text:
    State of Wisconsin, Plaintiff-Respondent, v. Albert Jackowski, Defendant-Appellant.
    Court of Appeals

      No. 00-2851-CR.

      Submitted on briefs May 4, 2001. —
    Decided July 26, 2001.

    2001 WI App 187
    (Also reported in 633 N.W.2d 649.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas E. Hayes, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, Roggensack and Deininger, JJ.
   DEININGER, J.

¶ 1. Albert Jackowski appeals a judgment convicting him of one count of possessing a short-barreled rifle and one count of possessing a firearm silencer, both felonies. Jackowski claims that the trial court erred by denying his motion to suppress evidence allegedly obtained as the fruits of an illegal search. We disagree and affirm Jackowski's convictions.

BACKGROUND

¶ 2. An assistant building inspector for the City of Franklin applied for a special inspection warrant to inspect a residence owned by Jackowski for municipal building code violations. A municipal judge issued the warrant based on an affidavit submitted by the inspector which stated as follows:

[The inspector], being duly sworn, under oath deposes and states, that he is an Assistant Building Inspector of the Inspection Department of the City, of. Franklin. That on the 1st day of March, 1999, in said county in and upon certain premises in the City of Franklin, to-wit, 3842 West Puetz Road, there now exists a necessity to determine if said premises, including the interior of any buildings on the property, are in compliance with City of Franklin Municipal Code Sections 11.07(3), 11.07(2)(a) and 11.07(7)(a); all code sections for which the owners of the property have received municipal citations alleging violations and which are still pending in the City of Franklin Municipal Court and City of Franklin Municipal Code Sections 190-28 through 190-30 (private sewage system) and 178-5 (dilapidated building).
The facts tending to establish the grounds for issuing a special inspection warrant are as follows:
1. [The inspector], being duly sworn on oath, says that he is an Assistant Building Inspector for the Inspection Department of the City of Franklin.
2. That the purpose of the inspection is to follow up on citizen complaints regarding the above-mentioned alleged Building Code violations and to determine whether or not any other Code violations exist.
3. That upon information and belief, said conditions may currently exist.
4. That the premises are not a public building.
WHEREFORE, your affiant... prays that a special inspection warrant be issued to search such premises for the aforesaid purposes.

¶ 3. Two City of Franklin police officers accompanied three members of the Franklin Building Inspection Department to Jackowski's house to execute the special inspection warrant. According to the criminal complaint, the officers knocked several times before opening the door, which was unlocked. Upon entering the house, the officers announced their presence several times, stating that they were there on a special inspection warrant. The officers first walked into the kitchen which was covered with more than a foot of refuse. The officers reported that the entire house was in an "extreme state of disarray." They walked throughout the house to see if anyone was in it, consistent with their purpose of providing security for the inspectors, but found no one.

¶ 4. The officers observed numerous firearms scattered throughout the house "in plain view," including items which appeared to be short-barreled rifles and silencers. A special agent from the Federal Bureau of Alcohol, Tobacco and Firearms was called to the scene and confirmed that the items were short-barreled rifles and silencers, and that possession of these weapons violated Wisconsin law. Based on what they observed while assisting in the execution of the inspection warrant, the police obtained a criminal search warrant from a court commissioner to search for and seize the illegal weapons.

¶ 5. Several Franklin police officers executed the search later that evening, seizing firearms and other contraband. The State subsequently charged Jackowski with two counts of possessing a short-barreled rifle in violation of Wis. Stat. § 941.28(2) (1999-2000), and three counts of possessing a firearm silencer in violation of Wis. Stat. § 941.298(2).

¶ 6. Jackowski moved to suppress the evidence seized in the execution of the criminal search warrant. The criminal warrant was issued based on information obtained during the execution of the inspection warrant, and Jackowski claimed the inspection warrant was defective because the application for it did not establish probable cause that code violations then existed on the premises. Jackowski also pointed to the lack of an allegation that he had refused consent to an inspection of the premises, as required under Wis. Stat. § 66.0119(2) ("[SJpecial inspection warrants shall he issued . . . only upon showing that consent to entry for inspection purposes has been refused."). The circuit court denied Jackowski's motion to suppress, concluding that, although the inspection warrant did not meet the statutory requirement, the police had acted in good faith:

I do find that there is a Fourth Amendment violation here because I have found ... that that first warrant was defective. But I am going to go out on a limb here and find that the good-faith exception kicks in. . .. It's clear to me from this record that the Franklin city officials were really going after a dilapidated building and had apparently repeatedly gone after that building due to the pending municipal charge.... The City of Franklin police weren't doing anything unlawful. They were asked to accompany the inspector. They saw their municipal judge's inspection warrant. It appeared to be valid to them. Nobody would know that that warrant was defective on its face.

¶ 7. Following the denial of his motion, Jackowski pled guilty to two of the illegal weapons charges. He now appeals, citing as error the denial of his motion to suppress the evidence police seized following the inspection of his building.

ANALYSIS

¶ 8. Jackowski does not challenge the issuance of the criminal search warrant, conceding that when the police obtained it, they had probable cause to believe evidence of a crime would be found in his building. Jackowski argues, however, that the evidence seized should have been suppressed because the issuance of the criminal warrant was based exclusively on the officers' observations during the execution of the inspection warrant. He claims the initial building inspection warrant was unlawfully issued, and that without it, police would not have acquired the information which led to the issuing of the criminal warrant and the seizure of evidence.

¶ 9. When the issuance of a warrant is challenged on appeal, our focus is not on the trial court's decision to grant or deny a suppression motion but on the issuing magistrate's determination that the application for the warrant was sufficient to support its issuance. The person challenging the warrant bears the burden of demonstrating that the evidence before the issuing magistrate was clearly insufficient. Ritacca v. Kenosha County Court, 91 Wis. 2d 72, 78, 280 N.W.2d 751 (1979). Even though a question of law is presented, our review of the magistrate's determination is not de novo, rather, we pay "great deference" to the magistrate's decision. Illinois v. Gates, 462 U.S. 213, 236 (1983); State v. DeSmidt, 155 Wis. 2d 119, 132, 454 N.W.2d 780 (1990). The supreme court has explained that a deferential standard of review is " 'appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.'" State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 (1994) (citations omitted).

¶ 10. A criminal search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate. State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). In the case of a criminal search warrant, there must be probable cause to believe that objects linked to the commission of a crime are likely to be found in the place designated in the warrant. State v. Ehnert, 160 Wis. 2d 464, 470, 466 N.W.2d 237 (Ct. App. 1991). However, the constitutional standard for issuance of "administrative warrants," such as the "special inspection warrant" at issue in this case, is very different.

¶ 11. The U.S. Supreme Court in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), explained the Fourth Amendment standards applicable to administrative building code inspections. The Court held that, absent consent, an inspection executed under an administrative code enforcement program requires a warrant, but administrative inspection warrants may be issued on a showing other than probable cause to believe "a particular dwelling contains violations." Id. at 534. Rather, the Court concluded that,

"probable cause" to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building ... or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.

Id. at 538 (emphasis added).

¶ 12. The Seventh Circuit discussed Camara's holding and applied it to a Wisconsin city's "special inspection warrants" in Platteville Area Apartment Ass'n v. City of Platteville, 179 F.3d 574 (7th Cir. 1999). The court noted that

Camara and the other decisions that allow the use of warrants for administrative or regulatory searches modify the conventional understanding of the Fourth Amendment's 'probable cause' requirement for warrants, since it is the essence of such searches that there is no probable cause to believe that a particular search will yield evidence of a violation of law.

Id. at 578. Thus, Jackowski's claim that the application for the inspection warrant was deficient because it did not establish probable cause to believe code violations then existed in his building is unavailing.

¶ 13. Jackowski does not challenge on appeal, nor did he in the trial court, the overall "reasonableness" of the City of Franklin's "regulatory package that includes compulsory inspections." Platteville, 179 F.3d at 578. We thus deem him to have conceded the existence of "reasonable legislative or administrative standards" for conducting a building code enforcement inspection of his building. Camara, 387 U.S. at 538. Additionally, we observe that the application is made under oath and generally follows the "illustrative" format provided in Wis. Stat. § 66.0119(3). The applicant is identified as a person authorized to conduct building inspections in the City of Franklin. The code provisions to be enforced are cited, and the need for the current inspection is described: citizen complaints of code violations, as well as a determination of whether previously cited violations (pending in municipal court) are still present.

¶ 14. Given the deference we are to accord warrant-issuing magistrates, we conclude that the application presented sufficient information for the municipal judge to determine that the applicant was authorized under the city's building code to go into Jackowski's building for the purposes noted. Put another way, we conclude the special inspection warrant meets the Camara standard for issuance of an administrative inspection warrant.

¶ 15. Jackowski makes no claim, and there is nothing in the record to indicate, that the Franklin police used the building inspector as their "stalking horse," that is, that officers gained entry to Jackowski's building on a pretense in order to pursue a criminal investigation at a time when they lacked probable cause to obtain a criminal search warrant. See State v. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781. Neither does Jackowski argue that the officers initially discovered the illegal weapons in locations that were other than "in plain view." See Michigan v. Clifford, 464 U.S. 287, 294 (1984) ("If evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the 'plain view' doctrine ... [and also] may be used to establish probable cause to obtain a criminal search warrant."). Finally, no claim is made, nor facts presented to suggest, that the initial building inspection exceeded the scope of the special investigation warrant. See Platteville, 179 F.3d at 582 ("An inspection that did not involve rummaging through closets and bureau drawers would clearly be a reasonable method of enforcing the housing code.").

¶ 16. Jackowski does argue, however, that the seized evidence must be suppressed because the inspection warrant was unlawful in that it did not comply with Wis. Stat. § 66.0119(2), which requires that a "special inspection warrant" be issued "only upon showing that consent to entry for inspection purposes has been refused." The State responds that the municipal judge who issued the warrant could reasonably have inferred from the fact of the past code violations, that seeking Jackowski's consent to inspect would have been futile. We do not necessarily agree.

¶ 17. We accept, however, the State's alternative argument that refusal of consent is not a constitutional requirement for issuance of an administrative warrant, and suppression is not available as a remedy for a "mere" statutory violation. As we have recently explained, numerous Wisconsin "cases stand for the proposition that the exclusionary rule is applicable in civil and criminal proceedings only where the evidence sought to be excluded was obtained in violation of a constitutional right or a statute that specifically requires suppression of wrongfully or illegally obtained evidence as a sanction." State ex. rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999).

¶ 18. We have discussed above the Fourth Amendment standard for the issuance of administrative inspection warrants, and a refusal of consent is not within it. When the Supreme Court noted in Camara that "it seems likely that warrants should normally be sought only after entry is refused," it was not discussing the requirements for warrant issuance. The Court was simply explaining, at the end of its opinion, why its holding would not prove unduly burdensome to municipal building code enforcement. See Camara, 387 U.S. at 539-40. Thus, we conclude that the lack of an averment that consent to inspect had been refused is a statutory violation only, not an omission of constitutional dimension requiring suppression as a remedy. Finally, we note that Wis. Stat. § 66.0119 (or its predecessor, see footnote 3) does not specifically require suppression of any evidence obtained in violation of its provisions.

¶ 19. In summary, we conclude that the issuance of the special inspection warrant authorizing a city building inspector to enter Jackowski's building to inspect for building code violations did not violate Jackowski's rights under the Fourth Amendment. No evidence of criminal wrongdoing obtained by police as a result of their accompanying the inspector need therefore be suppressed. Because we conclude that there was no Fourth Amendment violation, it is not necessary for us to decide, as the trial court did, that a "good faith exception" should apply on the present facts.

CONCLUSION

¶ 20. For the reasons discussed above, we affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       The complaint recites a neighbor's statement that Jack-owski had not lived in the house since 1997, but that he was observed visiting it several times a month.

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

       The statute is a successor, effective January 1, 2001, to Wis. Stat. § 66.122 and .123 (1997-98). The language at issue in this case has not changed from the earlier version, which was in effect at the time the warrant for Jackowski's building was issued.

       Circuit Judge Kitty K. Brennan denied Jackowski's motion to suppress, following which the case was transferred to Circuit Judge Dennis E Moroney, who subsequently enteréd the judgment which Jackowski appeals. See Wis. Stat. § 971.31(10) ("An order denying a motion to suppress evidence ... may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.").

       See also Cooper v. California, 386 U.S. 58, 61 (1967):
      [T]he question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.

       The Court also noted, for example, that its holding did not preclude warrantless entries in emergency situations, and that "most citizens allow inspections of their property without a warrant." Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 539 (1967).

       See State v. Eason, 2001 WI 98, ¶ 3, 245 Wis. 2d 206, 629 N.W.2d 625, where the supreme court held "that the good faith exception applies where the State has shown, objectively, that the police officers reasonably relied upon a warrant issued by an independent magistrate... [and] that the process used in obtaining the search warrant included a significant investigation and a review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney."


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Michael A. Sisk, Defendant-Respondent.
    Court of Appeals

      No. 00-2614-CR.

      Submitted on briefs July 6, 2001. —
    Decided July 31, 2001.

    2001 WI App 182
    (Also reported in 634 N.W.2d 877.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Elvis Cardell Banks, of the Law Offices of Elvis Cardell Banks, of Milwaukee.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. The State of Wisconsin appeals from the trial court order dismissing the charge of possession of a f irearm by a felon, against Michael A. Sisk, following a suppression motion hearing. The State argues that the court erred in viewing the informant's 9-1-1 call in this case as an anonymous tip and, therefore, in failing to correctly consider the totality of the circumstances. Because the 9-1-1 caller in this case gave what he said was his name, we agree with the State. Accordingly, we reverse.

¶ 2. The facts are undisputed. They were offered at the motion hearing by the parties' stipulation to: (1) the information in the computer-assisted dispatch report of the 9-1-1 call; and (2) the information in the police reports prepared by the arresting officer, his partner, and the detective who interviewed Sisk following the arrest.

¶ 3. At 11:42 EM. on February 9, 2000, a City of Milwaukee Police Department dispatcher received a telephone call from a person reporting that he had seen two men enter a building at 2466 North Teutonia Avenue with guns. The caller described their race and clothing, and he also said that his name was "Sedrick Forbes."

¶ 4. Police officers responded to the target address, arriving at 11:48 EM. They observed two men, matching the caller's descriptions, sitting in a car one-half block from 2466 North Teutonia Avenue. The police approached the car, briefly questioned the suspects, and one of the officers asked Sisk, who was in the passenger's seat, to get out. The officer frisked Sisk and found a gun in his pants pocket.

¶ 5. Ruling that the police did not have reasonable suspicion to stop Sisk, the trial court granted his motion to suppress. Significantly, the court commented that "the critical legal decision" it had to make was whether the call was "an anonymous tip or not." Concluding that it was, the court reasoned that the fact that the caller gave a name was not enough to establish the reliability of the information because the call (coming from a payphone), and the caller (leaving nothing other than his name to identify himself), had not allowed for verification. The court stated:

[I]f there was something about Mr. Forbes giving his name that help [sic] us link back to him so we could prosecute him if it was a false tip[,] or if there is something there where we could track it down to flush it out or corroborate or to have him come to court and tell us what he saw, then I would say it's not an anonymous tip[,] but simply giving us his name and calling from a pay phone is the same in my mind as if he was anonymous.

Therefore, the court explained, because the tip "gave no predictive information and the information that it gave about Mr. Sisk's clothing and his location is something that anybody on the street who is willing to make something up about Mr. Sisk could have given," the information was insufficient to justify the stop.

¶ 6. The State argues that the trial court erred in viewing the call as an anonymous one. The State contends that because the caller gave what he said was his name, this case is significantly distinguishable from Florida v. J.L., 529 U.S. 266 (2000), in which the United States Supreme Court concluded that "an anonymous tip that a person is carrying a gun is, without more, [in] sufficient to justify a police officer's stop and frisk of that person." Id. at 268. The State is correct.

¶ 7. A trial court's determination of whether undisputed facts establish reasonable suspicion justifying police to perform an investigative stop presents a question of constitutional fact, subject to de novo review. See State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. As the Wisconsin Supreme Court recently reiterated:

A law enforcement officer may lawfully stop an individual if, based upon the officer's experience, she or he reasonably suspects "that criminal activity may be afoot." Wisconsin codified the Terry [v. Ohio, 392 U.S. 1 (1968)] stop standard in Wis. Stat. § 968.24. We determine whether a stop was lawful in light of Terry and the cases following it.
In determining whether the police have lawfully conducted a Terry stop, we consider the totality of the circumstances. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the 'totality of the circumstances — the whole picture,'. ..." The totality-of-the-circumstances approach views the quantity and the quality of the information as inversely proportional to each other. "Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Conversely, if the tip contains a number of components indicating its reliability, then the police need not have as much additional information to establish reasonable suspicion.
In considering the totality of the circumstances, however, our focus is upon the reasonableness of the officers' actions in the situation facing them. "The essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances present."

Williams, 2001 WI 21 at ¶¶ 21-23 (citations and footnote omitted).

¶ 8. Here, because the caller gave what he said was his name, the trial court erred in viewing the call as an anonymous one. Whether the caller gave correct identifying information, or whether the police ultimately could have verified his identity, the fact remains that the police could have reasonably concluded that the caller, "by providing self-identifying information, . . . risked that [his] identity would be discovered." See id. at ¶ 35. Therefore, unlike the situation in J.L., where the tip was from "an unknown location by an unknown caller," J.L., 529 U.S. at 270, here the caller provided "self-identifying information" — his name.

¶ 9. "[I]f 'an informant places his [or her] anonymity at risk, a court can consider this factor in weighing the reliability of the tip.1" Williams, 2001 WI 21 at ¶ 35 (quoting J.L., 529 U.S. at 276, Kennedy, J., concurring). Further, when a caller gives his or her name, police need not verify the caller's identity before acting on the tip. State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994) (" '[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.'") (citation omitted). As the Wisconsin Supreme Court declared, "we view citizens who purport to have witnessed a crime as reliable, and allow the police to act accordingly, even though other indicia of reliability have not yet been established." Williams, 2001 WI 21 at ¶ 36. See also State v. Paszek, 50 Wis. 2d 619, 631, 184 N.W.2d 836 (1971) (" 'A citizen who purports ... to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested.'") (quoted source omitted). Dangerously, any other holding would require police to take critically important time to attempt to verify identification rather than respond to crimes in progress.

¶ 10. Thus, in this case, the reasonableness of the police suspicion is more firmly based than that in J.L. The caller gave information about the suspects and their location, which the police verified before stopping them. The caller also gave what he said was his name. We see no legal or logical reason to indulge the factual fiction that would convert this non-anonymous call to an anonymous one, and thus exclude its apparent reliability as a very significant factor to be considered in "the totality of the circumstances" determining the lawfulness of the investigative stop. See Williams, 2001 WI 21 at ¶ 22.

¶ 11. Accordingly, we conclude that when a caller identifies himself or herself by name, thus providing "self-identifying information" that " 'places his [or her] anonymity at risk,'" see id. at ¶ 35, and when the totality of the circumstances establishes a reasonable suspicion that" 'criminal activity may be afoot,'" see id. at ¶ 21, the police may execute a lawful stop, see id. at ¶¶ 21-23; see also Wis. Stat. § 968.24 (1999-2000).

By the Court. — Order reversed.

       "The term '9-1-1' refers to emergency assistance telephone number." State v. Williams, 2001 WI 21, ¶ 4 n.1, 241 Wis. 2d 631, 623 N.W.2d 106; see Wis. Stat. § 146.70 (1999-2000).

       The call was made from a coin-operated telephone at Curly's Grocery Store, located at 2451 West Center Street. This court notes that 2451 West Center Street is approximately fourteen blocks away from 2466 North Teutonia Avenue in Milwaukee.

       An obvious exception, of course, could arise where police believe the caller is "a prankster." See Williams, 2001 WI 21 at ¶ 35 n.11. In this case, nothing suggests that the caller was anyone other than a concerned citizen.
      The evidence in this case established that the police did not locate the caller or confirm his identity before responding to the scene. The prosecutor informed the trial court that he did not know whether police attempted to locate the caller after Sisk's arrest, but the computer-assisted dispatch report of the 9-1-1 call reflects an entry for February 10, 2000, at 12:02 A.M.: "unable to locate complt."

        See United States v. Valentine, 232 F.3d 350 (3d Cir. 2000), cert. denied, 121 S. Ct. 1748 (2001), in which the court, refusing to "second-guess the officers' decision to pursue the suspect immediately," commented that had the police "stalled for more lengthy questioning of the informant, the armed suspect could have escaped detection." Id. at 355. Thus, the court explained, "[w]hat matters ... is not that the officers could guarantee that they could track down the informant again," but rather, "whether the tip should be deemed sufficiently trustworthy in light of the total circumstances." Id. Although Valentine involved a face-to-face contact between the police and the informant, and although, therefore, the police had an immediate opportunity to assess the demeanor of the informant to help them measure his credibility, the legitimate concerns the court expressed about police delay are equally applicable here.
      Indeed, in a case like the instant one, taking the time to confirm a caller's identity could compromise the caller's information; time would pass, and the situation reported by the caller could change. Thus, understandably, in neither Williams nor the instant case- did the police pause. In Williams, "the officers arrived at the scene four minutes after the dispatch," Williams, 2001 WI 21 at ¶ 40 n.17, and here, the police arrived three minutes after the dispatch.

       The State notes that in the trial court neither the parties nor the court addressed the legality of the frisk of Sisk, following the stop. The trial court, however, had no reason to address the legality of the frisk because: (1) it concluded that the stop was unlawful; and (2) defense counsel's trial court brief in support of the motion to suppress and defense counsel's oral argument at the motion hearing established that Sisk's challenge was based exclusively on the theory that the informant's call was "an anonymous call from a pay phone" that "provided the police without means to test the informant's knowledge or credibility," and, therefore, "[s]ince the police did not have any reasonable, articulable basis for asking Mr. Sisk to step out of his car, the gun seized is the product of an illegal search and should be suppressed as fruit of the poisonous tree."


author: HOOVER, PJ.

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

    Court of Appeals

      Nos. 00-2852, 00-2853.

      Submitted on briefs June 11, 2001.—

      Decided July 31, 2001.

    2001 WI App 188
    (Also reported in 634 N.W.2d 338.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Tayr Kilaab al Ghashiyah (Khan), finia John Casteel, of Green Bay.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-23-01.

   HOOVER, PJ.

¶ 1 John Casteel appeals an order denying postconviction relief. Casteel was convicted and sentenced in two separate trials for armed robbery of two banks while disguised, contrary to Wis. Stat. §§ 943.32(2) and 946.62, and possessing a firearm as a felon, contrary to Wis. Stat. § 941.29(2). Casteel was sentenced in 1985 and 1986 as an habitual offender, Wis. Stat. § 939.62(1)(c), to a total of fifty years in prison. In this, his eighth postconviction motion appeal, Casteel argues, to the best we can discern, that the circuit court lacked jurisdiction to convict and sentence him, that his sentence should be modified because of a new factor, and that he was denied effective postconviction and appellate counsel. We reject each of his arguments and affirm. Additionally, we conclude that this appeal is frivolous and sanction Casteel accordingly.

BACKGROUND

¶ 2. In a direct appeal of his first conviction, Casteel raised "numerous issues challenging the trial court's jurisdiction, his arrest, the admissibility of evidence, the conduct of the trial, the sufficiency of the evidence, and his sentence. He also argue[d] that his counsel was ineffective for failing to raise or pursue some of these issues." State v. Casteel, No. 85-2248-CR, unpublished slip op. at 1 (Wis. Ct. App. Feb. 10, 1987). We specifically addressed whether there was sufficient evidence adduced at the preliminary hearing; whether the circuit court lacked jurisdiction because the information was not timely filed; whether the circuit court had subject matter jurisdiction; whether Casteel was unlawfully arrested for lack of a judicial arrest warrant; whether the search of Laura Voight's home, where he was staying, was unreasonable; whether Voight's consent to search was obtained through threats or duress; whether the circuit court violated Casteel's constitutional right to free exercise of his Muslim religion; whether the circuit court improperly delayed the return of his personal property at the end of the trial; whether admission of "prior crimes evidence" denied Casteel a fair trial; whether there was sufficient evidence to support the guilty verdict; whether the circuit court properly exercised its discretion in sentencing Casteel; and whether Casteel's counsel was ineffective at trial. We affirmed Casteel's conviction. Id.

¶ 3. In a direct appeal of his second conviction, we addressed "many issues on appeal relating to all phases of his arrest, the trial, and sentencing." State v. Casteel, No. 86-0605-CR, unpublished slip op. at 1 (Wis. Ct. App. May 5, 1987). We noted that "[m]any of the issues Casteel raises on appeal lack arguable merit. He argues at length about 'individual sovereignty' and 'natural rights,' as well as the court's subject matter and personal jurisdiction over him." Id.

¶ 4. We specifically addressed whether Casteel was unlawfully arrested; whether the court erroneously refused to suppress evidence; whether the circuit court should have suppressed an in-court and an out-of-court identification; whether Casteel was denied a speedy trial; whether the circuit court erred by allowing "other crimes" evidence; and whether the circuit court erroneously exercised its discretion in sentencing Casteel. Id. at 1-5. We affirmed the judgment.

¶ 5. After his direct appeals, Casteel filed eight appeals in this court challenging the denial of various motions for postconviction relief. The two circuit court cases were consolidated for each of his appeals. In State v. Casteel, Nos. 92-0321 and 92-0322, unpublished slip op. at 1 (Wis. Ct. App. Aug. 6, 1992), Casteel raised eleven grounds for reversing and vacating his convictions, eight of which had previously been reviewed and rejected. The three additional arguments this court addressed were: whether Casteel's conviction should be overturned because he was not promptly brought before a magistrate when he was arrested; whether the district attorney improperly commented on his exercise of his right to remain silent; and whether he was denied access to his presentence report. This court rejected his arguments and summarily affirmed the circuit court's denial of habeas corpus relief. Id. at 2.

¶ 6. In State v. Casteel, Nos. 93-1306-CR and 93-1307-CR, unpublished slip op. at 1-2 (Wis. Ct. App. Dec. 7,1993), Casteel attempted to relitigate the circuit court's sentencing discretion and further argued that he was entitled to resentencing based on a new factor. This court reaffirmed its determination that the circuit court properly exercised its discretion and rejected Casteel's claim that he was entitled to sentence modification based on a new factor. Id. at 4.

¶ 7. In State v. Casteel, Nos. 94-1091 and 94-1092, unpublished slip op. at 1 (Wis. Ct. App. July 28, 1994), we granted the State's motion for summary affirmance relying on State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994).' Escalona-Naranjo held that Wis. Stat. § 974.06(4) provides that all grounds for relief under § 974.06 must be raised in the petitioner's original, supplemental or amended motion. Grounds for relief, even constitutional claims, previously adjudicated, waived or not raised in a prior postconviction motion may not become the basis for a § 974.06 motion, unless the court ascertains that a "sufficient reason" exists for failure to allege or adequately raise the issue in the previous motion. Id.

¶ 8. In State v. Casteel, Nos. 97-0171 and 97-0172, unpublished slip op. at 1 (Wis. Ct. App. May 15, 1997), we dismissed the appeal based on Escalpna-Naranjo. In that case, Casteel attempted to argue that the criminal complaint was fatally defective, that the circuit court was without personal jurisdiction, and that the circuit court was biased. Id. at 2.

¶ 9. In State v. Casteel, Nos. 97-2888 and 97-2889, unpublished slip op. at 1 (Wis. Ct. App. Mar. 31, 1998), we again summarily affirmed an order denying postconviction relief based on Escalona-Naranjo.

¶ 10. Thereafter, in State v. Casteel, Nos. 98-1907 and 98-1908, unpublished slip op. at 1 (Wis. Ct. App. Feb. 9, 1999), we once again reviewed an order denying relief. Casteel asked the circuit court to reconsider its decision refusing to modify his sentences. The circuit court summarily rejected Casteel's arguments without comment on their merits. We affirmed, stating: "The trial court had no duty to entertain successive motions rearguing the same basic issues." Id. at 3 (citing Jones v. State, 70 Wis. 2d 62, 73, 233 N.W.2d 441 (1975)).

¶ 11. Subsequently, in State v. Casteel, Nos. 99-1436 and 99-1437, unpublished slip op. at 1 (Wis. Ct. App. Dec. 14, 1999), we summarily affirmed yet another denial of postconviction relief, relying on Escalona-Naranjo. We concluded that Casteel's motions and appeal were frivolous and cautioned Casteel that if he filed another frivolous motion and appeal, we would sanction him. Id. at 3.

¶ 12. Casteel has not prevailed on any of his previous motions in the circuit court as well as all appeals to this court. Now Casteel has filed three more motions to vacate his conviction and sentence. By the circuit court's count, these motions represented Casteel's thirteenth set of motions to the circuit court brought on the original robbery cases. The circuit court denied the motion relying on Escalona-Naranjo. The circuit court specifically observed: "[Casteel] argues at length about 'individual sovereignty' and 'the horrors of judicial treason.' I can discern no legally cognizable issue in these arguments." Casteel appeals the order denying his postconviction motions.

DISCUSSION

I. Postconviction Motion Arguments

¶ 13. On appeal, Casteel raises three arguments, two of which we previously have addressed. He provides no reasoning why he could not have raised these arguments in his direct appeal or first Wis. Stat. § 974.06 motion, as required by § 974.06(4). While persons have a constitutional right to access to the courts, that right is neither absolute nor unconditional. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997) (citing In re Green, 669 F.2d 779, 785 (D.C. Cir. 1981)). Section 974.06(4) forecloses review of his arguments. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

¶ 14. Casteel argues that the court has discretion to modify his sentence because of a mistake of law or for any other reason that justifies relief from the operation of judgment under Wis. Stat. § 806.07(l)(a) and (h). He supports his claim with the following arguments:

When a government goes bankrupt, it looses its sovereignty. It is established that in 1933(solar), the united States declared bankruptcy, as expressed in Roosevelt's executive Order 6073, 6102, 6260, House Joint Resolution 192 of June 1933, confirmed in Perry -v- U.S., 294 US 330, 381, 79 L.Ed. 912, as well as 31 USC § 5112, 5119 and 12 USC § 95a.
With the Erie -v- Tompkins case of 1938 the Supreme Court confirmed their success; We are now in an international private commercial jurisdiction in coloarable admiralty-maritime under the Law Merchants (as indicated by gold fringe around the America flag). We have been conned and betrayed out of our sovereignty, rights, property, freedom, common law, Article III courts, and Republic. The Bill of Rights has been statutized into "civil rights" in commence.
The government be becoming a corporator, [see 22 USC § 286(e)] lays down its sovereignty and took on that of a private citizen. It can exercise no power which is not derived from the corporate charter, [see, The bank of the United States -v- Planters Bank of Geogia, 6 L.Ed (9 Wheat) 244, US -v- Burr, 309 US 242]. The real party of interest is not the de jure "United States of America" or "State," but the Bank and "The Fund." [22 USC § 286 et seq.].

¶ 15. We have twice previously concluded that the court had personal and subject matter jurisdiction to convict and sentence Casteel. See Casteel, Nos. 85-2248-CR, 86-0605-CR, 92-0321 and 92-0322. A decision on a legal issue by an appellate court establishes the law of the case that must be followed in all subsequent proceedings in the case in both the circuit and appellate courts. State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151 (1986). Casteel has not rationally identified any other mistake in law or any reason that justifies relief from the conviction and sentence. We therefore reject this argument.

¶ 16. Casteel next contends that the special action parole release program, under Wis. Stat. § 304.02, created after he was sentenced, constituted a new factor justifying a sentence modification. He contends that parole eligibility is an integral part of sentencing and was a "significant factor entering into [Casteel's] decision to plea bargain and the judge's calculation of the sentence to be imposed." Flemming v. Oregon Bd. of Parole, 998 F.2d 721, 724 (Ore. 1993) (applying Weaver v. Graham, 450 U.S. 24, 32 (1981)).

¶ 17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

, ¶ 18. Casteel finally contends that his postconviction and appellate counsel abandoned him and he did not make a competent and intelligent waiver of his right to counsel. He argues without citing to authority that this caused the court to lose jurisdiction over him. Although the State concedes that Casteel has not previously raised ineffective assistance of appellate counsel, it argues that Casteel has waived his right to challenge his conviction and sentence because he failed to raise this argument in an earlier postconviction motion or appeal and he has failed to give a good reason why he could not have raised this argument sooner. We agree. We are bound by Wis. Stat. § 974.06(4) to dismiss his appeal.

II. Frivolous Appeal Sanctions

¶ 19. On five previous occasions, Casteel's appeals have been dismissed based on Wis. Stat. § 974.06(4) and Escalona-Naranjo. This case is dismissed on the same basis. Because we conclude that Casteel knows or should know that this, his eighth postconviction order appeal, is without any reasonable basis in law or equity and is not supported by a good faith argument for an extension, modification or reversal of existing law, we determine that this appeal is frivolous. See Wis. Stat. Rule 809.25(3)(c)2.

¶ 20. As indicated, in his last appeal, Casteel, Nos. 99-1436 and 99-1437, we noted that "Casteel's motions and this appeal are frivolous. He fails to understand that he does not have an unlimited right to file successive appeals for relief. ... In the event that Casteel files another frivolous motion and appeal, we are prepared to order appropriate sanctions." Id. at 3.

¶ 21. The State argues that the court has inherent power to fashion a remedy in this case, citing Minniecheske v. Griesbach, 161 Wis. 2d 743, 748, 468 N.W.2d 760 (Ct. App. 1991). It requests the following sanctions: (1) vacate the orders dated October 25, 2000, waiving the filing fees in this court; (2) assess attorney fees of $100 against Casteel to be paid from his inmate trust account; (3) enter an order instructing the Brown County clerk of circuit court to refuse to file (a) any subsequent motion or pleading in No. 85-CR-780 or 85-CR-1026 or (b) any habeas corpus or other request for postconviction relief attacking the judgments of conviction in these cases without leave of this court; and (4) enter an order that, to obtain the leave of this court, Casteel must identify the issues raised and demonstrate that the issue has not been previously raised in any prior request for postconviction relief, and explain why it could not have been raised in his eight prior requests for postconviction relief.

¶ 22. Casteel does not believe his appeal is frivolous and thus has not responded to the State's arguments for appropriate sanctions. He contends that Escalona-Naranjo does not bar his appeal because it is a " 'non sequitor' to suggest that this Court cannot deal with the lack of jurisdiction or loss of competence unless Casteel show[s] 'sufficient reason1 for not raising the issue earlier." He seeks to show that earlier noncriminal cases should overrule Escalona-Naranjo. We are without authority to overrule supreme court precedent. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 23. The purpose of the frivolous claims and appeals statute, Wis. Stat. Rule 809.25(3) is "to deter . . . litigants .. . from commencing or continuing frivolous actions and to punish those who do." Village of Tigerton, 211 Wis. 2d at 785. However, "[w]ithout an order prohibiting future filings related to the same issues, these statues would be virtually useless against a pro se party who cannot pay." Id. (quoting Min-niecheske, 161 Wis. 2d at 748). Frivolous actions hinder a court's ability to function efficiently and effectively and to fairly administer justice to litigants who have brought nonfrivolous actions. A court may exercise its inherent power to ensure that it "functions efficiently and effectively to provide the fair administration of justice," City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999), and to control its docket with economy of time and effort. Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987).

¶ 24. As quoted above, Wis. Stat. § 974.06(4) provides that a defendant must raise all grounds for relief under the original, supplemental or amended postcon-viction motion. The court will only review grounds that have not been so raised or waived if the defendant provides a sufficient reason for not raising or adequately raising them in the original, supplemental or amended motion. Casteel has failed to do this in six appeals.

¶ 25. Because Casteel is abusing the appellate process by repetitively litigating the same matters, no further filings will be accepted from him unless he submits by affidavit all of the following:

1. A copy of the circuit court's written decision and order he seeks to appeal,
2. A statement setting forth the specific grounds upon which this court can grant relief,
3. A statement showing how the issues sought to be raised differ from issues raised and previously adjudicated, and
4. A statement of why any new claims so raised are acceptable under Escalona-Naranjo, 185 Wis. 2d at 184-86.

¶ 26. Upon review of those documents, if this court determines that Casteel states no claim, defense or appeal upon which we may grant relief, we will refuse to accept the filing. Cf. Wis. Stat. § 814.29(l)(c); In re Davis, 878 F.2d 211, 212-13 (7th Cir. 1989) (threshold review of the merits is a sensible and constitutional means of dealing with a litigant intent on pressing frivolous litigation). If we cannot determine from the submitted documents whether the appeal has merit, we may require additional documents.

¶ 27. This order is drafted narrowly to strike a balance between Casteel's access to the courts, the taxpayers' right not to have frivolous litigation become an unwarranted drain on their resources and the public interest in maintaining the integrity of the judicial system. See Minniecheske, 161 Wis. 2d at 749.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 939.62(l)(c) provides:
      If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may he imposed.. . the maximum term of imprisonment prescribed by law for that crime may he increased as follows:
      A maximum term of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 10 years if the prior conviction was for a felony.

       The sentences for possession of a firearm as a felon are to be served concurrently with the bank robbery sentences.

       Casteel did not file a response to the motion.

       WISCONSIN Stat. § 974.06(4) provides:
      All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

       He also appears to argue that licensing lawyers violates the original Thirteenth Amendment to the United States Constitution by equating licensure with accepting a title of nobility or honor. The current Thirteenth Amendment does not resemble the one Casteel cites, nor is he correct that a lawyer's license to practice is granted by a foreign power.

        Weaver v. Graham., 450 U.S. 24 (1981), covered a different situation from the one presently before us. The Weaver Court determined that a statute that reduced the amount of "good-time" credits a previously convicted prisoner may earn by good behavior was an ex post facto law because it affected the length of the sentence.

       He also argues in this section that Wis. Stat. § 304.02(2) requires the department to promulgate rules for the special action parole release program including eligibility criteria and that its failure to do so "ipso facto" violates his due process rights guaranteed by the federal constitution. Casteel ignores Wis. AdmiN. Code § DOC 302.32, where the department's rules including eligibility criteria are found.
      We also reject Casteel's argument that the department has a conflict of interest because the State retirement system invests in Prison Realty Corporation and therefore the department earns more money if it sends more people to prison and hinders release. The department does not send people to prison. Further, whether the department improperly hindered his release is not before us. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

       Casteel's failure to respond to these proposed sanctions could be a sufficient basis to grant the State's requested relief. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 108, 279 N.W.2d 493 (Ct. App. 1979) (propositions are taken as confessed when a party does not refute them).

       WISCONSIN Stat. Rltle 809.25(3) provides:
      Frivolous appeals, (a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees and reasonable attorney fees under this section. A motion for costs, fees and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, the cross-respondent's brief.
      (c) In order to find an appeal or cross-appeal to be frivolous under par. (a) the court must find one or more of the following:
      1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
      2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

       Failing to file or filing an insufficient affidavit could be punishable with contempt. Filing a false one could result in prosecution for false swearing under Wis. Stat. § 946.32.

       We would have preferred to fashion a sanction that would spare the trial court from Casteel's further frivolous filings. We are unable, however, to fashion a sanction that would permit the clerk to refuse to accept Casteel's papers for filing without a judge first reviewing them. Indeed, we were concerned that if we applied the sanctions imposed in this decision to trial court filings, we would add to that court's burden. For example, if we required Casteel to certify that an issue had not been previously raised, the trial court would have to review the record to determine whether that was in fact the case. Under Escalona-Naranjo, however, the trial court need merely determine whether the new filing attacks the conviction or the sentence and whether there is proffered a good reason why the challenge was not made previously.


author: CANE C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. William Nielsen, Defendant-Appellant.
    Court of Appeals

      No. 00-3224-CR.

      Submitted on briefs May 21, 2001. —
    Decided July 31, 2001.

    2001 WI App 192
    (Also reported in 634 N.W.2d 325.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Waring R. Fincke of West Bend.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Cane, C.J., Hoover, RJ., and Peterson, J.

       Petition to review denied 10-23-01.

   CANE C.J.

¶ 1. William Nielsen appeals from a judgment convicting him of second-degree sexual assault and from an order denying his motion for post-conviction relief. Nielsen seeks a new trial based on ineffective assistance of counsel and on his contention that the trial court erroneously denied his objection to the State's use of two letters at trial. For the reasons discussed below, we disagree and affirm the judgment and order.

Statement of Facts

¶ 2. Nielsen was convicted of second-degree sexual assault of his former girlfriend, T.H. T.H. and Nielsen had a brief relationship during which they lived together in Wisconsin. When the relationship ended, Nielsen went to Chicago. Weeks later he returned to -Wisconsin to stay with T.H. During Nielsen's visit, he slept on the living room couch.

¶ 3. T.H. testified that late one night, Nielsen came home drunk, entered T.H.'s bedroom and forcibly had sexual intercourse with her. Nielsen denied that the incident occurred. Because T.H. did not immediately report the incident to law enforcement, no direct physical evidence of the assault was available. Instead, the primary evidence against Nielsen was T.H.'s testimony and the testimony of others who saw a bruise on her breast.

¶ 4. Nielsen's theory of defense was that T.H. fabricated the sexual assault because she was disappointed that they did not renew their romantic relationship when Nielsen returned to Wisconsin. Nielsen argued that T.H. learned of Nielsen's relationship with another woman, Marilize, to whom he is now married, and that T.H. lied to get back at Nielsen. A jury found Nielsen guilty and he was sentenced to seventy-eight months in prison.

¶ 5. Nielsen filed a motion for postconviction relief seeking a new trial on numerous grounds, including ineffective assistance of counsel, plain error and a new trial in the interest of justice. The trial court denied his motion and this appeal followed.

Issues

¶ 6. Nielsen argues that five specific trial errors entitle him to a new trial. First, he contends that the trial court erroneously allowed the State to use two letters to impeach a defense witness that were not previously disclosed to the defense. Nielsen also contends, in the alternative, that trial counsel was ineffective for failing to more fully investigate, discover the existence of the letters and strenuously object to their use at trial.

¶ 7. Next, Nielsen raises four unobjected-to errors in the context of an ineffective assistance of counsel claim: (1) counsel failed to make appropriate peremptory challenges; (2) counsel failed to object to the admission of testimony concerning Nielsen's post-Miranda statement to police; (3) counsel failed to object to testimony concerning Nielsen's alleged theft of T.H.'s compact discs (CDs) and necklace; and (4) counsel failed to object to the prosecutor's closing argument.

¶ 8. Finally, Nielsen argues that the same errors entitle him to a new trial under the "plain error" and "new trial in the interest of justice" doctrines. Although Nielsen provides several paragraphs of general information on these doctrines, he fails to specifically apply the doctrines to the alleged errors in the case. We decline to develop Nielsen's argument for him and, therefore, will not specifically address these doctrines with respect to each alleged error. See Estrada v. State, 228 Wis. 2d 459, 465 n.2, 596 N.W.2d 496 (Ct. App. 1999) (We need not consider arguments not developed.). However, we note generally that we are confident that the alleged errors do not constitute plain error and do not justify granting a new trial in the interest of justice.

Standards of Review

¶ 9. Nielsen's first argument is that the trial court erroneously exercised its discretion by allowing the State to cross-examine Nielsen and Marilize about two letters she wrote to him, despite the fact that the State had not disclosed the letters to the defense. Nielsen contends the State's action constituted a discovery abuse and that the trial court should not have allowed the State to use the letters.

¶ 10. Wisconsin Stat. § 971.23(7) requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless "good cause is shown for failure to comply." State v. Martinez, 166 Wis. 2d 250, 257, 479 N.W.2d 224 (Ct. App. 1991). Whether a party has satisfied its burden is a question of law that we review without giving deference to the trial court's conclusion. Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 811, 416 N.W.2d 906 (Ct. App. 1987).

¶ 11. Nielsen's remaining arguments concern numerous trial errors to which his counsel did not object. It is axiomatic that to preserve a proposed trial court error for review, trial counsel or the party must object in a timely fashion with specificity to allow the court and counsel to review the objection and correct any potential error. Absent such a procedure, the administrative rule of waiver may be invoked. In criminal cases, however, the normal procedure is to address the consequences of the rule "within the rubric of the ineffective assistance of counsel." State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). We follow that procedure here.

¶ 12. A defendant claiming ineffective assistance of counsel must prove both that his or her lawyer's representation was deficient and, as a result, that he or she suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 133 Wis. 2d 207, 216-17, 395 N.W.2d 176 (1986). If we conclude that the defendant has not proven one prong, we need not address the other. See Strickland, 466 U.S. at 697. To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Id. at 690. We "strongly presume" counsel has rendered adequate assistance. Id.

¶ 13. To demonstrate prejudice, 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. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In applying this principle, reviewing courts are instructed to consider the totality of the evidence before the trier of fact. State v. Johnson, 153 Wis. 2d 121, 129-30, 449 N.W.2d 845 (1990).

¶ 14. Whether a lawyer gives a defendant ineffective assistance is a mixed question of law and fact. Johnson, 133 Wis. 2d at 216. The trial court's findings of fact will be upheld unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Whether proof satisfies either the deficiency or the prejudice prong is a question of law that this court reviews without deference to the trial court's conclusions. See id.

Discussion

A. Prosecutor's use of letters not previously disclosed to the defense

¶ 15. Nielsen's first argument is that the trial court erroneously exercised its discretion by allowing the State to cross-examine Nielsen and Marilize about two letters she wrote to him before they were married. Neither letter had been provided to Nielsen in the discovery process.

¶ 16. The first letter was introduced when the State cross-examined Nielsen. Although Nielsen's counsel did not immediately object when the State first asked Nielsen about the letter, counsel objected when the State asked Nielsen to read the letter aloud. A sidebar conference was held. Thereafter, on the record, Nielsen's counsel objected "to the letter on the grounds that it wasn't previously provided to me by way of discovery."

¶ 17. The State responded that it did not know that the letter was going to be a relevant document until after Nielsen testified. The trial court overruled Nielsen's objection and Nielsen read the letter aloud. Marilize was also asked to read the letter aloud. The tone of the letter suggested that Marilize may have romantic feelings for Nielsen, arguably contradicting Nielsen's testimony that he and Marilize were not romantically involved before he began a relationship with T.H. Nielsen also testified that the letter had been in his personal belongings and that T.H. "[apparently . . . took it out of my personal stuff."

¶ 18. The second letter was introduced, without objection by Nielsen, when the State cross-examined Marilize. Marilize was asked to read parts of her letter, which was written days after the alleged sexual assault. The letter contradicted her previous testimony about her relationship and visits with Nielsen.

¶ 19. Nielsen argues that the State's use of the letters violated Wis. Stat. § 971.23(l)(e) and (g), and that his discovery demand was broad enough to include a request for the letters. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, that would convict the defendant beyond a reasonable doubt. See Wold v. State, 57 Wis. 2d 344, 356, 204 N.W.2d 482 (1973). Assuming, without deciding, that the State was required to disclose the letters before or at trial, we conclude that any trial court error in allowing use of the letters, and counsel's error in failing to object to the second letter, were harmless.

¶ 20. We are satisfied that the introduction of the two letters, only one of which was read in its entirety at trial, provided only minimal probative value in the context of the two-day trial. The letters do not conclusively prove that Nielsen and Marilize had a romantic relationship prior to his moving in with T.H. Moreover, the letters did not directly address the sexual assault, which was, of course, the primary issue in the case. Nielsen has failed to explain, and we do not see, how the introduction of the letters affected his defense, except to contradict his characterization of his relationship with Marilize, which was at best a collateral issue in the case.

¶ 21. Also, the letters were unlikely to have had a greater impact than the testimony of the witnesses who appeared in court, including Nielsen, Marilize, T.H., and several other witnesses who discussed the assault with T.H. before she reported the matter to the police. We see no reasonable possibility that the jury would have reached a different result absent the State's use of the letters.

¶ 22. Next, we briefly address Nielsen's alternative argument that trial counsel was ineffective for failing to seek a recess in order to review the documents before the examinations continued and to investigate the facts of the case sufficiently to discover the existence of the letters. We reject Nielsen's argument that counsel was deficient for not seeking a recess because Nielsen fails to explain how a recess would have changed the outcome of the testimony or the case.

¶ 23. We also reject Nielsen's contention that counsel deficiently investigated the facts of the case. Nielsen appears to argue that his counsel was deficient for failing to discover information readily available to Nielsen and Marilize: the fact that Marilize wrote letters to Nielsen during Nielsen's trips to Wisconsin. This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel. Also, because we have already concluded that the admission of the letters was harmless, it follows that counsel's failure to discover the letters so that counsel could prevent their admission was not deficient.

B. Peremptory strikes

¶ 24. Nielsen contends that trial counsel was ineffective for failing to use peremptory challenges to strike two jurors who he claims were "objectively harmful" to Nielsen. The United States and Wisconsin Constitutions guarantee a criminal defendant the right to a trial by an impartial jury. State v. Oswald, 2000 WI App 2, ¶ 16, 232 Wis. 2d 62, 606 N.W.2d 207; see also U.S. Const. amend. VI; Wis. Const. art. I, § 7; State v. Lindell, 2001 WI 108, ¶ 118, 629 N.W.2d 223 (the fundamental law is that an accused is entitled to be tried by an impartial jury). A juror who has expressed or formed any opinion, or is aware of any bias or prejudice in the case, should be removed from the panel. Oswald, 2000 WI App 2 at ¶ 16; see also Wis. Stat. § 805.08(1). Additionally, if a juror is not indifferent in the case, the juror shall be excused. Oswald, 2000 WI App 2 at ¶ 16; see also Wis. Stat. § 805.08(1).

¶ 25. Although these standards provide a criminal defendant with grounds to appeal the decision of a biased jury, they are inapplicable here because Nielsen does not assert that counsel should have moved to dismiss any specific jurors for cause, that the trial court should have dismissed any jurors for cause, or that the impaneled jury was biased. Rather, Nielsen takes issue with trial counsel's general strategy in selecting jurors. Nielsen explains:

Here, [the two prospective jurors] disclosed experiences and beliefs which a criminal defense lawyer trying a sexual assault case would not want at the table during jury deliberations. ... It is, therefore, incumbent upon the trial lawyer to be able to justify choosing those he struck over those he allowed to remain. This record does not support the choices counsel made.

¶ 26. We will not second guess trial counsel's selection of trial tactics or strategies in the face of alternatives that he or she has considered. See State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983). Moreover, we are aware of no legal authority holding counsel deficient where the impaneled jury was impartial, perhaps because where there is no allegation that any of the actual jurors were biased, it would be speculative for a court to conclude that the jury would have been fairer had trial counsel used peremptory strikes differently. See Erickson, 227 Wis. 2d at 774 (where there was no allegation that impaneled jury was biased, court examining whether defendant suffered actual prejudice from deficient number of peremptory strikes could do no better than to speculate on what would have been the result of defendant's trial had the trial court not erred; such speculation is insufficient to prove prejudice).

¶ 27. Similarly, in this case, we can do no better than speculate on what would have been the result if Nielsen's counsel had used his peremptory strikes differently. Because Nielsen cannot demonstrate that he was prejudiced by how counsel chose to use peremptory strikes, we conclude Nielsen was not denied the effective assistance of counsel. We need not discuss further whether Nielsen's counsel was deficient for using the peremptory strikes as he did. See Strickland, 466 U.S. at 697 (if we conclude that the defendant has not proven one prong of ineffective assistance of counsel test, we need not address the other).

C. Testimony concerning Nielsen's post-Miranda statement to police

¶ 28. Nielsen argues that his counsel was deficient for failing to object to the State's cross-examination of detective Michael Josephson. Nielsen called Josephson in his case-in-chief and asked him questions about Josephson's post-arrest, post- Miranda interview with Nielsen. Nielsen contends that the State's questions on cross-examination constituted a violation of his right to remain silent. We disagree and, therefore, conclude that counsel's failure to object was not deficient performance.

¶ 29. Nielsen asked Josephson, Nielsen's first witness, the following questions on direct examination:

[Nielsen's Counsel]: It's my understanding that you met with Mr. Nielsen with regard to the investigation?
[J osephson]: Yes.
[Nielsen's Counsel]: It's also my understanding that Mr. Nielsen denied that he was involved in the alleged assault?
[Josephson]: That's correct.
[Nielsen's Counsel]: He denied that on numerous occasions?
[Josephson]: That's correct.

On cross-examination, the State asked Josephson about the interview:

[State]: [Y]ou said on direct examination Mr. Nielsen denied that, doing the sexual assault?
[Josephson]: Yes.
[State]: Did he answer all of the questions that you asked him?
[Josephson]: No, he did not.
[State]: Can you estimate how many questions he declined to answer?
[Josephson]: Between three and five.
[State]: And do you recall what questions he declined to answer?
[Josephson]: I asked him if he used drugs and he kind of tried to skirt that question. I asked him if he believed that if anyone that did something like this deserved a second chance under any circumstances and he said I don't want to answer that because that's a Catch-22 question.
I asked him if it was possible that there would have been any bite marks on [T.H.'s] breast that would have matched his teeth impressions and he said, "Like right now"? I said ... "At any time," and he said, "No comment."

It is undisputed that the State did not comment on this testimony at any other time during the trial or closing argument.

¶ 30. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant's silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant's choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post -Miranda silence)).

¶ 31. If, however, the defendant opens the door to government questioning by defendant's own remarks about post-arrest behavior or by defense counsel's questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution's permissible use of post-arrest silence to "challenge the defendant's testimony as to [the defendant's] behavior following arrest"), the government may use the defendant's silence for the limited purpose of impeaching the defendant's testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant's silence is inconsistent with the defendant's claim of innocence. Id.

¶ 32. The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. United, States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant's right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.

¶ 33. First, we address the State's argument that Nielsen's argument is inapplicable because Nielsen did not remain silent. The State explains: "After being informed of his Miranda rights, Nielsen spoke to the officer - generally denying his guilt. This is the information [elicited on cross-examination]." Although we agree that Nielsen's responses to some of the questions are more accurately characterized as nonresponsive answers than silence, we conclude that Josephson's testimony that Nielsen "refused to answer" three to five questions and that Nielsen responded, "No comment" when asked about the bite marks constituted references to Nielsen's silence.

¶ 34. Therefore, the next issue is whether the State's questions and Josephson's answers constituted an impermissible comment on Nielsen's right to remain silent. Viewing the State's comments in context, we conclude that neither were they "manifestly intended" to be a comment on defendant's post-arrest silence (or, more accurately, on his refusal to answer certain questions), nor would the jury "naturally and necessarily" take them as such. See Mora, 845 F.2d at 235.

¶ 35. The State's purpose in asking Josephson about the completeness of Nielsen's answers was a direct response to Nielsen's counsel's leading questions that implied Nielsen had actively denied the sexual assault throughout his interview with Josephson. We conclude that Nielsen opened the door to government questioning by his counsel's questioning, and the State was permitted to clarify that Nielsen had not answered all questions, for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview. See Gant, 17 F.3d at 941. Additionally, we conclude that the State did not, simply by asking the questions and eliciting Josephson's responses, argue that Nielsen's silence was inconsistent with his claim of innocence. See id. at 941-42.

¶ 36. We conclude that the State did not imper-missibly comment on Nielsen's post- Miranda silence. Because the State's questions were not improper, Nielsen's counsel was not deficient for failing to object to the State's questions.

D. Testimony concerning a missing necklace and CDs

¶ 37. Nielsen contends his trial counsel provided ineffective assistance with respect to evidence of a missing necklace and CDs by failing to file a motion in limine, object to its admission at trial, object to the State's argument at trial and seek a mistrial. We reject Nielsen's argument because we conclude counsel did not perform deficiently.

¶ 38. T.H. testified that after Nielsen left for Chicago the second time, $600 worth of CDs and a necklace were missing from her home. She said she never reported the missing items to the police because, "I was told that [Nielsen] was going to send the CDs back and also the necklace." However, she never got them back. Nielsen's testimony about the items was brief:

[State]: Did you take a necklace that belonged to [T.H.]?
[Nielsen]: With permission I took a necklace and CDs? [sic]
[State]: Did you -
[Nielsen]: I know I never did - this was on the date that I left for Chicago. What had happened - no I didn't.

¶ 39. In closing argument, the State briefly referred to T.H.'s and Nielsen's different testimony about the CDs and necklace. The State used the information to argue that T.H. had not fabricated the sexual assault, explaining that if T.H. had simply wanted to get Nielsen in trouble, she could have reported the theft of her property, rather than sexual assault. "If she wanted to get him in trouble, wouldn't that be the easiest to . . . talk about in court, rather than talking about somebody [sexually assaulting you]?"

¶ 40. Nielsen argues that evidence about the CDs and necklace is evidence of other bad acts that would not have been admitted if trial counsel had properly objected. Although the trial court chose to analyze whether the testimony was admissible as other bad acts evidence, we need not reach that issue. Even if the evidence was potentially objectionable, trial counsel provided undisputed testimony that it was his decision, based on trial strategy, not to oppose the introduction of the testimony.

¶ 41. Counsel testified that he was aware of T.H.'s allegation that Nielsen had taken some CDs and a necklace when he left her apartment. Counsel said that Nielsen told him that he had borrowed the items and had not actually stolen them. "In the event that he borrowed them, I did not see it as other-bad-acts or wrongful-acts evidence."

¶ 42. Counsel further testified that he thought the issue was relevant to the credibility of the parties, and that Nielsen had never conceded to counsel that he had stolen the items. "I don't think it was an open issue from his perspective. He said he did not steal the items." Counsel agreed that his strategy had been to "attack the credibility of the complainant and, in effect, to raise a reasonable doubt about her veracity."

¶ 43. Furthermore, he agreed, it was his trial strategy to suggest that because T.H.'s relationship had ended badly, that explained why T.H. had fabricated allegations. In other words, the false allegations of theft were "part and parcel" of her false allegation of sexual assault. Counsel also testified that he did not see the issue of the CDs and necklace as "a big deal."

¶ 44. We will not second guess trial counsel's selection of trial tactics or strategies in the face of alternatives that he or she has considered. See State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161 (1983). Rather, we "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." State v. Pitsch, 124 Wis. 2d 628, 636, 369 N.W.2d 711 (1985).

¶ 45. Counsel explained that he considered the evidence and essentially decided to allow its introduction so that he could argue that T.H. was also making false allegations of theft. This defense was a reasonable trial strategy by defense counsel and did not constitute ineffective assistance of counsel. See Felton, 110 Wis. 2d at 502.

E. The State's closing argument

¶ 46. Nielsen complains that his trial counsel provided ineffective assistance by failing to object to two portions of the State's closing argument. Counsel is allowed considerable latitude in closing argument. See State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). The prosecutor may comment on the evidence, detail the evidence, argue from it to a conclusion and state that the evidence convinces him or her and should convince the jurors. See id. "The line between permissible and impermissible argument is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence." Id.

¶ 47. In this case, the prosecutor argued:

She says after she took a bath — that's a very telling point because I think if a person were making up this story, I think it would be difficult to come up and fabricate such a pointed detail as taking a bath, because the things really happened. The natural reaction of the victim, feeling defiled and dirty by the rapist, is to get up and clean herself and do that immediately and to cleanse his semen off her body and get every bit of him off her body and that is exactly how she reacted.
After she went to work on that date she ended up doing the same regimen she did on other days.. . . She didn't report it to the police right away and that's natural. Citizens out on the street - not citizen assault cases but citizens on the street, when questioned as to why didn't you report it right away - victims of horrible crimes, robberies, they're scared.

¶ 48. Nielsen argues that these comments were improper because there was no evidence to support the statements and the prosecutor was vouching for T.H.'s credibility. We disagree. T.H. testified that after the assault, she was afraid and humiliated. She said she felt "really dirty and ashamed." She said Nielsen returned to the living room and she waited until he was snoring before getting out of bed. She stated that she took a bath and left for work early.

¶ 49. T.H. also testified that she did not call the police the day of the assault "[b]ecause I was afraid of him and I was embarrassed and humiliated, ashamed, I didn't want anybody to know that this had happened to me."

¶ 50. We conclude that the prosecutor's comments were permissible characterizations of T.H.'s testimony. We also do not read the State's comments as introducing expert testimony on victims' reactions to crime. Rather, the State appealed to the jurors to use their common experience and general knowledge of the average person's reaction to frightening events.

¶ 51. Additionally, even if the comments were potentially objectionable, counsel was not deficient in failing to object. Counsel testified that it is part of his general trial strategy not to object to the State's closing argument "unless there's something substantially inappropriate in regards to counsel's arguments." He explained:

The jury's instructed as how to treat our arguments and that our arguments are not fact; that they are simply that, arguments of counsel. And I have concerns about a jury perceiving me, personally, as being somewhat obstructive and things of that nature, you know, objecting, especially in terms of the argument portions of the trial.

Counsel also agreed that objections have the undesirable effect of underscoring the objectionable comments being made, thereby adding emphasis to them.

¶ 52. Although counsel conceded that it did not specifically occur to him to object when the State argued about T.H. bathing and feeling scared, we are satisfied that counsel has provided a reasonable explanation for his general strategy on objections in the absence of "substantially inappropriate" statements by the State. Based on counsel's explanation that he rarely objects during closing argument and our own conclusion that the State's comments were not objectionable, we conclude that Nielsen has failed to prove that his counsel provided deficient representation during the State's closing argument.

By the Court. — Judgment and order affirmed.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       All statutory references are to the 1999-2000 version unless indicated otherwise.

       Thus, although Nielsen has styled many of his arguments in terms of the trial court's legal conclusions, we will not detail the trial court's specific conclusions.

       WISCONSIN Stat. § 971.23(1) provides in relevant part:
      (1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

        (d) A list of all witnesses and their addresses whom the district attorney intends to call at the trial. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
      (e) Any relevant written or recorded statements of a witness named on a list under par. (d)...
      (g) Any physical evidence that the district attorney intends to offer in evidence at the trial.

       We stress that Nielsen has not alleged that the jurors in question could have been struck for cause. In a recent supreme court decision, the court overruled prior precedent and held that even if a defendant is forced to use a peremptory strike to remove a juror who the trial court erroneously refused to strike for cause, the defendant is nonetheless not entitled to a new trial when the impaneled jury is impartial. See State v. Lindell, 2001 WI 108, ¶¶ 5, 113, 629 N.W.2d 223. If a new trial is not granted under those facts, it surely is not justified where the defendant is not forced to use any peremptory strikes to remove biased jurors and, instead, merely speculates that the result of the trial would have been different had the jury contained two different impartial jurors.

       Nielsen does not argue that counsel's performance was deficient for opening the door to the State's questions. This may reflect Nielsen's recognition of counsel's strategy to emphasize to the jury that Nielsen had, from the beginning, maintained his innocence.