author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John Tomlinson, Jr., Defendant-Appellant.

    Court of Appeals

      No. 00-3134-CR.

      Submitted on briefs July 3, 2001. —
    Decided August 14, 2001.

    2001 WI App 212
    (Also reported in 635 N.W.2d 201.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Grau Law Office by John J. Grau, Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review granted 11-27-01.

   WEDEMEYER, PJ.

¶ 1. John Tomlinson, Jr. appeals from a judgment entered after a jury found him guilty of first-degree re ckless homicide, contrary to Wis. Stat. §§ 940.02(1), 939.05 and 939.63 (1999-2000). He also appeals from an order denying his postconviction motions. He raises three issues: (1) whether the trial court erred when it denied Tomlinson's motion seeking to suppress evidence; (2) whether the trial court erred when it allowed the State to introduce Otis Coleman's preliminary hearing testimony after Coleman asserted the Fifth Amendment during the trial; and (3) whether the trial court erred in instructing the jury that a baseball bat constitutes a dangerous weapon. Because the trial court's ruling on the suppression motion was not erroneous, because Coleman's preliminary hearing testimony was not erroneously admitted, and because the instructional error did not prejudice Tomlinson, we affirm.

I. BACKGROUND

¶ 2. At approximately midnight on February 5, 1999, Otis Coleman and Lewis Phillips were walking near the 1100 block of West Chambers Street in the City of Milwaukee. Tomlinson, his wife, and a third individual approached the pair and Phillips asked Mrs. Tomlinson for a cigarette. He offered to pay a quarter. Mrs. Tomlinson stated that she would sell one for fifty cents. Phillips responded, "a quarter, bitch." At that point, Tomlinson confronted Phillips for calling his wife a bitch. Tomlinson then told Phillips, "[y]ou better be here when I get back," and walked away. A couple of minutes later, Tomlinson returned wielding a baseball bat. Tomlinson swung the bat and hit Phillips in the left knee, causing him to bend forward. Tomlinson then swung the bat and struck Phillips in the left side of the head, causing him to fall to the ground. Coleman, fearing that the bat would be turned on him, left the area.

¶ 3. Angela Green was walking westbound in the 1100 block of West Chambers Street in the early morning hours of February 6,1999, when she heard a woman yell, "kick the bitch in the head." She recognized this woman as Mrs. Tomlinson. Shortly thereafter, she saw Mr. Tomlinson walking toward her carrying a baseball bat. His two teenage daughters, who were carrying broom and mop handles, were with him. After Green passed the Tomlinson family, she came upon Phillips who was bleeding from the head. Green pointed out the victim to Robert Haynes, who lived close to that area. Haynes went into his home and called 9-1-1.

¶ 4. Paramedics and police arrived at the scene and Phillips was transported to Froedert Memorial Hospital, where he died several days later from cerebral injuries due to blunt force trauma. The medical examiner indicated that Phillips's skull was fractured, consistent with a forceful blow to the head with a baseball bat.

¶ 5. On the evening of February 27, 1999, Milwaukee Police Detective Dennis Kuchenreuther and several of his colleagues were investigating the Phillips homicide. They spoke with Green, who provided a description of the Tomlinsons and the events she had witnessed. Green identified John Tomlinson from a photo array, and informed the detective that Tomlin-son, his wife, and two teenage daughters lived at 2948 North 11th Street. Kuchenreuther and several other officers proceeded to the Tomlinson residence. Kuchen-reuther knocked on the back door and identified himself as a police detective. He asked if they could come in to look for John Tomlinson. A black female aged fifteen or sixteen opened the door and allowed the officers to enter. John Tomlinson was standing behind the teenage girl, and did not object when the officers entered.

¶ 6. The police officers arrested Tomlinson, his wife Michelle, and the two daughters, Monterio and Kamisha, for the homicide of Phillips. After being placed under arrest, Michelle and the two daughters asked if they could put on their socks and shoes, which were located in a bedroom. The officers allowed them to do so but, for safety reasons, followed them into the bedroom. When the police entered the bedroom, they saw, in plain view, a baseball bat and some broom or mop handles. Recognizing these items as the possible murder weapons, the police seized them as evidence.

¶ 7. Tomlinson was charged with first-degree reckless homicide, while using a dangerous weapon, as party to the crime. He pled not guilty and filed a motion seeking to suppress the evidence seized at the time of his arrest. The trial court conducted the suppression hearing, and Detective Kuchenreuther was the only witness to testify. The trial court found that the entry was consensual.

¶ 8. The case was tried to a jury in June 1999. During the trial, Coleman was called by the State. Outside the presence of the jury, Coleman refused to answer the questions posed, invoking the Fifth Amendment. Based on this refusal, the State moved to admit Coleman's testimony from the preliminary hearing. Over defense objection, the trial court ruled that Coleman was unavailable, and that his prior testimony could be admitted pursuant to Wis. Stat. § 908.045(1). The trial court found that Coleman's reliability and credibility had been sufficiently challenged at the preliminary hearing to satisfy the confrontation rule. In addition, the trial court indicated that it would allow Tomlinson to introduce additional impeachment material, including Coleman's prior conviction record, prior statements, and a memorandum outlining the consideration Coleman received for cooperating in the investigation and testifying at the preliminary hearing.

¶ 9. After testimony was concluded, the trial court read the jury instructions. Specifically, the trial court advised the jurors:

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.

¶ 10. After instructions were complete, the State advised the court that the jury should be allowed to decide whether or not a baseball bat constituted a dangerous weapon, and the instruction given took that decision away from the jurors. In response to the State's concern, both defense counsel and Tomlinson indicated that they wanted to leave the instruction as it was read. The jury returned a guilty verdict.

¶ 11. Tomlinson filed postconviction motions, which were summarily denied. He now appeals.

II. DISCUSSION

A. Motion to Suppress.

¶ 12. The first issue is whether the entry into the Tomlinson home was consensual. The trial court, based on the testimony of Detective Kuchenreuther, found that the entry was consensual. We agree.

¶ 13. Our review of suppression rulings is mixed. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891, cert. denied, 121 S. Ct. 2207. We will uphold the trial court's findings of fact if they are not clearly erroneous; however, we will independently determine whether or not the search was unconstitutional. Id.

¶ 14. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The trial court found that the entry was consensual, based on the detective's testimony at the suppression hearing and inferences arising from the totality of the circumstances. That finding is not clearly erroneous. Detective Kuchenreuther testified at the suppression hearing that he knocked at the door, and when the teenage girl answered, he asked if he could come in. He indicated that the teenage girl opened the door and allowed him to enter. He also testified that Tomlinson was standing nearby and observing this, but he did not object to the detective's entry. We agree with the trial court that a reasonable inference arises from this testimony — that the individual who answered the door consented to the entry.

¶ 15. Tomlinson argues that this testimony could support the inference that the teenage girl merely turned to inform her parents that someone was at the door. Although we do not disagree that this is another rationally based view of the evidence, the trial court, after personally observing the testimony of Detective Kuchenreuther, found that the teenage girl expressly consented to the entry when she opened the door and allowed the officers to walk in behind her. The record supports the trial court's finding that the teenage girl's response to the detective's request to enter — opening the door, walking into the house, and allowing the officers to follow her into the house — was sufficient to convey her consent. Schneckloth, 412 U.S. at 222 (gestures or conduct may convey consent to search).

¶ 16. Tomlinson argues, however, that the child who opened the door did not have the authority to consent to the entry. We disagree. Tomlinson contends that nothing in the record shows that the minor child who answered the door had authority to consent to the entry by the officers. This court acknowledges that this specific issue was not fully and completely addressed, primarily because the "authority to consent" was not raised until the postconviction motion. Nevertheless, we conclude that there is sufficient information in the record to establish that the teenage girl had actual authority to consent to the entry.

¶ 17. The evidence in the record strongly supports the logical inference that the girl who answered the door was one of Tomlinson's daughters. His two daughters were fourteen and fifteen years old. The police had been given a description of the family by Green, and were advised by Green that Tomlinson lived with his wife and two teenage daughters. There was no other visitor or person mentioned. The third-party consent doctrine provides that a third-party may consent to enter a home when that third party has common authority over the premises to be searched. United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority has been referred to as the "mutual use of the property by persons generally having joint access or control for most purposes." Id. at 171 n.7. Here, it was not unreasonable for the police officers to believe that the teenage girl who answered the door was one of Tomlinson's daughters, and that she had mutual use of the property sufficient to consent to the entry.

¶ 18. Tomlinson suggests that the age of the teenage daughter prevents her from consenting to the entry of the parents' home; that a minor does not have "common authority" to consent to entry. We disagree. Although Wisconsin has not yet directly addressed the issue of a child's authority to consent to a search of his or her parents' home, we are persuaded by cases from other jurisdictions holding that a teenage child has actual common authority to consent to an entry, at least into the common areas of the shared home. Doyle v. State, 633 P.2d 306, 308-09 (Alaska Ct. App. 1981) (teenager could allow police to enter living room to talk with father); Harmon v. State, 641 S.W.2d 21, 23 (Ark. 1982) (sixteen-year old could admit police into home), overruled on other grounds by White v. State, 717 S.W.2d 784 (Ark. 1986); Mears v. State, 533 N.E.2d 140, 143 (Ind. 1989) (fourteen-year old could consent to entry); People v. Swansey, 379 N.E.2d 1279, 1281-82 (Ill. App. Ct. 1978) (thirteen-year old could consent to entry; State v. Folkens, 281 N.W.2d 1, 4 (Iowa 1979) (fourteen-year old could consent to entry); In re Anthony R, 442 A.2d 975, 978 (Md. 1982) (individual who appeared to be thirteen years old could consent to entry).

¶ 19. In determining whether a minor has actual authority to consent to the entry, two factors may guide the courts. The first factor is the age of the child because "as children grow older they . . . acquire discretion to admit. . . [persons] on their own authority." 3 Wayne R. LaFave, Search and Seizure, § 8.4(c), 773 (3d ed. 1996). In the instant case, although it is not clear whether the fourteen-year-old or fifteen-year-old daughter answered the door, either had the authority to consent to entry. Both girls are within the age where courts usually find that the child has acquired the discretion to admit persons on their own authority.

¶ 20. The second factor to consider is the scope of the consent and whether the entry was to a common area or a more private area of the family home. Id. Here, the consent was access into a common area of the home, the front entranceway and the kitchen, as opposed to the entire residence, or what could arguably be considered more private areas. In addition, the consent in this case was not solely that of a teenage girl. Detective Kuchenreuther testified that Tomlinson was nearby when the police entered and proceeded into the kitchen, and at no time did he object to the entry.

¶ 21. Based on the foregoing facts and circumstances, we conclude that the entry was constitutionally permissible; therefore, the trial court did not err in denying the motion to suppress.

B. Coleman's Testimony.

¶ 22. Tomlinson next argues that the trial court erroneously exercised its discretion when it allowed the State to read into evidence Coleman's testimony from the preliminary hearing because: (1) he was not afforded an adequate opportunity to confront Coleman at the preliminary hearing; and (2) Coleman was not "unavailable" so as to justify admission of the former testimony under Wis. Stat. § 908.045(1). We are not persuaded.

¶ 23. Whether or not former testimony should be admitted pursuant to Wis. Stat. § 908.045(1) is a discretionary ruling, subject to review under the erroneous exercise of discretion standard. State v. Drusch, 139 Wis. 2d 312, 317-18, 407 N.W.2d 328 (Ct. App. 1987). We will not disturb a discretionary ruling if the trial court applied the proper law to the pertinent facts and reached a reasonable decision. Id. Moreover, whether Tomlinson's confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution, and art. I, § 7 of the Wisconsin Constitution were violated is ultimately a legal issue reviewed independently. State v. Stutesman, 221 Wis. 2d 178, 182, 585 N.W.2d 181 (Ct. App. 1998).

¶ 24. In State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982), the Wisconsin Supreme Court set forth the standard for determining whether the type of evidence challenged here may be admitted. First, we must consider whether the evidence fits into a recognized hearsay exception. Id. at 215. Here, Coleman's preliminary hearing testimony fits under Wis. Stat. § 908.045(1), which allows former testimony to be introduced when the declarant is unavailable. This testimony was given by Coleman in another proceeding, with the opportunity to develop the testimony by both the State and Tomlinson. Thus, the first step of the Bauer standard is satisfied.

¶ 25. Second, the confrontation clause must be considered. Id. at 215. This requires that the witness be unavailable and that the evidence "bear some indicia of reliability." Id. "If the evidence fits within a firmly rooted hearsay exception, reliability can be inferred and the evidence is generally admissible," unless "there are unusual circumstances which may warrant exclusion of the evidence." Id. The hearsay-rule exception for prior testimony recognized by Wis. Stat. § 908.045(1) is "firmly rooted." Id. at 216.

¶ 26. When Coleman was called to testify at the trial, the following exchange occurred:

Q Mr. Coleman, are you willing to answer questions regarding your knowledge of the homicide of Lewis Phillips, also know as Little?
A 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 that I'm mentally stable enough at the present time to answer any questions about anything.
[The court then instructs Coleman to answer the question.]
Q Are you willing to answer any questions at all regarding your knowledge of the homicide —
A No.
Q — of February 5 of 1999 to February —
A I must invoke the Fifth.
Q Let me ask the question. From February 5 of 1999 to February 6th of 1999 at or about 1134 West Chambers Street, here in the City and County of Milwaukee, State of Wisconsin, the topic on which you testified at the preliminary hearing in this case?
A I must invoke my Fifth Amendment rights.
Q What do you mean you're invoking your Fifth Amendment rights?
A I do not wish to say anything that might tend to incriminate me or to get me harmed in any way, shape or fashion.
Q Or get you what?
A Or harmed by you, the Court, anybody.
Q Is it my understanding you're to invoke your Fifth Amendment privilege regarding any questions asked of you about the topic I just brought up?
A About anything. I invoke my Fifth Amendment rights about anything you have to ask me.

¶ 27. The prosecutor then asked the trial court to order Coleman to answer the questions. The trial court stated that it was going to order Coleman to answer. Coleman then interrupted asking, "[c]an I invoke my Fifth Amendment?" The trial court responded that it was going to order Coleman to answer the questions. The questioning continued:

Q Are you fearful of retaliation for being known as a snitch if you cooperate in this case?
A I invoke my Fifth Amendment rights.
THE COURT: .. . the Court's ordering you to answer that question.
THE WITNESS: I don't understand.
THE COURT: The Court orders you to answer the question.

¶ 28. Coleman then answered the question "in part." When the prosecutor asked him the next question, he again invoked his Fifth Amendment privilege, the trial court ordered him to answer, and Coleman indicated that he could not talk about the incident. When Tomlinson's counsel cross-examined Coleman, he again invoked the Fifth and refused to answer.

¶ 29. Tomlinson contends that the trial court should have persisted further with the witness, found him in contempt, and ordered him to answer each question. Although we do not disagree that such a course would have created a more complete record, the foregoing clearly demonstrates that Coleman persistently refused to answer the questions, and there was no offer of proof that further inquiry would have made a difference to Coleman. Accordingly, under the standard set forth above, the trial court was correct when it found Coleman to be "unavailable."

¶ 30. The next part of the test is whether the evidence demonstrates indicia of reliability. As noted, Wis. Stat. § 908.045(1) is a "firmly rooted" hearsay exception, so the reliability of the preliminary hearing testimony "can be inferred." Bauer, 109 Wis. 2d at 216. Under the Bauer analysis, the only remaining question is whether there are any "unusual circumstances" for excluding the preliminary hearing examination. Id.

¶ 31. Tomlinson contends that the case does present unusual circumstances, arguing that because preliminary examinations focus on probable cause, they do not provide an adequate opportunity to develop sufficient cross-examination. Having reviewed the preliminary examination transcript in the instant case, we cannot agree with Tomlinson's contention. Tomlinson's counsel clearly challenged the reliability and credibility of Coleman during the cross-examination at the preliminary hearing. Tomlinson's counsel questioned Coleman about the accuracy of his recollections, secured an admission that Coleman had been consuming alcohol, and questioned why Coleman abandoned Phillips while he was in obvious danger. It is well established that the Confrontation Clause is satisfied by the opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 18 (1985). Tomlinson was provided with the opportunity to cross-examine Coleman at the preliminary hearing. Except in extraordinary cases, no inquiry into the effectiveness of the cross-examination is required. Ohio v. Roberts, 448 U.S. 56, 73 n.12 (1980).

¶ 32. In addition, the State stipulated to, and the trial court ordered, the admission of additional impeachment evidence to challenge Coleman's credibility, including his ten prior convictions, prior statements, and documentation revealing the consideration Coleman received for cooperating in the investigation and testifying at the preliminary hearing. Finally, Tomlin-son failed to-identify any evidence or cross-examination materials he was not allowed to offer to impeach Coleman's credibility.

¶ 33. For all these reasons, we conclude that the admission of Coleman's preliminary hearing testimony did not constitute an erroneous exercise of discretion and did not violate any constitutional confrontation rights.

C. Jury Instruction.

¶ 34. Tomlinson's last issue relates to the jury instruction, wherein the trial court advised the jury: "Dangerous weapon means a baseball bat." He argues that this constituted "plain error" and requires reversal. We disagree.

¶ 35. At the time the instruction was given, the prosecutor immediately intervened and, outside the presence of the jury, advised the court: "It should be up to the jury to determine if a baseball bat is a dangerous weapon." However, defense counsel stated: "We want it the way it was read." The trial court then questioned both defense counsel and Tomlinson to confirm that, indeed, they wanted the jury instructed that a baseball bat was a dangerous weapon. Tomlinson personally answered affirmatively.

¶ 36. Now, on appeal, Tomlinson asserts that the instruction constitutes plain error, despite his position at trial indicating he wanted the instruction read. Tomlin-son has waived this argument. Tomlinson and his counsel made a knowing election between alternative courses of action, resulting in a strategic waiver of this instructional error. He cannot create his own error by deliberate choice of strategy and then ask to receive the benefit from that error on appeal. Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992).

¶ 37. Tomlinson argues that his single affirmative response, "yeah," to the trial court in response to whether he wanted the jury to be told that a baseball bat is a dangerous weapon was insufficient. We disagree. Although a more in depth colloquy is required when a defendant waives his or her right to a jury trial, the same is not required when a defendant "merely concede[s to] an element of the charged crime." State v. Benoit, 229 Wis. 2d 630, 600 N.W.2d 193 (Ct. App. 1999). Here, Tomlinson's affirmative response was not a waiver of his right to a jury trial on that element, but a concession to an element of the charged crime. The jury was instructed on all of the elements of the crime, and Tomlinson received a jury trial on every element. Accordingly, we conclude that Tomlinson's single affirmative response under the facts and circumstances here was sufficient to waive this issue.

¶ 38. In a related argument, Tomlinson argues that his trial counsel was ineffective for failing to object to the trial court's instruction that a baseball bat is a dangerous weapon. We cannot agree.

¶ 39. In order to establish that he did not receive effective assistance of counsel, Tomlinson must prove two things: (1) that his lawyer's performance was deficient; and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996). A lawyer's performance is not deficient unless he "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Even if Tomlinson can show that his counsel's performance was deficient, he is not entitled to relief unless he can also prove prejudice; that is, he must demonstrate that his counsel's errors "were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Id. Stated another way, to satisfy the prejudice-prong:" 'A defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Sanchez, 201 Wis. 2d at 236 (citation omitted).

¶ 40. In assessing Tomlinson's claim, we need not address both the deficient performance and prejudice components if he cannot make a sufficient showing on one. Strickland, 466 U.S. at 697. The issues of performance and prejudice present mixed questions of fact and law. Sanchez, 201 Wis. 2d at 236. Findings of historical fact will not be upset unless they are clearly erroneous, id., and the questions of whether counsel's performance was deficient or prejudicial are legal issues we review independently, id. at 236-37.

¶ 41. Looking at the facts of this case, we cannot conclude that trial counsel's performance was deficient or prejudicial. Tomlinson took the baseball bat and struck Phillips so hard in the knee that Phillips doubled over. Then Tomlinson swung the bat again and struck Phillips in the head, fracturing his skull, causing him to fall to the ground, and eventually killing him. There is no reasonable probability that the jurors would not have found the baseball bat in this case to be a dangerous weapon.

¶ 42. Further, even if trial counsel objected to the instruction, the result of the proceeding would not have been different. Under these facts, the jury would have found that the baseball bat constituted a dangerous weapon. Accordingly, we reject Tomlinson's claim that his trial counsel provided ineffective assistance.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 908.045(1) provides that if the declarant is unavailable, former testimony may be admitted. The pertinent portion states:
      Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.

       As in all Fourth Amendment search cases involving consent, the state has the burden of proving that the search was the result of "free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied." State v. Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Ct. App. 1993) (citation omitted). "[T]he proper test for voluntariness of consent under the fourth amendment is whether under the totality of the circumstances it was coerced." Id. Coercion or duress was never asserted in the instant case and, therefore, we need not address it.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Patricia H. Roth, Petitioner-Respondent, v. LaFarge School District Board of Canvassers, Respondent-Respondent, Gail J. Muller, Third Party-Petitioner-Appellant.
    Court of Appeals

      No. 01-0160.

      Submitted on briefs July 9, 2001. —
    Decided August 16, 2001.

    2001 WI App 221
    (Also reported in 634 N.W.2d 882.)

      On behalf of the third-party-petitioner-appellant, the cause was submitted on the briefs of George C. Wilbur, LaFarge.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Christopher J. Blythe of Bauer Law Office, Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of David L. Jenkins of Jenkins and Stittleburg, Viroqua.
    Before Dykman, Deininger and Lundsten, JJ.
   DYKMAN, J.

¶ 1. This is an appeal from an order limiting the issues that intervenor Gail J. Muller could raise in an election dispute brought by Patricia H. Roth, and from an order and a judgment declaring that a referendum had succeeded. Three issues are in dispute: (1) whether the trial court properly concluded that Muller could not assert her own claim because her motion to intervene came after the statutory deadline for appealing the board of canvassers' decision; (2) whether a ballot initialed by only one inspector was legally excluded by the board; and (3) whether another ballot that Took[ed] erased" was also properly disqualified from the recount.

¶ 2. We conclude that the trial court erred in refusing to allow Muller to assert her own claim. The deadline for filing a notice of appeal under Wis. Stat. § 9.01(b)(6) (1999-2000) applies only to parties who are "aggrieved" by the recount. Muller opposed passage of the referendum and the result of the recount indicated that the referendum had failed. Therefore, Muller was not "aggrieved" and had no standing to bring her own appeal. Because the statutory deadline did not apply to Muller and because she satisfied each of the requirements to intervene as a matter of right, Muller should have been allowed to assert her own claim.

¶ 3. We also conclude that the trial court was correct in deciding that the ballot bearing the initials of only one inspector should have been included in the recount. The trial court did not rule on whether the "erased" ballot was properly excluded because this was the claim that Muller was prevented from asserting. Because that ballot is not part of the record, we cannot determine whether it should have been counted. We therefore remand to the trial court for a determination whether the board's conclusion that the intent of the voter could not be ascertained on that ballot is supported by substantial evidence.

I. Background

¶ 4. The La Farge School District held a referendum on November 7, 2000, requesting approval from the voters for maintenance and remodeling work of the local school buildings. The election night returns reported that electors cast 392 votes in favor of the referendum and 392 votes against it. Under Wis. Stat. § 5.01(4)(d), a tie vote results in the referendum being defeated.

¶ 5. Roth, a resident and qualified voter in the La Farge School District, petitioned the La Farge School District Board of Canvassers for a recount under Wis. Stat. § 9.01, and the board held a recount on November 11. During the recount the board disqualified three "yes" votes as well as three "no" votes, resulting again in a tie.

¶ 6. On the following Friday, Roth filed a notice of appeal; she then filed a complaint in the Vernon County Circuit Court on November 24. She argued that one of the disqualified "yes" votes, which the board had disqualified because only one inspector (rather than two) had initialed it, should have been counted according to the statutes on recount procedure. The trial court ordered the board to respond by December 8, and scheduled a hearing for December 18.

¶ 7. Muller filed a motion to intervene on December 6. She claimed that, as a resident and qualified voter of the district, she had an interest in the outcome of the referendum, that her ability to protect that interest would be harmed if she could not intervene, and that the existing parties did not adequately represent her interest. In her complaint, Muller sought to argue both that the "yes" vote at issue was properly disqualified and also that one of the three disqualified "no" votes should have been counted.

¶ 8. The trial court granted Muller's motion to intervene, but only for the purpose of opposing Roth's complaint; Muller was not allowed to challenge the board's decision to exclude the "no" vote. After a hearing, the trial court concluded that the board had misinterpreted Wis. Stat. § 9.01 when it disqualified a "yes" vote for having' only 'one inspector's initials on it. Accordingly, the trial court ordered the board to include the ballot in the total so that the revised returns would reflect that the referendum passed by one vote. Muller appeals.

II. Analysis

A. Motion to Intervene

¶ 9. The parties do not dispute that the trial court was correct in allowing Muller to intervene for the purpose of challenging the inclusion of the "yes" vote. They do dispute, however, whether Muller should have been allowed to intervene in order to argue that the "no" vote had been improperly excluded. While both Roth and the board agree that the trial court correctly ruled that Muller could not raise "new issues," Muller asserts that the court erred because she was entitled to intervene on both issues as a matter of right.

¶ 10. Whether Muller is permitted to intervene as a matter of right is an issue of law that we review de novo. See Wolff v. Town of Jamestown, 229 Wis. 2d 738, 743, 601 N.W.2d 301 (Ct. App. 1999). The supreme court recently set forth the requirements for intervention as a matter of right under Wis. Stat. § 803.09(1): (1) the motion to intervene must be timely; (2) the movant must claim an interest in the subject of the action; (3) the outcome may, as a practical matter, impair or impede the movant's ability to protect that interest; and (4) the existing parties do not adequately represent the movant's interest. City of Madison v. ERC, 2000 Wl 39, ¶ 11, 234 Wis. 2d 550, 610 N.W.2d 94.

¶ 11. Roth and the board do not seriously dispute that Muller has satisfied requirements (2), (3), and (4). As an elector in the referendum, Muller has an interest in the outcome of the suit that is recognized by Wis. Stat. § 9.01(6), and, obviously, Muller's ability to protect that interest will be impeded if she cannot intervene because she will otherwise have no opportunity to assert her claims. See Wis. Stat. § 9.01(11); State ex rel. Shroble v. Pruesner, 185 Wis. 2d 102, 110-12, 517 N.W.2d 169 (1994) (holding that § 9.01 is the exclusive remedy for challenging mistakes made during the canvassing process). Also, neither Roth nor the board can adequately represent Muller's interest. Of the three parties, only Muller wishes to assert that one of the "no" votes was improperly disqualified. Even with regard to the excluded "yes" vote at issue, both the board and Roth now agree it should have been counted, leaving only Muller to dispute this.

¶ 12. It is the requirement of timeliness that Roth and the board claim Muller has not satisfied. They point to Wis. Stat. § 9.01(6), which requires appeals of the recount be made to the circuit court "within 5 business days after completion of the recount determination." Because the recount was completed on November 11, 2000, and Muller did not file her motion to intervene until December 6, 2000, Roth and the board assert that Muller's motion was untimely.

¶ 13. We disagree that Muller's failure to file her own appeal with the circuit court within five business days of the recount precluded her from intervening later. First, the supreme court has rejected the view that intervenors are necessarily subject to the same deadlines as the original parties. City of Madison, 2000 WI 39 at ¶ 10 (holding that failure to intervene within the statutory time period to appeal does not make motion untimely). More important, Muller cannot be barred by the statutory deadline because the statute did not apply to her. Wisconsin Stat. § 9.01(6) (emphasis added) requires only that "any elector ... aggrieved by the recount" appeal to the circuit court within five business days. We generally understand a person to be "aggrieved" when he or she is directly injured. Auer Park Corp., Inc., v. Derynda, 230 Wis. 2d 317, 320, 601 N.W.2d 841 (Ct. App. 1999); Weina v. Atlantic Mut. Ins. Co., 177 Wis. 2d 341, 345, 501 N.W.2d 465 (Ct. App. 1993).

¶ 14. In this case, Muller was not directly injured by the recount because the result was in her favor. The recount ended in another tie, which under Wis. Stat. § 5.01(4)(d) means that the referendum failed. An individual cannot claim to be aggrieved when his or her position is successful. Cf. State Public Intervenor v. DNR, 184 Wis. 2d 407, 420, 515 N.W.2d 897 (1994) (holding that public intervenor was not aggrieved by judgment when he was the prevailing party). Because Muller was not aggrieved by the recount, she would have had no standing under Wis. Stat. § 9.01 to challenge the result. Had Muller attempted to bring her own appeal, the statute would have required the trial court to dismiss her complaint.

¶ 15. Having determined that Muller was not aggrieved, we cannot conclude that her motion to intervene is untimely as a result of her failure to appeal the board of canvasser's decision within five days. If we were to do so, individuals such as Muller would be denied any opportunity to obtain relief. They would both lack standing to initially challenge the recount and be denied an opportunity to later intervene.

¶ 16. We are therefore left with a situation in which the legislature has provided a statutory deadline for those aggrieved by the recount to appeal but not for those who were satisfied with the result but want to later intervene. The absence of a specific deadline is not a problem, however, because trial courts may use the timeliness requirement of Wis. Stat. § 803.09 to prevent individuals from bringing tardy motions to intervene. See Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 471, 516 N.W.2d 357 (1994) (holding that question of timeliness of motion to intervene is left to the discretion of the trial court). Although there is no "precise formula" for determining whether a motion to intervene is timely, the supreme court has stated that the "critical factor is whether in view of all the circumstances the proposed intervenor acted promptly." State ex rel. Bilder v. Township of Delevan, 112 Wis. 2d 539, 550, 334 N.W.2d 252 (1982). In the context of election disputes, in which the interest in a swift resolution is significantly heightened, the meaning of "prompt" would necessarily be more demanding than in other settings.

¶ 17. In deciding whether a motion to intervene was brought in a timely manner, courts in Wisconsin have looked at a number of factors, including: (1) when the proposed intervenor discovered his or her interest was at risk; (2) how far litigation has proceeded; and (3) the extent to which the other parties would be prejudiced by the addition of a new party. See, e.g., Armada, 183 Wis. 2d at 472 (1994) (motion was timely when filed prior to commencement of first hearing on mandamus action); C.L. v. Edson, 140 Wis. 2d 168, 178-80, 409 N.W.2d 417 (Ct. App. 1987) (motion was timely when filed as soon as movant learned its interest was implicated and when existing parties would not be prejudiced); State ex rel. Jones v. Gerhardstein, 135 Wis. 2d 161, 168-69, 400 N.W.2d 1 (Ct. App. 1986) (denial of motion as untimely not a misuse of discretion when action had already reached a "critical stage"), aff'd, 141 Wis. 2d 710, 416 N.W.2d 883 (1987); Bilder, 112 Wis. 2d at 550-51 (motion was timely when brought nine days after action was filed, trial court had not yet approved settlement between existing parties, and parties were not prejudiced).

¶ 18. Muller filed her motion to intervene and complaint on December 6, 2000, less than two weeks after Roth filed her complaint with the Vernon County Circuit Court. No proceedings on the merits had yet taken place. The board did not file its answer until December 8, 2000, and no hearing was scheduled until December 18, 2000. Finally, there is no indication in the record that Muller's claim would have unduly delayed the action or prejudiced the parties. Like Roth, Muller challenged the board's decision to exclude one vote. The additional time to decide Muller's claim would have been minimal.

¶ 19. The trial court did not consider any of these factors, but rather concluded that Wis. Stat. § 9.01(6) required Muller to file a notice of appeal within five business days after the recount. An erroneous exercise of discretion will result if our review of the record indicates that the trial court applied the wrong legal standard. Connor v. Connor, 2001 WI 49, ¶ 18, 243 Wis. 2d 279, 627 N.W.2d 182. Because the trial court applied the wrong legal standard and the facts of record do not support its decision, we conclude that the trial court exercised its discretion erroneously in deciding that Muller's motion to intervene was untimely.

¶ 20. Respondents also claim, however, that even if Muller's motion to intervene cannot be denied as untimely, the trial court still acted properly in limiting the issues that Muller could raise to those contained in Roth's complaint. Citing Washington Elec. Co-op., Inc. v. Massachusetts. Mun. Wholesale Elec., 922 F.2d 92 (2nd Cir. 1990), the board argues that a trial court has the authority to limit the issues an intervenor may raise to those in the initial pleadings. The board is correct that, because Wis. Stat. § 803.09 is based upon Fed. R. Civ. Pro. 24, we may look for guidance at case law and commentary regarding motions to intervene in federal court. Bilder, 112 Wis. 2d at 547. However, the holding in Washington Electric is not uniformly followed. There are just as many federal courts holding that intervenors may assert new claims as there are holding that they cannot. Compare Washington Elec., 922 F.2d at 97, with Alvarado v. J.C. Penney Co., Inc., 997 F.2d 803, 805 (10th Cir. 1993) ("[W]here the intervenor claims an interest adverse to both the plaintiff and defendant he or she is entitled to have the issues raised thereby tried and determined"); Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir 1985) (holding that intervenor becomes a "full participant in the law suit"); United States v. Exxon Corp., 773 F.2d 1240, 1306 (Temp. Emer. Ct. App. 1985) (holding that Rule 24(a)(2) [intervention as a matter of right] permits only "housekeeping" or efficiency limitations). Furthermore, although there is no Wisconsin case law addressing the right of intervenors to raise new issues, we have stated previously that "[w]hen a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party." Kohler Co. v. Sogen Int'l Fund, Inc., 2000 WI App 60, ¶ 12, 233 Wis. 2d 592, 608 N.W.2d 746. If treated as an original defendant, there is no question that Muller would be allowed to raise issues beyond those in Roth's complaint.

¶ 21. Furthermore, the reason for limiting an intervenor's claim is that unfairness would result from allowing an intervenor to assert a time consuming claim unrelated to the existing parties' pleadings. See, e.g., Northwest Airlines, Inc. v. International Ass'n of Machinists & Aerospace Workers, AFL-CIO, 323 F. Supp. 107 (D. Minn. 1970). These concerns are not implicated in the present situation. First, although Muller seeks to raise a new issue, her claim arises from the same election and the same referendum as Roth's claim. We therefore do not view her claim as being unrelated. Second, as we have already noted, Muller's claim would not have unduly delayed the proceedings.

¶ 22. We also note that concern for the existing parties cannot be the only interest considered in an action such as this one. The result of this referendum does not affect just the parties in this suit, but has implications for the entire community. Allowing Roth alone to control the scope of litigation could improperly skew the result of the election in one direction and subvert the will of the electorate. Because giving effect to the will of the electorate is the overarching policy behind the election statutes, see Wis. Stat. § 5.01, we do not believe the legislature would deny those individuals whose position prevailed on the recount from pursuing any avenue to sustain the recount results on judicial review. We therefore conclude that the trial court erred in barring Muller from challenging the exclusion of the "no" vote.

¶ 23. Roth insists that allowing Muller to intervene and challenge the excluded "no" vote in this case will "open the door to adding new parties and raising additional issues ad nauseam." We disagree.

¶ 24. First, in elections for office, Wis. Stat. § 9.01(b)(6) recognizes only the right of candidates in challenging the recount, and each candidate is automatically made a party to the circuit court appeal. The only person entitled to raise new issues not asserted in the initial pleadings would be the candidate who was not "aggrieved" by the recount, i.e., the candidate who won the election according to the recount results. Second, even in referendums, where "any elector" has the right to challenge a recount, the number of parties who will have the right to intervene will generally be quite small. Only electors not aggrieved by the recount would be able to satisfy the timeliness requirement of Wis. Stat. § 803.09(1). That group is still further limited by the fourth requirement, namely, that existing parties cannot adequately represent the movant's interests. If there is already a party in the case making the same claim a proposed intervenor wishes to assert, the trial court would be justified in denying the motion to intervene unless the existing parties were not adequately representing the claim. Finally, we note that trial courts have discretion to deny a motion to intervene as untimely if the action has already reached a "critical stage." Jones, 135 Wis. 2d at 168.

¶ 25. In our view, allowing electors whose position prevailed on the recount to intervene in a timely manner will not open the floodgates for new parties and claims. Rather, a rule requiring candidates and electors who are satisfied with the result of the recount to appeal the board's decision just in case someone else might appeal the decision would only encourage unnec-cessary litigation.

B. Excluded Ballots

1. Standard of Review .

¶ 26. Wisconsin Stat. § 9.01(8) provides the standard of review for circuit courts reviewing the decision of the board. With regard to questions of law, § 9.01 provides that "[t]he court shall set aside or modify the determination if it finds that the board of canvassers ... has erroneously interpreted a provision of law and a correct interpretation compels a particular action." With regard to questions of fact, the statute provides that "the court may not substitute its judgment for that of the board of canvassers ... as to the weight of the evidence on any disputed finding of fact." § 9.01(8). In this case, because there are no disputed facts and the trial court based its decision on the conclusion that the board had erroneously interpreted Wis. Stat. § 9.01(l)(b)4, we review its decision de novo. See Matter of Hayden, 105 Wis. 2d 468, 484, 313 N.W.2d 869 (Ct. App. 1981).

2. Excluded "Yes" Vote

¶ 27. Wisconsin Stat. § 7.37(4) provides that "2 inspectors .. . shall write their initials on the back of each ballot." Only one inspector initialed the "yes" vote that is in dispute. In determining whether the ballot was therefore properly excluded, we must decide whether the provision is directory or mandatory. Whereas noncompliance with a mandatory provision renders a ballot void, failure to comply with a directory provision will not invalidate the vote so long as there is "substantial compliance" with the statute. See Lanser v. Koconis, 62 Wis. 2d 86, 90-91, 214 N.W.2d 425 (1974). "A statute which merely provides that certain things shall be done in a given manner and time without declaring that conformity to such provisions is essential to the validity of the election should be construed as directory." Hayden, 105 Wis. 2d at 483 (internal quotations omitted). We have "consistently sought to preserve the will of the electors by construing election provisions as directory if there has been substantial compliance with their terms." McNally v. Tollander, 100 Wis. 2d 490, 497, 302 N.W.2d 440 (1981).

¶ 28. There is nothing in Wis. Stat. § 7.37(4) suggesting that initials of two inspectors are "essential to the validity of the election." Furthermore, the supreme court has already decided that a ballot should be counted when it was initialed by only one clerk but a statute required that it be initialed by two. See Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W 183 (1941). In Ollmann, a clerk had signed both his and another clerk's initials on 305 ballots, even though a statute required that each clerk initial the ballots individually. Id. at 576-77. The court acknowledged that the statute "if literally applied would invalidate the 305 votes." Id. at 578. In holding that all 305 ballots must be counted, however, the court stated: "A ballot legally cast cannot be rejected if it expresses the will of the voter." Id.

¶ 29. Muller acknowledges Ollmann, but she argues that it is not controlling. Instead, she refers us to Wis. Stat. § 7.50(2), enacted after Ollmann, which states:

All ballots cast at an election which bear the initials of 2 inspectors shall be counted for the person or referendum question for whom or for which they were intended, so far as the electors' intent can be ascertained from the ballots notwithstanding informality or failure to fully comply with other provisions of chs. 5 to 12.

Muller asserts that this provision is mandatory, and that because the "yes" vote in dispute contained the initials of one rather than two inspectors, he board was correct in deciding not to count it.

¶ 30. Although Muller concedes that Wisconsin courts have been reluctant to exclude votes from being counted when the intent of the voter is clear and the defect of a ballot is only technical, she contends that this is true only where the voter was not at fault. In this case, pointing to Wis. Stat. §§ 6.80(2)(d) and 5.54 (also enacted after Ollmann), Muller argues that the voter was at fault because the election statutes and the ballot itself gave notice to the voter that his or her ballot might not be counted if it did not contain two signatures.

¶ 31. We disagree that Wis. Stat. § 7.50(2) mandates the board to exclude votes that contain the initial of only one inspector. The statute does not require that the board "shall not" count ballots with the initials of only one inspector. Moreover, when § 7.50(2) is read in conjunction with Wis. Stat. §§ 7.51(2)(c) and 9.01(l)(b)4, it becomes clear that the board misinterpreted these provisions when it excluded the vote for having the initials of only one inspector. See Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996) (holding that statutes relating to the same subject matter should be construed together and harmonized).

¶ 32. Wisconsin Stat. § 7.51(2) describes the procedure that the board must follow when tallying votes after the polls close on election night. Paragraph (c) provides that the board "shall mark, lay aside and preserve" ballots not bearing the initials of two inspectors. This provision only applies, however, if "the number of ballots exceeds the number of voting electors as indicated on the poll or registration list." Id. Similarly, Wis. Stat. § 9.01(l)(b)4 addresses the procedure for excluding votes during the recount. It provides that "[a]ny ballot not properly initialed by 2 inspectors . . . shall be temporarily set aside" if "the number of ballots still exceeds the number of voters" after defective absentee and blank ballots have been removed. Id. Even then, the board may only exclude the number of ballots "necessary to reduce the number of ballots to equal the number of voters." Id.

¶ 33. There is no indication in the record, nor do either of the respondents allege, that the number of ballots in this referendum exceeded the number of voters at any stage of the initial tallying or the recount. Therefore, under Wis. Stat. § 9.01(l)(b)4, the board improperly excluded the "yes" vote for failing to bear the initials of two inspectors. Wisconsin Stat. §§ 5.54, 6.80(2)(d), and 7.50(2) do not suggest otherwise. Sections 5.54 and 6.80(2)(d) properly warn voters that there are circumstances (not present here) under which their vote could be excluded if their ballots are not properly initialed, while § 7.50(2) simply guarantees voters who do use properly initialed ballots that their votes will be counted. Although Muller insists that strictly requiring the initials of two inspectors is essential to protect against fraud, the legislature appears to disagree. Sections 7.51(2)(c) and 9.01(l)(b)4 create a mechanism by which fraud will be assumed only when the number of ballots and electors are unequal. Because no fraud has been alleged in this case, there is no reason to invalidate the will of one elector because of a technical defect.

¶ 34. In sum, we conclude that Wis. Stat. § 7.37(4) should be interpreted as directory when the number of votes is equal to the number of electors. There was substantial compliance in this instance. We therefore agree with the trial court that this vote should not have been excluded.

3. Excluded "No" Vote

¶ 35. Muller contends that one "no" vote was improperly disqualified by the board during the recount. Because Muller was not allowed to intervene for the purpose of challenging that ballot, however, it is not part of the record. According to the recount minutes, the vote was excluded because it "look[ed] erased" and three canvassers could not "determine with reasonable certainty what was intended."

¶ 36. There is no statutory provision specifically addressing this issue. Wis. Stat. § 7.50(2)(b) provides that "[a] ballot cast without any marks . . . may not be counted," while Wis. Stat. § 7.50(2)(c) states that a vote should be counted "[i]f an elector marks a ballot with a cross (X), or any other marks, as |, A, V O, /, V, +, indicating an intent to vote for that candidate, it is a vote for the candidate whose name it is opposite." The board determined that the intent of the voter could not be determined and therefore excluded the vote. Because the board is the trier of fact, its findings must be upheld if they are supported by substantial evidence. Wis. Stat. § 9.01(8); DeBroux v. Bd. of Canvassers for the City of Appleton, 206 Wis. 2d 321, 331, 557 N.W.2d 423 (Ct. App. 1996).

¶ 37. This vote is crucial in determining whether the referendum succeeds or fails. If it is not counted, the referendum will pass by a margin of one vote. If it is counted, there will again be an equal number of votes in favor of and against the referendum, resulting in the referendum's failure. We must therefore remand this case to the trial court for a determination regarding the intent of the voter of the excluded "no" vote.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin statutes are to the 1999-2000 version unless otherwise noted.

       Both respondents argue that Muller should have preserved her right to participate in the action by filing a "notice of appearance" with the board. In support, they cite to one sentence in Wis. Stat. § 9.01(b)(6): "The appeal shall commence by serving a written notice of appeal on the other candidates and persons who filed a written notice of appearance before each board whose decision is appealed."
      Roth and the board argue that this provision required Muller to file a written notice of appearance or forever forfeit her right to be a party in the appeal to the circuit court. The language of the statute, however, does not support this assertion. The provision is not a requirement for potentially interested parties but rather for the elector who is appealing the board's decision to the circuit court. Nowhere does the statute suggest that a failure to file a written notice of appearance will later preclude an elector from asserting a claim. If it did, Roth's own claim would be placed in jeopardy as there is no indication in the record that she filed a written notice of appearance either. In short, we do not view the cited provision of Wis. Stat. § 9.01(b)(6) as being relevant in deciding whether Muller has a right to intervene.

       The statute at issue was the now-repealed Wis. Stat. § 6.36(1) (1939-40), which provided in part:
      The ballot clerks shall only serve on election day. It shall be their duty to take charge of the official ballots, write their names or initials upon the hack of each ballot under the printed indorsement thereon, fold it in proper manner to be deposited, and deliver to each voter as he enters the booth one ballot duly folded and indorsed.

       WISCONSIN Stat. § 6.80(2)(d) provides:
      If an elector receives a ballot which is not initialed by 2 inspectors, or is defective in any other way, the elector shall return it to the inspectors. If the initials are missing, the inspectors shall supply the missing initials. If the ballot is defective, they shall destroy it and issue another ballot to the elector.

       WISCONSIN Stat. § 5.54 provides:
      Every ballot, except a ballot label or voting machine ballot, shall bear substantially the following information on the face: "Notice to electors: This ballot may be invalid unless initialed by 2 election inspectors. If cast as an absentee ballot, the ballot must bear the initials of the municipal clerk or deputy clerk."

       Wisconsin Stat. § 7.51(2)(c) provides:
      Whenever the number of ballots exceeds the number of voting electors as indicated on the poll or registration list, the inspectors shall place all ballots face up to check for blank ballots. In this paragraph, "blank ballot" means a ballot on which no votes are cast for any office or question. The inspectors shall mark, lay aside and preserve any blank ballots. If the number of ballots still exceeds the number of voting electors, the inspectors shall place all ballots face down and proceed to check for the initials. The inspectors shall mark, lay aside and preserve any ballot not bearing the initials of 2 inspectors or any absentee ballot not bearing the initials of the municipal clerk. During the count the inspectors shall count those ballots cast by challenged electors the same as the other ballots.

       WISCONSIN Stat. § 9.01(l)(b)4 provides:
      When the container or bag has been checked, it shall be opened and the contents removed. The board of canvassers shall, without examination other than is necessary to determine that each is a single ballot, count the number of ballots therein, excluding ballots removed under s. 7.51 (2) (e). Then, for each opened absentee ballot envelope that was laid aside as defective under subd. 2., the board of canvassers shall, without inspection, randomly draw one absentee ballot from the container or bag. In differentiating absentee ballots from other ballots, the board of canvassers shall presume that a ballot initialed only by the municipal clerk, the executive director of the board of election commissioners or a deputy clerk or secretary is an absentee ballot. If there are more defective absentee ballot envelopes than there are probable absentee ballots, all of the probable absentee ballots shall be removed from the container or bag. Additional ballots shall be removed only if the number of remaining ballots still exceeds the number of voting electors recorded under subd. 1., reduced by the number of defective envelopes set aside under subd. 2. All ballots removed shall not be counted, but shall be marked as to the reason for their removal, set aside and carefully preserved. If the number of ballots still exceeds the number of voters, the board of canvassers shall place all ballots face up to check for blank ballots. Any blank ballots shall be so marked, set aside and carefully preserved. If the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under subd. 2., the board of canvassers shall place all ballots face down to check the initials. Any ballot not properly initialed by 2 inspectors or any absentee ballot not properly initialed by the municipal clerk, the executive-director of the board of election commissioners or a deputy clerk or secretary shall be temporarily set aside and the board of canvassers shall, without inspection, randomly draw from these ballots as many as are necessary to reduce the number of ballots to equal the number of voters. Any ballots removed for lack of initials shall not be counted but shall be marked, set aside and carefully preserved. If the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under subd. 2., the remaining ballots shall be returned to the container or bag and the board of canvassers shall draw a number of ballots equal to the excess number of ballots by chance and without inspection from the container or bag. These ballots shall not be counted but shall be marked as having been removed by the canvassers on recount due to an excess number of ballots, set aside and carefully preserved.

       Because we conclude that Wis. Stat. § 9.01(l)(b)4 prohibited the board from excluding the "yes" vote, we need not consider whether a voter's failure to follow directions on a ballot would justify an abrogation of that citizen's right to vote in other instances where the ballot has a technical defect but the intent of the voter is clear.

       We disagree with Muller's contention that Wis. Stat. § 7.50(2)(cm) applies here. That statute provides:
      Any apparent erasure of a mark next to the name of a candidate may not be counted as a vote for that candidate if the elector makes another mark next to the name of one or more different candidates for the same office and counting of the mark would result in an excess number of votes cast for the office.
      This provision only directs the board not to count an erasure as a vote when the elector has made another mark indicating his or her intent to vote for another candidate.


author:
WEDEMEYER, PJ.
      SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Daniel Rodriguez, Defendant-Appellant.
    Court of Appeals

      No. 00-2546-CR.

      Submitted on briefs June 5, 2001. —
    Decided August 21, 2001.

    2001 WI App 206
    (Also reported in 634 N.W.2d 844.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Diana M. Felsmann, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Lara M. Herman, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review denied 10-23-01.

   WEDEMEYER, PJ.

¶ 1. Daniel Rodriguez appeals from a judgment entered after he pled guilty to possession of a controlled substance (marijuana) with intent to deliver, contrary to Wis. Stat. § 961.41(lm)(h)l (1999-2000). Rodriguez claims that the police violated his Fourth Amendment rights when they entered his mother's home without a warrant or probable cause. Therefore, he asks this court to reverse the trial court's ruling denying his motion for suppression. Because the State failed to overcome the presumption that the entry into the home was unreasonable per se, we reverse the judgment and remand with directions to the trial court to enter an order granting the suppression motion.

I. BACKGROUND

¶ 2. On October 25, 1999, at 4:30 p.m., Rodriguez exited his home and went for a bicycle ride. He rode to his mother's home to check on her. Before returning home, he stopped to talk to his brother-in-law, who was outside his mother's residence. Meanwhile, Milwaukee Police Officers Johnny Santiago and Aaron Kohlhepp were patrolling a "hot spot" in an unmarked police car. Santiago stated that a "hot spot" is an area about which the police have received complaints regarding "a lot of traffic going into and from a particular house" of people the residents do not recognize.

¶ 3. The officers noticed Rodriguez riding his bicycle. The officers observed the "hot spot" for approximately five minutes and then circled the block. When the officers returned, they saw Rodriguez riding his bike back and forth in the alley adjoining a residential building. The officers drove toward Rodriguez, hoping to engage him in a voluntary conversation. Officer Kohlhepp rolled down his window and said, "What's up?" Rodriguez dropped his bicycle and ran into his mother's home. Officer Kohlhepp ran after him, entered the home, and chased him through the kitchen. Rodriguez attempted to close the basement door, but Officer Kohlhepp stuck his arm in the door to prevent it from closing. Rodriguez fled down the basement stairs with his hand in his coat pocket. Officer, Kohlhepp saw Rodriguez remove a plastic baggie from his pocket and throw it. The bag contained marijuana.

¶ 4. Rodriguez was charged with possession with intent to deliver. He filed a motion to suppress the evidence, claiming that the police lacked probable cause to enter the home without a warrant. The trial court denied the motion. Rodriguez entered a guilty plea. He now appeals.

II. DISCUSSION

¶ 5. The issue in this case is whether the police officer's warrantless entry into the home was constitutional. The trial court ruled that the flight from the officer constituted reasonable suspicion. The trial court found that the warrantless entry was justified by the flight, coupled with a belief that exigent circumstances — that is, destruction of evidence — were present. We disagree.

¶ 6. In reviewing the suppression order, we are presented with a mixed question of fact and law. State v. Hughes, 2000 WI 24, ¶ 15, 233 Wis. 2d 280, 607 N.W.2d 621, cert. denied, 531 U.S. 856 (2000). We review the trial court's findings of fact under the clearly erroneous standard. Id. Whether the Constitution was violated, however, is a question of law which we review independently. Id.

¶ 7. The Fourth Amendment to the United States Constitution provides that:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV The Wisconsin Constitution is essentially the same. Wis. Const, art. I, § 11.

¶ 8. "Warrantless searches 'are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions' that are 'jealously and carefully drawn." State v. Kryzaniak, 2001 WI App 44, ¶ 14, 241 Wis. 2d 358, 624 N.W.2d 389 (citations omitted). "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). A fundamental safeguard against unnecessary invasions into private homes is the Fourth Amendment's warrant requirement, imposed on all governmental agents who seek to enter the home for purposes of search or arrest. Id. The Fourth Amendment stands for the right of a person to retreat into his/her own home and there be free from unreasonable governmental intrusion. Payton v. New York, 445 U.S. 573, 589-90 (1980). "When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent" who may be caught up in the "competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948).

¶ 9. If the police do not have a warrant, they bear the heavy burden of trying to demonstrate exigent circumstances to overcome the presumption of unreasonableness. Welsh, 466 U.S. at 750. Four factors have been identified that, when measured against the time needed to obtain a warrant, constitute the 'exigent circumstances required for a warrantless entry: (1) an arrest made in "hot pursuit"; (2) a threat to the safety of a suspect or others; (3) a risk that evidence would be destroyed; and (4) a likelihood that the suspect would flee. State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986).

¶ 10. It is undisputed here that the police entered the home without a warrant. Thus, we start from a position of presuming that the entry violated the Fourth Amendment. The burden is on the government to overcome that presumption. To prove that the entry was lawful, the government must demonstrate that: (1) the police had probable cause to believe that the house contained drugs; and (2) that the exigent circumstance of destruction of evidence existed. See Hughes, 2000 WI 24 at ¶ 8. We conclude that the State has failed to overcome the presumption.

A. Probable Cause.

¶ 11. The trial court in this case did not find that probable cause to search the house existed. Rather, the trial court ruled that the officers had reasonable suspicion, plus exigent circumstances. The State, however, contends that the officers had probable cause.

¶ 12. The officers had the following facts: (1) this location was a "hot spot"; (2) during the short time they were observing the home, three people entered, stayed a short period of time, and then exited; (3) the officers had been to this home two months earlier to make arrests for drug dealing; (4) the officers observed Rodriguez riding his bike outside the residence and, when approached, Rodriguez fled. From these circumstances, the State asks this court to conclude that the officers had probable cause to believe that there was drug activity occurring inside the home.

[H]

¶ 13. We cannot so conclude. Although flight from a police officer in a drug-trafficking area may constitute reasonable suspicion to conduct a Terry stop, it does not rise to the level of probable cause. See Illinois v. Wardlow, 528 U.S. 119 (2000).

¶ 14. In a search context, the proper probable cause inquiry is whether evidence of a crime will be found. Hughes, 2000 WI 24 at ¶ 21 . "The quantum of evidence required to establish probable cause to search is a 'fair probability' that contraband or evidence of a crime will be found in a particular place." Id. (citation omitted).

¶ 15. Here, that fair probability standard has not been satisfied. The police officers had never seen Rodriguez before this date. No officer actually saw any drugs on Rodriguez or the other three individuals who came and left the home while the officers were watching. The officers did not observe anyone actually selling drugs, or identify any of the individuals as known drug dealers. In fact, Officer Kohlhepp testified that he thought Rodriguez fled because of the "possibility" that Rodriguez would destroy evidence. In addition, the officers never identified themselves as the police, and they never asked Rodriguez to stop. Fleeing from strangers into the safety of a home does not constitute a "fair probability" that drugs will be found. Under these circumstances, we conclude that the State failed to overcome the presumption that the search in this case was unreasonable.

B. Exigent Circumstances.

¶ 16. Even if probable cause existed, the State would also have to prove that exigent circumstances were present. The State rests its argument solely on the exigent circumstance of destruction of evidence. The State contends that exigent circumstances existed because Rodriguez ran into the home, presumably to tell whoever was inside that the police were outside so that any illegal drugs could be destroyed. We are not convinced that the circumstances here present the exigency required to overcome the Fourth Amendment's guarantee that individuals are entitled to retreat into the sanctity of their homes.

¶ 17. In assessing the applicability of the exigent circumstances exception to the warrant requirement for entry into private residences, we balance the urgency of a police officer's need to enter against the time needed to obtain a warrant. State v. Richter, 2000 WI 58, ¶ 28, 235 Wis. 2d 524, 612 N.W.2d 29. The State bears the burden of proving the existence of exigent circumstances to justify warrantless entry into the home. Id. at ¶ 29.

¶ 18. The existence of exigent circumstances justifying the warrantless entry into a home turns on considerations of reasonableness and involves an objective test: " 'whether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect's escape.'" Id. at ¶ 30 (citation omitted).

¶ 19. Here, the State argues that because the officers knew that this was a "hot spot," that they had been at the residence two months earlier for drug arrests, that three people came and went from the residence during the officers' observation, and that Rodriguez was riding his bike around outside and then fled when asked, "What's up?" by one of the officers, the exigent circumstances exception applies. We cannot agree. There was no evidence that the officers had reason to believe that Rodriguez was a drug dealer or user. The officers had never seen him before. There is no evidence that the officers saw any known or suspected drug dealer or user enter or exit the residence. There is no evidence that the officers saw any illegal drugs.

¶ 20. Moreover, the State cannot rely on the "hot pursuit" exception because "hot pursuit" is defined as an "immediate or continuous pursuit of [a suspect] from the scene of a crime." State v. Kryzaniak, 2001 WI App 44, ¶ 17, 241 Wis. 2d 358, 624 N.W.2d 389. There is nothing in the record to indicate that Rodriguez was a suspect being chased from the scene of a crime.

¶ 21. This case presents a somewhat unusual set of facts: where a Terry stop is essentially prevented because the individual retreats into a home. We have held that a suspect may not walk away from an officer conducting a Terry stop, and that the officer may restrain any suspect who attempts to do so. State v. Goyer, 157 Wis. 2d 532, 538, 460 N.W.2d 424 (Ct. App. 1990) ("[t]he right to make a Terry stop would mean little if the officer could not restrain a suspect who attempts to walk away from the investigation"). However, the circumstances presented here are distinct from Goyer. First, the police officers never identified themselves, which they must do in order to conduct a valid Terry stop. Wis. Stat. § 968.24. Second, Rodriguez was never ordered to stop by the police, as in Goyer. The only thing the officer said to Rodriguez was, "What's up?" Officer Santiago confirmed that the police officers said nothing else to Rodriguez.

¶ 22. Thus, the question becomes whether the warrantless entry into a home is justified when an individual flees from an officer attempting to conduct an investigative stop. As in most Fourth Amendment cases, we cannot set forth a bright-line rule, but must examine each case under its particular facts and circumstances. We are offered some guidance from Welsh, where the United States Supreme Court addressed a situation involving a drunk driver who abandoned his car and walked home before the police arrived at the scene. Welsh, 466 U.S. at 742. In that case, the police obtained Welsh's address and when his stepdaughter answered the door, the police gained entry into the home. Id. at 742-43. The police proceeded to arrest Welsh for drunk driving. Id. at 743. The Supreme Court found that this entry and arrest violated the Fourth Amendment. Id. at 754-55. They relied in part upon the gravity of the underlying offense: the "special protection afforded the individual in his home by the Fourth Amendment" id. at 754, based on the exigent circumstances exception, "in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . .. has been committed." Id. at 753. Here, the officers did not have probable cause to believe any offense had been committed. Rather, at best, the information they had supplied only reasonable suspicion.

¶ 23. Thus, Rodriguez is entitled to the "special protection" afforded by the Fourth Amendment in guarding against unreasonable searches into private homes. In that respect, if an officer is going to enter a private residence without a warrant, the exigency factors must rise well above the facts and circumstances presented here. If we sanction a warrantless entry based upon bicycle riding, three visitors in and out of the home, and Rodriguez retreating into the home when asked, "What's up?" by strangers in an unmarked police car, we may as well grab a toboggan and start sliding because the revered privacy of an individual in his/her own home will become a slippery hill.

III. CONCLUSION

¶ 24. We conclude that the State failed to overcome the presumption that the warrantless search of a private residence is per se unreasonable. We conclude that the State failed to establish probable cause or exigent circumstances. Accordingly, we must reverse the judgment and remand the matter, with directions to the trial court to suppress the evidence obtained as a result of the illegal entry.

By the Court. — Judgment reversed and cause remanded with directions.

SCHUDSON, J.

¶ 25. {concurring). Although I agree that we must reverse, I depart from the majority's analysis and offer a different approach.

¶ 26. In the trial court, the prosecutor argued that the warrantless entry was justified by probable cause and exigent circumstances. The trial court found, however, that the police had reasonable suspicion, which, in combination with exigent circumstances, supported the warrantless entry. Rodriquez argues that the trial court applied the wrong standard. Rodriguez is correct.

¶ 27. Rodriguez maintains that under Payton v. New York, 445 U.S. 573 (1980) and its progeny, reasonable suspicion and exigent circumstances are not sufficient to justify a warrantless home entry; probable cause and exigent circumstances are required. The State concedes Rodriquez' legal premise. The State argues, however, that "the trial court's mention of reasonable suspicion may have been a simple misstatement." The State also argues that the officers did have "probable cause to believe that the residence contained evidence of a crime," and that "it was reasonable for the officers to believe there was a fair probability that evidence of drug activity would be found in the residence." (Emphases added.) The State's arguments are flawed in two respects.

¶ 28. First, the record belies the State's contention that the court's reference to reasonable suspicion "may have been a simple misstatement." The prosecutor had argued probable cause, but the trial court's comments were specific and repeated:

If the defendant had .. . essentially walked into the house and closed this door, that... would [have] been the end of the police involvement, but the fact [is] that ... upon the initiation of conversation with the police as to "what's up?"[,] his response is to take flight. It is at this time as he takes flight, the Court finds that the police have reasonable suspicion. Although they've testified at this point that there was observable activity which they believed was suspicious, it's the flight in the totality of circumstances which gives reasonable suspicion.
The police at this point in time are doing nothing more than continuing the investigation, and at this time, given the reasonable suspicion of the defendant, they are pursuing the defendant.

(Emphases added.)

¶ 29. Second, at best, the State has offered an argument for facts that could have supported a search warrant for the residence. Probable cause to believe that "evidence of drug activity" was in the residence, however, cannot be superimposed on Rodriquez to establish probable cause for a warrantless entry to arrest him.

¶ 30. In the trial court, the prosecutor, apparently realizing that probable cause was necessary to justify the warrantless entry, argued that the facts established probable cause. The court, however, reasonably rejected her argument and, instead, found that the facts established only reasonable suspicion. To that point, the court was correct. The trial court, however, then erred in failing to recognize that reasonable suspicion could not support a warrantless home entry.

¶ 31. Accordingly, I would summarily reverse and, therefore, I respectfully concur.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        Terry v. Ohio, 392 U.S. 1 (1968).