State v. Antwan Eugene Gill ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 6, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP654-CR Cir. Ct. No. 2017CM172
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ANTWAN EUGENE GILL,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Monroe County: TODD L. ZIEGLER, Judge. Affirmed.
¶1 GRAHAM, J.1 Antwan Gill appeals a judgment of conviction for
possession of tetrahydrocannibinol (THC) and for operating a motor vehicle with a
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-2022 version.
No. 2022AP654-CR
detectable amount of THC in his blood, as well as a circuit court order denying his
motion for postconviction relief. Gill asserts that his trial counsel was ineffective
for failing to file a pretrial motion to suppress evidence obtained during a traffic
stop, and for failing to more effectively cross-examine the state trooper who
conducted the stop at trial. I conclude that trial counsel was not ineffective, and
therefore, I affirm.
BACKGROUND
¶2 Following a traffic stop, Gill was arrested for operating a motor
vehicle while intoxicated (OWI)2 and for possession of THC. Gill pled not guilty
to these charges, and his case proceeded to a jury trial. After he was convicted,
Gill filed a postconviction motion, the circuit court held a Machner hearing,3 and
the court denied his motion. The following summary of facts is derived from the
trial evidence and the evidence introduced during the Machner hearing, which
includes the testimony, the police report, and squad-camera footage of the traffic
stop.
¶3 Shortly before 4:00 a.m. on a Friday morning, the officer in question
stopped the vehicle Gill was driving after he observed it moving at a rate of 84
miles per hour in a 70 mile per hour zone. The officer approached the passenger
side door of the vehicle. He later wrote in his report that, as Gill’s passenger
2
The Wisconsin Jury Instructions use “OWI” as an umbrella term, which encompasses
three different offenses: operating a motor vehicle while under the influence of an intoxicant or a
controlled substance to a degree that renders the driver incapable of safely driving contrary to
WIS. STAT. § 346.63(1)(a); operating a motor vehicle with a prohibited alcohol concentration
contrary to § 346.63(1)(b); and operating a motor vehicle with a detectable amount of a restricted
controlled substance in the blood contrary to § 346.63(1)(am).
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
No. 2022AP654-CR
rolled down her window, he “detect[ed] a faint and transient odor consistent with
the odor of burned marijuana.” At trial, the officer testified that he “briefly
detected a faint and transient odor which smelled like raw marijuana and burned
marijuana, but it was very brief, kind of as the wind swirled.”
¶4 The officer asked Gill for his driver’s license and learned that it had
been revoked. He returned to his squad car and wrote a citation for operating
without a license and a warning for speeding.
¶5 After the officer returned to Gill’s vehicle, he noticed a rolled
cigarette in the cup holder between Gill and his passenger that was consistent in
appearance with a burned marijuana cigarette, sometimes referred to as a “roach.”
Gill handed it to the officer, and the officer observed that it contained a small
amount of a burned and raw substance consistent with the appearance and odor of
marijuana. He remarked that “it looks kind of like a roach” and asked Gill when
he last smoked. Gill said he did not know, and that the marijuana cigarette was
“old as hell.”
¶6 The officer directed Gill to step out of the vehicle and conducted a
pat-down search of his outer clothing.4 The officer later indicated in his police
report and at trial that he detected a light odor of an intoxicating beverage when he
was standing downwind from Gill. The officer told Gill to sit in his squad car,
stating that “no one is under arrest.” The officer then asked the passenger to exit
the vehicle and patted her clothing down. After the officer asked whether there
was “anything else” in the vehicle, the passenger indicated that the cooler in the
4
See Terry v. Ohio, 391 U.S. 1 (1968).
3
No. 2022AP654-CR
backseat contained alcoholic beverages. The officer remarked that he could
“smell weed on [the passenger’s] breath” and asked if she had smoked marijuana
that day. The passenger responded that she does not smoke marijuana and blew
towards the officer so that he could smell her breath. The officer indicated that he
did not smell marijuana on her breath, and he suggested that the smell might be
“coming from the car or … from the roach” that he had placed in his pocket. He
then directed the passenger to sit in his squad car, again stating that “no one is
under arrest.”
¶7 The officer proceeded to search Gill’s vehicle, locating an open and
partially consumed bottle of whiskey within reach of the driver’s seat. When a
second trooper arrived on the scene, the officer was recorded telling his colleague
that he had found a “roach” in the cup holder, that the officer “didn’t smell
anything except cigarettes and air freshener,” that he was going to “put [Gill]
through field [sobriety testing],” and that he was going to give the passenger a
preliminary breath test “because she’s the only valid driver.”
¶8 The officer continued searching the vehicle and discovered a second
rolled cigarette that smelled of burned marijuana. He later wrote in his police
report that he found the second cigarette in a compartment in the armrest of the
driver’s side door. At trial, he initially testified he found it by the passenger
floorboard but, upon having his recollection refreshed by his report, he testified
that “[i]t appears” he had reported that the second marijuana cigarette “was in the
driver’s door pocket.”
¶9 Following the vehicle search, the officer asked Gill to step out of the
squad car and the two began talking. The officer asked about the bottle of
whiskey, and Gill indicated it was “an old bottle.” The officer told Gill that it was
4
No. 2022AP654-CR
illegal to have “open containers in the car,” and that the bottle had been “in perfect
reach [of] the driver.” Gill denied that he had been drinking that night. The
officer indicated that he was going to do some tests, and he asked, “when’s the last
time you smoked?” Gill responded that it was “probably yesterday” and estimated
that it had been around midnight the day before. When the officer sought
clarification, Gill indicated that he meant that it had been more than 24 hours since
he last smoked.5
¶10 The officer then subjected Gill to field sobriety testing, and he
determined that Gill exhibited signs of impairment. The officer placed Gill under
arrest, and Gill consented to having his blood drawn for chemical testing. The
State tested Gill’s blood sample, and the results indicated that Gill’s blood
contained a detectable amount of delta-9 THC, which is the active ingredient in
marijuana. The State also tested one of the cigarettes seized from Gill’s vehicle,
which also tested positive for THC.
¶11 The State charged Gill with one count of possession of THC in
violation of WIS. STAT. § 961.41(3g)(e), and one count of operating a motor
vehicle while intoxicated in violation of WIS. STAT. § 346.63(1)(a). The State
later filed an amended complaint, adding a third criminal count of operating a
motor vehicle with a detectable amount of a restricted controlled substance in the
blood in violation of § 346.63(1)(am). The State issued Gill traffic citations for
driving with a suspended license and with an open container of intoxicants.
5
The officer also asked Gill to consent to a preliminary breath test. The results of those
tests were not admitted at trial, and the circuit court sustained trial counsel’s objection when the
State asked the trooper about that topic.
5
No. 2022AP654-CR
¶12 Gill’s case proceeded to a two-day jury trial. At the trial, the State’s
witnesses included the officer who conducted the traffic stop and searched Gill’s
vehicle, and it introduced into evidence the portions of the officer’s squad-camera
footage during which the officer administered field sobriety testing. The State
also presented testimony from, among others, the chemist who tested Gill’s blood
for the presence of THC and the forensic scientist who tested the contents of one
of the cigarettes seized from the vehicle, and it introduced the lab results and a
portion of the officer’s police report as exhibits.
¶13 The focus of Gill’s defense was on attacking the charge of operating
while under the influence of a restricted controlled substance. Trial counsel noted
that the traffic stop had lasted more than 40 minutes before the officer asked Gill
to perform field sobriety tests, and that, up until that point, the officer had not
observed any signs of impairment. Counsel extensively cross-examined the
officer about whether field sobriety testing is effective at detecting marijuana
impairment, as well as the officer’s “process” for evaluating the results of such
testing. Counsel emphasized that the amount of THC detected in Gill’s blood was
just above the reporting threshold, and that the chemist who tested Gill’s blood
could not testify as to when Gill had last consumed marijuana or whether he was
impaired.
¶14 Trial counsel’s strategy did not appear to fundamentally challenge
the possession of marijuana charge or the charge of operating a motor vehicle with
a detectable amount of a restricted controlled substance in the blood. At most,
counsel emphasized that the officer had smelled marijuana on Gill’s passenger and
not on Gill, and he cross-examined the chemist about the reporting threshold for
THC.
6
No. 2022AP654-CR
¶15 The jury found Gill guilty of possessing THC, and of operating a
motor vehicle with a detectable amount of THC in his blood. It acquitted Gill of
the charge of operating a motor vehicle while under the influence of a controlled
substance.
¶16 Following his conviction, Gill filed a motion for postconviction
relief alleging ineffective assistance of counsel. Gill alleged that trial counsel was
ineffective for failing to file a pretrial motion to suppress evidence regarding the
field sobriety tests and the chemical testing of Gill’s blood. Gill also alleged that
the officer’s statements and actions at the scene, as captured on the squad-camera
footage, were inconsistent with the statements in his police report and his
testimony at trial regarding the odors the officer smelled during the stop. Gill
argued that trial counsel had been ineffective for failing to more effectively bring
out these alleged inconsistencies during trial.
¶17 The circuit court held a Machner hearing. Trial counsel testified
that he had not filed a motion to suppress because the officer found “used”
marijuana in the vehicle, and counsel’s judgment was that a suppression motion
would have been denied. In response to questioning about the officer’s allegedly
inconsistent remarks regarding the odors he detected during the traffic stop, trial
counsel acknowledged that such alleged inconsistencies could form the basis of a
motion to suppress, but that “the way the evidence came out at trial … crystallized
this issue in a way that I didn’t fully recognize prior to trial.” When asked about
his examination of the officer, trial counsel testified that he had no strategic reason
for not cross-examining the officer about his allegedly inconsistent statements.
¶18 The officer also testified at the Machner hearing. For his part, the
officer reaffirmed that he smelled a transient odor of marijuana when he initially
7
No. 2022AP654-CR
approached Gill’s vehicle, and that he “believed” that he had detected the odor of
intoxicants when speaking with Gill during the pat-down search. The officer was
also asked about a portion of the squad-camera footage that had not been played to
the jury—as mentioned, during that portion of the footage, the officer was
recorded telling a second trooper that he “didn’t smell anything except cigarettes
and air freshener.” During the Machner hearing, the officer clarified that he was
telling his colleague about the odors he detected when he searched Gill’s vehicle,
and that the officer was not commenting on the other odors he had detected during
the course of the stop.
¶19 The circuit court issued an oral ruling denying Gill’s postconviction
motion. The court concluded that trial counsel was not ineffective with regard to a
potential motion to suppress because the court would have denied any such
motion. As the court explained, it found the officer’s testimony to be credible, and
it concluded that, at the time “Gill was requested to perform field sobriety tests,”
there was reasonable suspicion that Gill had committed an OWI-related offense,
the investigation of which would be furthered by subjecting Gill to field sobriety
testing. The court also concluded that trial counsel was not ineffective for failing
to cross-examine the officer on the specific topics raised in Gill’s postconviction
motion. I discuss Gill’s arguments and the court’s specific rulings at greater
length below.
¶20 The circuit court entered an order denying the postconviction
motion. Gill appeals.
DISCUSSION
¶21 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
8
No. 2022AP654-CR
counsel.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d
93 (quoting State v. Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d
232). “The same right is guaranteed under Article I, Section 7 of the Wisconsin
Constitution.” Id. Gill asserts that he was denied the effective assistance of
counsel, and that his judgment of conviction should be vacated on that basis.
¶22 To demonstrate that counsel’s assistance was ineffective, a
defendant must establish that counsel’s performance was deficient and that the
deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel’s performance is constitutionally deficient only if it falls
below an objective standard of reasonableness. State v. Thiel, 2003 WI 111, ¶19,
264 Wis. 2d 571, 665 N.W.2d 305. Counsel’s deficient performance is prejudicial
if “there is a reasonable probability that, but for counsel’s unprofessional errors,
the results of the proceeding would have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id.¶23 “Whether a defendant was denied effective assistance of counsel
presents a mixed question of law and fact.” Breitzman, 378 Wis. 2d 431, ¶37.
“The factual circumstances of the case and trial counsel’s conduct and strategy are
findings of fact, which will not be overturned unless clearly erroneous[.]” Id.Whether counsel’s conduct constitutes ineffective assistance is a question of law
that I review de novo. Id.¶24 On appeal, Gill renews his two theories of ineffective assistance of
counsel. He first argues that trial counsel was ineffective for failing to file a
pretrial motion to suppress, and second, that counsel’s cross-examination of the
officer who conducted the stop was ineffective. I address these arguments in turn.
9
No. 2022AP654-CR
I.
¶25 Gill argues that, had trial counsel filed a motion to suppress the
results of the field sobriety and blood tests, the motion would have been granted,
and he would not have been convicted of operating a motor vehicle with a
detectable amount of THC in his blood.6 In determining whether counsel was
ineffective for failing to file a suppression motion, I consider the merits of the
motion that counsel could have filed. See State v. Sanders, 2018 WI 51, ¶29, 381
Wis. 2d 522, 912 N.W.2d 16 (“Counsel does not perform deficiently by failing to
bring a meritless motion.”). I analyze whether a motion would have been
successful under a two-part standard of review: I will uphold the findings of fact
by the circuit court unless they are clearly erroneous, and I will independently
review whether those facts warrant suppression. State v. Scull, 2015 WI 22, ¶16,
361 Wis. 2d 288, 862 N.W.2d 562.
¶26 The Fourth Amendment to the United States Constitution and
Article I, Section 11, of the Wisconsin Constitution protect persons against
unreasonable searches and seizures. The temporary detention of individuals
during a traffic stop, “even if only for a brief period [of time] and for a limited
purpose, constitutes a ‘seizure’ of ‘persons’” within the meaning of these
constitutional provisions. State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765
6
Gill’s postconviction motion and appeal purport to challenge both counts for which he
was convicted. However, Gill fails to explain how suppression of evidence regarding the field
sobriety and blood testing would create a reasonable probability of a different outcome on the
possession of THC charge. Gill does not challenge the admission of evidence that he possessed
the marijuana cigarette or the lab report stating that the marijuana cigarette contained THC, and I
therefore consider Gill’s argument about suppression only as it relates to his conviction for
operating with a detectable amount of THC in his blood.
10
No. 2022AP654-CR
N.W.2d 569 (citation omitted). Accordingly, a traffic stop must be reasonable
under the circumstances. Id.¶27 A traffic stop is reasonable at its inception if an officer “reasonably
suspects” that a person has committed or is about to commit a crime or a violation
of the non-criminal traffic laws. County of Jefferson v. Renz, 231 Wis. 2d 293,
310, 603 N.W.2d 541 (1999). If, during a valid traffic stop, an officer becomes
aware of additional facts that are sufficient to give rise to reasonable suspicion that
the person has committed or is committing an offense separate and distinct from
the offense that initially prompted the traffic stop, the stop may be extended and a
new investigation begun. State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499(Ct. App. 1999). Field sobriety tests further the investigation of OWI-related
offenses, and such tests are lawfully administered during a traffic stop if supported
by reasonable suspicion that the suspect has committed an OWI-related offense.
State v. Hogan, 2015 WI 76, ¶37, 364 Wis. 2d 167, 868 N.W.2d 124; State v.
Adell, 2021 WI App 72, ¶18, 399 Wis. 2d 399, 966 N.W.2d 115.
¶28 Here, there is no dispute that the officer stopped Gill’s vehicle
because it was speeding, and that the initial stop was valid. Gill likewise does not
challenge that, upon observing the first partially smoked “roach” in Gill’s cup
holder, the officer had probable cause to search his vehicle. See State v. Secrist,
224 Wis. 2d 201, 209, 589 N.W.2d 387 (1999). Gill’s only argument in favor of
suppression is that the officer lacked reasonable suspicion to believe that Gill had
committed an OWI-related offense sufficient to expand the scope of the initial
traffic stop to administer the field sobriety tests. I therefore consider whether the
facts known to the officer at the time he directed Gill to perform field sobriety
tests would give a reasonable officer reasonable suspicion to believe that Gill had
been operating his vehicle while under the influence of an intoxicant or a
11
No. 2022AP654-CR
controlled substance in violation of WIS. STAT. § 346.63(1)(a); operating with a
prohibited alcohol concentration in violation of § 346.63(1)(b); or operating with a
detectable amount of a restricted controlled substance in the blood in violation of
§ 346.63(1)(am).7
7
Gill devotes a large portion of his briefing to an argument about timing. Specifically,
Gill argues that the proper moment to measure reasonable suspicion is the moment that the officer
was recorded telling his colleague that he planned to subject Gill to field sobriety testing, which
occurred approximately 7 minutes before the officer directed Gill to perform the tests. According
to Gill, reasonable suspicion should be evaluated at that moment because that was when the
officer subjectively resolved to perform the tests.
Gill’s focus on timing is somewhat beside the point in this case. Even if I were to
consider only those facts that were known to the officer at the time he made his comment to his
colleague, I would still conclude that the officer had reasonable suspicion to conduct field
sobriety testing.
That said, Gill’s argument about timing is legally incorrect. Our cases do not measure
reasonable suspicion from the moment an officer subjectively decides to conduct a search or
seizure, in large part because reasonable suspicion is an objective inquiry. State v. Mata, 230
Wis. 2d 567, 574, 602 N.W.2d 158 (Ct. App. 1999). Our cases do not consider what actually
motivated an officer to search, and instead consider whether there was reasonable suspicion for a
search or seizure immediately before the search or seizure took place. See State v. Richardson,
156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990) (citing Terry, 392 U.S. at 21-22). Therefore, it
does not matter whether an officer’s assessment of reasonable suspicion at the time the officer
subjectively decides to perform field sobriety testing holds up, so long as a reasonable officer
would have had reasonable suspicion at the time the officer directs a suspect to perform those
tests.
Here, the initial traffic stop was a lawful seizure, and the officer was engaged in a lawful
search of Gill’s person and vehicle up through the point in time that the officer directed Gill to
perform field sobriety tests. An expansion of a lawful traffic stop to conduct field sobriety testing
is the expansion of a lawful seizure, and Wisconsin cases have assessed reasonable suspicion as
of the moment an officer asks a suspect to perform field sobriety tests. See, e.g., Town of
Freedom v. Fellinger, No. 2013AP614, unpublished slip. op. ¶¶22-23 (WI App Aug. 6, 2013)
(considering the moment that the officer requested suspect leave his vehicle to perform field
sobriety tests); Village of Little Chute v. Rosin, No. 2013AP2536, unpublished slip. op. ¶17 (WI
App Feb. 25, 2014) (“an officer must have reasonable suspicion that the driver is impaired before
requesting field sobriety tests”); Village of Ashwaubenon v. Bowe, No. 2016AP594, unpublished
slip. op. ¶12 (WI App Feb. 14, 2017) (“an officer may request a driver to perform field sobriety
tests when the officer has reasonable suspicion” (citing County of Jefferson v. Renz, 231 Wis. 2d
293, 310, 603 N.W.2d 541 (1999)). I cite authored, unpublished, one-judge opinions throughout
this opinion for their persuasive value pursuant to WIS. STAT. RULE 809.23(3)(b).
12
No. 2022AP654-CR
¶29 The test for reasonable suspicion is grounded in common sense—
what would a reasonable police officer reasonably suspect, in light of their training
and experience, based on the totality of the facts and circumstances and the
reasonable inferences to be drawn therefrom. State v. Post, 2007 WI 60, ¶13, 301
Wis. 2d 1, 733 N.W.2d 634. Reasonable suspicion is not a high bar, State v.
Genous, 2021 WI 50, ¶8, 397 Wis. 2d 293, 961 N.W.2d 41, and “the level of
suspicion the standard requires is considerably less than proof of wrongdoing by a
preponderance of the evidence, and obviously less than is necessary for probable
cause[.]” State v. Nimmer, 2022 WI 47, ¶25, 402 Wis. 2d 416, 975 N.W.2d 598(citation omitted).
¶30 Here, the officer observed signs of Gill’s risk-taking behavior and
nonconformity with the law. The officer observed Gill driving significantly in
excess of the speed limit at 4:00 a.m. on a Friday morning. See Adell, 399 Wis. 2d
399, ¶25 (a defendant’s speeding contributes to reasonable suspicion because it
shows risk-taking behavior and nonconformity with the law); Post, 301 Wis. 2d 1,
¶36 (time of day can be relevant to a reasonable suspicion inquiry, even if it is not
bar time). The officer also learned that Gill was driving without a valid license,
which is a civil traffic violation that also suggests nonconformance with the law.
See id.; Town of Freedom v. Fellinger, No. 2013AP614, unpublished slip. op. ¶24
(WI App Aug. 6, 2013).
¶31 More significantly, the officer, who was trained in identifying the
odor and appearance of marijuana, observed several signs of recent marijuana
consumption. The officer detected the faint and transient odor of marijuana when
he first made contact with Gill’s vehicle. See Adell, 399 Wis. 2d 399, ¶23
(incriminating odors add to reasonable suspicion); see also Secrist, 224 Wis. 2d at210-11 (citing with approval holding from State v. Judge, 275 N.J. Super. 194,
13
No. 2022AP654-CR
645 A.2d 1224, 1228 (N.J. App. Div. 1994), that the odor of burned marijuana in a
vehicle creates an inference that marijuana is not only physically present, but also
that some of it has been recently smoked). The officer also found two partially
smoked cigarettes that appeared to contain marijuana and that had not yet been
discarded—one in the cup holder between Gill and his passenger, and the second
in a pocket in the car door. Gill tacitly admitted to consuming marijuana by
stating that he could not recall the last time that he had smoked. See id. Although
Gill stated that the marijuana cigarette in the cup holder was “old as hell,” the
officer did not need to accept Gill’s assertion at face value. See State v. Nieves,
2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125 (officers need not
accept suspect’s innocent explanations for suspicious behaviors); Hogan, 364
Wis. 2d 167, ¶¶36, 50 (same).
¶32 Finally, in addition to the signs of recent marijuana use, the officer
observed several signs of alcohol consumption. The cooler full of alcohol in the
back seat was lawful, but when viewed together with the early morning hour, the
officer could reasonably infer that Gill was coming from some kind of gathering
where alcohol had been consumed. The officer detected an odor of intoxicating
beverages when patting down Gill’s clothing, see Renz, 231 Wis. 2d at 316-17(odor of intoxicants is an indicator of intoxication), and Gill denied drinking at all,
despite the odor of alcohol coming from his person. See County of Jefferson v.
Wedl, No. 2022AP328, unpublished slip. op. ¶40 (WI App Sept. 9, 2022) (a
suspect’s denial of obviously true facts may suggest consciousness of guilt). The
open and partially consumed bottle of whiskey within reach of the driver’s seat
was not only a civil traffic violation in itself, again evincing Gill’s nonconformity
with the law, but like the partially consumed marijuana cigarettes, it led to an
inference that Gill had consumed alcohol while in the vehicle.
14
No. 2022AP654-CR
¶33 Gill asks me to disregard several of the above facts as clearly
erroneous, but none of his arguments are meritorious.
¶34 Gill first challenges the circuit court’s findings that the officer
detected the faint and transient odor of marijuana when he first approached the
vehicle, and the court’s finding that the officer detected the light odor of an
intoxicating beverage when he was standing downwind of Gill. Gill points to the
fact that the squad-camera footage does not show the officer visibly or audibly
reacting to those odors, and he contrasts this lack of reaction with the portion of
the footage during which the officer commented that he smelled marijuana on the
passenger’s breath. Gill also points to the officer’s statement to his colleague that
all he smelled was “cigarettes and air freshener,” and he argues that, had the
officer actually detected the odor of marijuana near the vehicle or the odor of
intoxicants downwind of Gill, he would have mentioned those facts to his
colleague at the scene. Gill argues that the evidence shows that, contrary to his
police report and testimony, the officer did not actually smell marijuana when he
first approached the vehicle or the odor of intoxicants on Gill.
¶35 These arguments fail to show that the circuit court’s findings are
clearly erroneous. I will not substitute my judgment for that of the circuit court as
to the officer’s credibility, see Turner v. State, 76 Wis. 2d 1, 18, 250 N.W.2d 706(1977), and here, the court explicitly found the officer’s testimony on these points
to be credible. For my part, I do not view the officer’s reactions on the squad-
camera footage to be inconsistent with his statements in his police report or trial
testimony, nor do I view the fact that the officer did not specifically tell his
colleague that he had detected those odors as an indication that he did not actually
detect them.
15
No. 2022AP654-CR
¶36 Gill also challenges the circuit court’s finding that the officer
discovered a second marijuana cigarette in the driver’s side door compartment.
Gill argues that this finding is clearly erroneous because the officer initially
testified that he found the second marijuana cigarette on the passenger side of the
vehicle, and only changed his testimony about its location after the prosecutor
refreshed his recollection with his police report. Gill’s argument is not persuasive
for two reasons. First, the trial took place four years after the stop, and the fact
that the officer did not recall the location of the second marijuana cigarette without
the assistance of his police report does not render his testimony incredible. And
second, the location of the second marijuana cigarette is not especially material to
the reasonable suspicion analysis—I would still conclude that the officer had
reasonable suspicion to conduct field sobriety testing, even if the officer found the
second marijuana cigarette on the passenger side of the vehicle, or if the officer
did not find the second marijuana cigarette at all.8
8
Gill also points to several other alleged inaccuracies or inconsistencies in various
statements by the officer, but he fails to convince me that the officer’s statements were inaccurate
or inconsistent in any way that matters. For example, Gill states that the officer “incorrectly
estimated [at trial] that approximately 10-15 minutes had passed” from when he “first had contact
with Mr. Gill” to when he conducted field sobriety testing, when in reality nearly 40 minutes had
passed. However, Gill does not explain how the officer’s inaccurate estimate detracts from
reasonable suspicion or would support a motion to suppress. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (an appellate court may decline to review general
statements that are not developed themes reflecting any legal reasoning). As another example,
Gill argues that the officer described the odor of marijuana he initially detected on the passenger
differently in the squad-camera footage and in his police report. He points out that, in the
footage, the officer claimed to detect the odor of marijuana on the passenger’s breath, but in his
police report claimed to detect the faint and transient odor near the passenger. However, Gill
fails to explain how this purported inconsistency affects the reasonable suspicion analysis,
particularly in this case in which, upon further investigation, the officer determined he did not
smell the odor of marijuana on the passenger’s breath and instead attributed it to the marijuana
cigarette he had confiscated and had placed in the pocket of his pants.
16
No. 2022AP654-CR
¶37 Gill also argues that, even if the circuit court’s findings of fact are
not clearly erroneous, several of the facts found by the court add little to the
reasonable suspicion analysis. For example, he argues that the fact that the officer
detected an odor of marijuana when he first approached the vehicle is immaterial
because the officer could not necessarily attribute the odor to Gill. I disagree.
That the officer detected any odor of marijuana near the vehicle creates a
reasonable inference that one or both of the vehicle’s occupants recently
consumed marijuana. Reasonable suspicion is a low bar, Genous, 397 Wis. 2d
293, ¶8, and the officer need not have ruled out the passenger as a source of the
odor to reasonably suspect that Gill had committed an OWI-related offense,
sufficient to conduct field sobriety testing.
¶38 Gill next argues that the presence of an “old roach” does not
contribute to reasonable suspicion that Gill was driving under the influence. I
disagree. Marijuana is illegal whether old or new, raw or burned, see WIS. STAT.
§ 961.41(3g)(e), as is operating a vehicle with a detectable amount of THC in the
blood. See WIS. STAT. § 346.63(1)(am) (prohibiting anyone from operating a
motor vehicle with a detectable amount of a restricted controlled substance in his
blood); WIS. STAT. § 340.01(50m) (defining restricted controlled substance to
include THC, the primary active ingredient in marijuana); see also State v.
Hubbard, No. 2014AP738-CR, unpublished slip. op. ¶8 (WI App Aug. 13, 2014).
Its presence in the vehicle contributed to reasonable suspicion that Gill may have
had a detectable amount of THC in his blood and here, the fact that both marijuana
cigarettes had been smoked but not yet discarded, and at least one was within
reach of the driver’s seat, further enhanced that suspicion.
¶39 Finally, Gill points out that the officer did not observe erratic driving
or physical indicia of intoxication. However, “there is no requirement that officers
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No. 2022AP654-CR
make these observations before requesting field sobriety tests.” Fellinger,
No. 2013AP614, ¶24. A suspect may violate WIS. STAT. § 346.63(1)(am) without
actually being impaired. Here, the officer observed sufficient signs of marijuana
consumption from which it was reasonable to infer that Gill had recently
consumed that substance and might have been driving with a detectable amount of
THC in his blood.
¶40 For all these reasons, I conclude that, based on the totality of the
circumstances, the officer had reasonable suspicion to believe that Gill operated a
motor vehicle with a detectable amount of THC in his blood, and I thus need not
reach the issue of whether the officer had reasonable suspicion to believe that Gill
had been operating a motor vehicle under the influence of an intoxicant or with a
prohibited blood alcohol concentration. I therefore conclude that the officer
reasonably expanded the traffic stop to perform field sobriety tests, and
accordingly, the circuit court would have denied any motion to suppress the results
of the field sobriety testing and the blood test that followed. Therefore, counsel
did not perform deficiently by failing to file a motion, and, for the same reason,
Gill has not shown that he was prejudiced by counsel’s failure to do so.
II.
¶41 Gill also argues that trial counsel’s examination of the officer was
ineffective. Specifically, he asserts that counsel should have cross-examined the
officer about the fact that he told his colleague that all he smelled was “cigarettes
and air freshener,” and the fact that the squad-camera footage shows him initially
reacting to the smell of marijuana that he attributed to the passenger’s breath. Gill
also argues that counsel was ineffective for allowing the officer to “change his
testimony” about where he found the second marijuana cigarette after his memory
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No. 2022AP654-CR
was refreshed by reading his police report.9 Gill contends that, had trial counsel
exposed what Gill characterizes as contradictions in the officer’s various
statements, the officer’s credibility would have been so thoroughly damaged that
the jury would not have found Gill guilty of possession of marijuana or operating a
motor vehicle with a detectable amount of a restricted controlled substance in his
blood. These arguments fail for the reasons explained by the circuit court, which
Gill does not show to be erroneous.
¶42 In regard to the officer’s recorded statement to his colleague about
“cigarettes and air freshener,” the circuit court found that this evidence was not
material to the issues at trial, and thus counsel’s performance was neither deficient
nor prejudicial. As the court explained, the jury was tasked with determining
whether Gill possessed THC and drove his vehicle while intoxicated or with a
detectable amount of THC in his blood—not about whether the officer lawfully
expanded the traffic stop to conduct field sobriety testing. The court further
explained that, had trial counsel cross-examined the officer about his “cigarettes
and air freshener” statement, the officer would have provided the same
clarification that he provided at the Machner hearing—that the officer was telling
his colleague about the odors he detected when he searched the vehicle, and was
not commenting on the odors he had smelled when he first approached the vehicle,
9
Throughout his briefing, Gill repeatedly characterizes the officer’s police report as
“admittedly inaccurate,” and Gill asserts that the officer “admitted” during the Machner hearing
that his police report “did not reflect what occurred on the video.” Gill supplies a single citation
to the portion of the hearing transcript in which the officer supposedly admits that his report is
inaccurate. In the cited portion, the officer acknowledges that his report states that he smelled
marijuana near the passenger, but that the squad-camera footage shows the officer initially
attributing the smell to the passenger’s breath. I do not view the cited testimony as an admission
that the officer’s report is inaccurate, and I caution Gill’s attorney to be more careful in her
representations about the record.
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No. 2022AP654-CR
when he conducted the pat-down searches, or when he examined the marijuana
cigarette.
¶43 In regard to trial counsel’s failure to cross-examine the officer about
his reaction to the smell of marijuana on the passenger, the circuit court again
found no deficiency and no prejudice. It explained that the trial was not about
“whether the passenger possessed the marijuana or was driving with a restricted
controlled substance,” but was instead about whether Gill had committed those
offenses.
¶44 Finally, in regard to trial counsel “allow[ing] [the officer] to change
his testimony” about where he discovered the second marijuana cigarette, the
circuit court found no deficient performance. It concluded that, had trial counsel
objected to the prosecutor’s attempt to refresh the officer’s recollection about
where he found that cigarette, counsel’s objection would have been overruled.
¶45 I agree with and adopt the circuit court’s analysis on these three
points. I further conclude that, for reasons I now explain, the officer’s testimony
and credibility on these topics was not directly material to the two charges for
which Gill was convicted, and that there is not a reasonable probability of a
different outcome on either of these charges, even if counsel had more thoroughly
addressed these topics at trial.
¶46 First, Gill was convicted of possession of THC, in violation of WIS.
STAT. § 961.41(3g)(e). That charge required proof of three elements: (1) the
defendant possessed a substance; (2) the substance was THC; and (3) the
defendant knew or believed that the substance was THC. WIS JI—CRIMINAL 6030
(2022). The jury instructions define “possession” as “knowingly [having] actual
physical control over a substance.” Id. The instructions clarify that “[p]ossession
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No. 2022AP654-CR
may be shared with another person” and that “[a] substance is in a person’s
possession if it is in an area over which the person has control and the person
intends to exercise control over the substance.” Id.
¶47 Here, the State established the essential elements of this offense
through the officer’s testimony that he discovered a marijuana cigarette in the cup
holder of Gill’s vehicle and that Gill acknowledged its presence; photographs of
the two marijuana cigarettes the officer seized; and the lab report indicating that
one of the cigarettes contained THC. The State did not need to prove that the
officer detected the odor of marijuana upon his initial approach of Gill’s vehicle to
prove that Gill possessed marijuana. And the fact that the officer initially detected
the odor of marijuana on Gill’s passenger did not provide Gill with a compelling
defense to the charge, given that possession may be shared among two individuals.
See id. Thus, Gill has not shown that further cross-examination on these points
would have created a reasonable probability of a different outcome on the
marijuana possession charge.
¶48 The same can also be said for Gill’s conviction of operating with a
detectable amount of a restricted controlled substance in his blood, in violation of
WIS. STAT. § 346.63(1)(am). That charge required proof of two elements: (1) the
defendant drove a motor vehicle on a highway; and (2) the defendant had a
detectable amount of a restricted controlled substance (here, delta-9 THC) in his
blood at the time the defendant drove a motor vehicle. WIS JI—CRIMINAL 2664B.
The State proved those two elements by introducing evidence that Gill had been
driving on a highway, and the lab report indicating his blood contained a
detectable amount of delta-9 THC when the sample was taken. See id. (the jury
may infer that a defendant had a detectable amount of a restricted controlled
substance in his blood at the time of driving based on those two facts). Whether or
21
No. 2022AP654-CR
not the officer smelled burned marijuana emitting from Gill’s vehicle, or detected
an odor of marijuana on Gill’s passenger, or discovered the second marijuana
cigarette on the passenger side of Gill’s vehicle, are all issues that are not material
to those two elements. Accordingly, Gill cannot show he was prejudiced by trial
counsel’s alleged failure to cross-examine the officer about these points.
¶49 Gill may be arguing that issues with the officer’s credibility would
have been so paramount to the jury that, had the officer’s alleged contradictions
been exposed, the jury would have disregarded all of the State’s evidence and the
jury instructions in their entirety. I disagree for two reasons. First, as noted
above, I do not find the officer’s testimony to be inconsistent on these points.
Second, I am not persuaded that, had the jury questioned the officer’s credibility
on the points discussed above, it may have disregarded the State’s evidence on
other points not affected by credibility issues. I am to presume that the jury
follows the instructions given to it by the circuit court, see State v. Truax, 151
Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989); State v. Deer, 125 Wis. 2d
357, 364, 372 N.W.2d 176 (Ct. App. 1985), and I have no reason to speculate that
the jury would have engaged in nullification had trial counsel exposed immaterial
inconsistencies in the officer’s testimony.
CONCLUSION
¶50 For the foregoing reasons, I affirm Gill’s judgment of conviction and
the circuit court’s order denying his motion for postconviction relief.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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