DocketNumber: No. 2011AP1852-CR
Citation Numbers: 344 Wis. 2d 142, 2012 WI App 104
Judges: Brown, Neubauer, Reilly
Filed Date: 8/1/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. Jason M. Jacobs was found guilty of homicide by use of a vehicle with a prohibited
BACKGROUND
¶ 2. On November 14, 2008, at 7:03 a.m., Jacobs ran a stop sign and crashed into another vehicle, killing the driver. From that point until Jacobs' arrival at the hospital for a blood draw, the facts are mostly undisputed. At the scene of the accident, police took Jacobs' driver's license and his cell phone. Jacobs was asked whether he had consumed any drugs or alcohol, which he denied, and then he completed a full range of field sobriety tests. There were a few indicia of impairment in both the horizontal and vertical gaze nystagmus tests. But the officer who performed the tests testified that he would not have placed Jacobs under arrest based upon his observations.
¶ 4. Jacobs then rode in the squad car to the hospital. The record indicates that his sister, who was at the scene by this point, offered to give him a ride, but the police expressed a preference for him to ride in the squad car. There is no indication in the record that Jacobs actively objected to riding in the squad car, but he did testify that he did not feel he had the choice to ride with his sister. Before getting in, however, Jacobs was told that he was not under arrest and was free to leave at any time.
¶ 5. During the twenty-minute ride to the hospital, Jacobs used the squad car's phone to call an attorney. The attorney advised Jacobs not to make any further statements or take any tests. When Jacobs informed the deputy driving the squad car of this advice, the deputy reiterated to Jacobs that he was not under arrest or required to take any tests. At the hospital, Jacobs, his fiancée,
¶ 6. The testimony of Jacobs' and the State's witnesses diverge after Jacobs was moved into the
¶ 7. Jacob claimed that, when the deputy returned, he indicated that there was a problem with the vertical nystagmus test. The deputy also allegedly stated, "I'm not really supposed to tell you this . . . but when you are involved in an accident where somebody is seriously injured or somebody dies, if you don't volunteer to take that test... we can arrest you." The deputy explained that if that were to happen, Jacobs would lose his license immediately and they would take the blood draw anyway. When both the deputy and the D.R.E. officer were back in the examination room, they exchanged glances and the D.R.E. officer reiterated a similar message. They also mentioned that it would "look[] better" if Jacobs volunteered.
¶ 8. Jacobs testified that he ultimately agreed to the draw after refusing three times and after the officers' statements that he would otherwise be arrested and lose his license. He stated that he consented because "it didn't matter at that point"; they were either going to take his blood based on his consent or based on his arrest. He did not want to be arrested, so he agreed to the draw. Jacobs' fiancée more or less corroborated Jacobs' testimony, stating that he agreed to the draw after refusing "a dozen" times in what she described as a "pretty intense" exchange.
¶ 9. The testimony of the two officers regarding the events at the hospital contrasted sharply with
¶ 10. After Jacobs agreed to the blood draw, he attempted to contact his attorney one more time prior to the draw, but the attorney did not answer the phone. Jacobs then signed two forms: A Consent to Search form which was altered to provide for a search of Jacobs' blood and the Consent for Drawing Legal Blood Alcohol Levels or Controlled Substances hospital form. The first form stated that Jacobs could refuse to consent to the search. The second form stated that the patient whose name "appears below. . . has been arrested for drunk driving." Jacobs testified that he did not read either form. Shortly after Jacobs signed the forms, and about three hours after the accident, Jacobs' blood was drawn. As we already noted, the results showed the presence of alcohol and a cocaine metabolite in Jacobs' bloodstream.
¶ 12. The case then went to trial. The State called the victim's mother, who was not present at the scene of the accident, as one of its witnesses. She testified about the victim's childhood, employment, and history of helping out on the family farm. She told the jury that he was an extremely hard worker and did the morning chores on the family farm before leaving to go to work and what was left of the chores when he got home. She also testified about his long-term relationship with his wife, his high school sweetheart, whom he had married just a month before his death. Then, she testified that since his death, the family had been forced to close down one of its barns.
¶ 13. In closing argument, the State highlighted some of the mother's testimony:
Tim [] is dead.... Ken and Shirley [] lost a beloved son. Jeannie lost a beloved husband. Ken lost a partner*153 on his farm, lost a man who likely would have continued their legacy on the family farm.
Obviously, Tim lost everything. He was a man just in the blooming part of his life, had just gotten married. He knew what he was going to do with his life. He wanted to have children. He is never going to have a chance to be a father, a grandfather, never going to get a chance to see his kids graduate from high school, never going to get a chance to tuck them in, to continue the family farm. All those opportunities are blown ....
Jacobs' attorney never objected to the mother's testimony nor to the portion of the State's closing argument referencing it.
¶ 14. Other than the victim's mother's testimony, the jury, of course, heard the evidence from the blood draw. An expert testified that although Jacobs had a blood alcohol level just under the legal limit three hours after the accident, it would have been over the limit at the time of the accident. The jury also heard eyewitness testimony that Jacobs did not slow down before entering the intersection against the stop sign. That same witness also testified that once she arrived at the aftermath of the accident, she asked Jacobs whether he had seen the stop sign and Jacobs stated that he had not. In addition, a supervisor from the Washington county crash reconstruction unit opined that based on his investigation, Jacobs' car would have been traveling at approximately forty-five miles per hour when it collided with the victim's car.
¶ 15. Jacobs' primary defense at trial, according to his brief, was that the death would have occurred even if Jacobs had been exercising due care and had not had alcohol or the cocaine metabolite in his bloodstream. In support of that defense, he highlighted the fact that Jacobs passed the majority of his field sobriety
¶ 16. Jacobs filed a postconviction motion alleging that his trial counsel was ineffective for failing to object to the victim's mother's testimony. The trial court denied the motion without conducting a Machner
DISCUSSION
Motion to suppress
¶ 17. We will first discuss the motion to suppress, which we consider to be the less problematic of the two issues. The standard of review for Jacobs' motion to suppress is twofold. First, we examine the trial court's findings of historical fact under the clearly erroneous standard and then review de novo the application of
¶ 18. "[A] search authorized by consent is wholly valid unless that consent is given while an individual is illegally seized." State v. Hartwig, 2007 WI App 160, ¶ 11, 302 Wis. 2d 678, 735 N.W.2d 597 (citation omitted). A person has been seized within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. State v. Williams, 2002 WI 94, ¶ 4, 255 Wis. 2d 1, 646 N.W.2d 834. Consent given when an individual is not illegally seized must still be voluntary, or a "free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied." Hartwig, 302 Wis. 2d 678, ¶ 7 (citation omitted). When determining voluntariness, a court considers " 'the circumstances surrounding the consent and the characteristics of the defendant,' and determines whether the State has proven by clear and convincing evidence that the consent was voluntary." Vorburger, 255 Wis. 2d 537, ¶ 89 (citation omitted).
¶ 19. All of Jacobs' arguments depend on his version of what happened at the hospital being accepted by
¶ 20. In order to be "inherently or patently incredible," evidence must be "in conflict with nature or fully established or conceded facts." Day, 92 Wis. 2d at 400 (citations omitted). The trial court pointed to one plausible scenario — that Jacobs ultimately changed his mind and agreed to a blood test against his attorney's advice because he wanted to be cooperative and help with the investigation. Because the trial court's answer to Jacobs' argument is not contrary to fully established or conceded facts or in conflict with nature, we reject Jacobs' involuntary consent claim.
¶ 21. Now, having dispatched Jacobs' nonconsent claim, we next decide Jacobs' argument that he was illegally seized when he was driven to the hospital in a
¶ 22. Jacobs next contends that he was effectively-placed in custody or seized while at the hospital. More specifically, Jacobs argues that his removal from the lobby to an examination room, combined with the continual presence of officers in that room, implied that he was in custody and that he was not free to leave. But those allegations are contradicted by testimony from the deputy present in the examination room that, on more than one occasion, Jacobs was reminded that he was not under arrest and did not have to ask permission to go about his business.
¶ 23. We now move to what we consider to be the more troubling issue — Jacobs' ineffective assistance of counsel claim. Criminal defendants have a Sixth Amendment right to effective assistance of counsel. In order to obtain relief based on ineffective assistance of counsel, the defendant must demonstrate that trial counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance requires a defendant to show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Prejudice is shown by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id.
¶ 24. In this case, as we have already related, Jacobs' motion for postconviction relief based on ineffective assistance of counsel was denied without a
¶ 25. As we already stated, counsel's alleged deficiency in this case was his failure to object to the mother's extensive background testimony which referenced the victim's character. The trial court found that there was no deficient performance because it did not "think that many . . . criminal defense attorneys would have objected to that line of testimony." It reasoned that
[cjutting off the mother of the decedent in a case of this type, seeking to prevent her from providing biographical information, may well come back to haunt a defendant from the standpoint of his remorse in the eyes of the jury as much or more than the defendant argues that the testimony did.
The trial court went on to state that "had [Jacobs' attorney] objected, this [c]ourt would have allowed the testimony."
¶ 27. Jacobs' appellate counsel seems to agree, at least in part, with the position taken by the prosecution at the trial stage regarding this issue. In response to the postconviction motion, the prosecution argued that much of the mother's testimony would have been admissible under Wis. Stat. § 908.045(5m), which is a hearsay exception that applies to certain "statement[s] of personal or family history" of unavailable witnesses.
¶ 29. We fully understand that "[objections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder." See State v. Campbell, 630 N.E. 2d 339, 352 (Ohio 1994) (citation omitted). But possible jury reaction to an objection does not justify the failure to object in every instance. If it were otherwise, a failure to object would never be error. That cannot be the law.
¶ 30. Yes, when a defense attorney is surprised by a question and answer which is objectionable, and the jury has already heard the offending testimony, counsel must weigh the worth of the objection. But here, the State mentioned before trial that the mother was "going to testify briefly for identification purposes and provide some information about the victim in this case." (Emphasis added.) Thus, counsel should at least have been on the alert that potentially irrelevant and prejudicial information might be presented to the jury. There was opportunity to object and ask for a voir dire while the
¶ 31. But we do not have to decide whether the failure to object was excusable because of trial strategy. This is because Jacobs must provide some basis to show how the ineffective assistance prejudiced him before he is entitled to a Machner hearing. See Balliette, 336 Wis. 2d 358, ¶ 18; Strickland, 466 U.S. at 687. In this case, the relevant, admissible evidence against Jacobs was overwhelming, more than enough to convince us that no jury would have been swayed by the mother's irrelevant testimony about her son's good character. Uncontroverted testimony showed that Jacobs ran a stop sign without stopping or slowing down and with alcohol and a cocaine metabolite in his bloodstream. Jacobs' argument that counsel's deficient performance was prejudicial boils down to this: because he presented a plausible affirmative defense that was rejected by the jury, the mother's testimony may have prejudicially swayed the jurors against him.
¶ 32. The problem with Jacobs' argument is that his affirmative defense at trial, based on Wis. Stat. § 940.09(2)(a), was not plausible. Section 940.09(2)(a) requires a defendant to "prove[] by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant [or] did not have a detectable amount of a restricted controlled substance in his or her blood." In other words, Jacobs needed to prove that the accident would have occurred regardless of whether he exercised due care or was intoxicated. Jacobs argues that he could have met
¶ 33. Jacobs' argument that he was not impaired and did exercise due care misses the mark. He simply did not exercise due care. He blew the stop sign. We agree with the State that "a person exercising due care does not run through a clearly visible stop sign." But for running the stop sign, the accident would never have occurred. Jacobs tries to turn the statutory affirmative defense on its head by evidence that the victim was speeding and, but for the speeding, the accident would not have happened. But regardless of this evidence, he cannot get around the fact that his running of the stop sign was a substantial factor in causing the collision, even if the victim's speeding was also a factor. There is no reasonable probability that, even if trial counsel had objected and even if the mother did not testify to her son's character, it would have made any difference.
By the Court. — Judgment and order affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Parts of the record refer to Jacobs' girlfriend, but Jacobs' brief refers to his fiancée. The distinction has no bearing on our analysis, so we refer to her as Jacobs does.
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
The trial court did not explicitly find Jacobs' testimony to be incredible, but rather hypothesized that his version of what happened could have been based on a "misunderstanding of something said" by police or "an explanation used by the [defendant to defend his decision to submit to the draw."
Both the State and Jacobs assume that, but for the finding that Jacobs consented to ride to the hospital in the police car of his own volition, the seizure would have been illegal. See State v. Hartwig, 2007 WI App 160, ¶¶ 11-13, 302 Wis. 2d 678, 735 N.W.2d 597 (a search authorized by consent is valid unless given while an individual is illegally seized). We have our doubts. In our view, the police had probable cause to at least arrest Jacobs for homicide by negligent operation of a vehicle based on his involvement in a fatal accident just after running a stop sign at highway speeds. See Wis. Stat. § 940.10. Although the police clearly did not believe they had probable cause to arrest Jacobs when they took him to the hospital, we have previously held that the legality of an arrest does not depend on whether the arresting officer articulates the correct legal basis for the arrest. State v. Repenshek, 2004 WI App 229, ¶ 10, 277 Wis. 2d 780, 691 N.W.2d 369. If Jacobs' alleged seizure and/or arrest was legal, then "custody is one factor to be considered in determining voluntariness," but "it is not in itself dispositive." See Hartwig, 30 Wis. 2d 678, ¶ 13 (citation omitted). Nonetheless, we will address the issues as they were framed by the parties —assuming that if Jacobs was seized, he was seized illegally, and the resulting consent to take the test would be invalid.
Yet again, these allegations are contradicted to some degree by Jacobs' own testimony. As we noted in the body of this opinion, Jacobs testified that the deputy went to check in with the D.R.E. officer who was out of the room talking on the phone. There is no indication in the record that other officers or hospital staff were present. So, presumably, there would have been at least a short window of time when no one was blocking the exit to the examination room. Such a circumstance hardly presents a seizure scenario.
Jacobs likens his case to State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639, and Florida v. Royer, 460 U.S. 491 (1983), both of which involved illegal seizures. He points to specific facts in those cases that he insists show similarity to this case — the police retaining the defendant's identification after he passed field sobriety tests in Luebeck, and the police moving the defendant to a private room and retaining his driver's license in Royer. See Luebeck, 292 Wis. 2d 748,
Neither party argues that the trial court's discretion was not properly exercised in this case, instead focusing on whether Jacobs can show deficient performance and prejudice.
Because Jacobs' appellate counsel, counsel representing the State at the postconviction motion, and the trial court all seem to have accepted this hearsay exception as an avenue