possible evidence.
Next, we address Vallera's contemporaneity argument. Id. at 180, 388 N.W.2d at 577 (citation omitted). Approximately ten minutes elapsed between the time that the officer arrested Vallera and the time that he seized Vallera's shoes at the arrest scene. The officer's purpose, seizing evidence, persisted while Vallera was at the arrest scene, still in possession of his shoes, and while the snow remained on the roof. We hold that the search was contemporaneous with the arrest.
Vallera raises two issues that we need not address. He argues that the trial court erred in dismissing his motion to suppress the footprint evidence and that trial counsel's failure to timely raise the motion to suppress constituted ineffective assistance of counsel. 3 Because we hold that Vallera would not have succeeded on a motion to suppress the footprint evidence, these issues are moot.
Alternatively, there was evidence that Vallera consented to the search and we accept this inference.
Vallera contends that the officers were not experts and, therefore, not competent to testify about footprint evidence. The state does not dispute Vallera's contention that the officers were not experts regarding footprint evidence. The state, however, contends that the trial court did not err in permitting the officers to testify about the footprint evidence as lay witnesses, pursuant to secs. 907.01 and 906.01, Stats. We hold that the trial court did not misuse its discretion when it allowed the officers' testimony about the footprint evidence.
"[T]he admission of opinion evidence rests largely in the discretion of the trial court." Simpson v. State, 62 Wis.2d 605, 609, 215 N.W.2d 435, 437 (1974). We will sustain a trial court's discretionary decision if the court "has examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." See Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis.2d 296, 306, 470 N.W.2d 873, 876 (1991).
First, we hold that the officers were competent to testify as lay witnesses. As the trial court stated during the postconviction hearing, Section 906.01, Stats.; see State v. Hanson, 149 Wis.2d 474, 476, 439 N.W.2d 133, 136 (1989). Regarding the testimony of lay witnesses, the emphasis during trial should be on ...
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