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COURT OF APPEALS
DECISION
DATED AND FILED
May 28, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Kendrick Jackson,
Defendant-Appellant.
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APPEAL
from a judgment and orders of the circuit court for Milwaukee County: WILLIAM
W. BRASH, III, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 WEDEMEYER, J. Kendrick Jackson appeals
from a judgment of conviction on two counts of first-degree sexual assault
while armed, contrary to Wis. Stat.
§ 940.225(1)(b) (2005-06)
and two counts of kidnapping/seize or confine without consent, contrary to Wis. Stat. § 940.31(1)(b). He also appeals from orders denying his
motion for post conviction relief.
¶2 Jackson
raises four instances of error: (1)
police entry into his residence was without voluntary consent; (2) probable
cause to arrest him did not exist; (3) police lacked authority to search Angela
Beckum’s automobile; and (4) the trial court erroneously exercised its
sentencing discretion. Because voluntary
consent was given to the police to enter Jackson’s
residence, because probable cause existed to arrest Jackson, because the search of Beckum’s
automobile was proper under the automobile exception to the warrant requirement
of the Fourth Amendment, and because the trial court properly exercised its
sentencing discretion, we affirm.
BACKGROUND
¶3 On December 22, 2005, and December 24, 2005, two separate
incidents of kidnapping and first-degree sexual assault occurred in the same
general locality of the City of Milwaukee’s
north side. Z’Taj D. was the victim in
the first incident while Tyeisha C. was the victim in the second incident. Both victims were accosted while walking on a
public street. A black male threatened
each victim with a weapon and forced them into a tan-described four-door
automobile. In the instance of Z’Taj,
she was taken to an unknown residence and was sexually assaulted in the
basement there. In the instance of
Tyeisha, the sexual assault occurred in the front seat of a tan
automobile. As part of the assault,
Tyeisha was forced to perform oral sex upon the assailant. Upon completion of the act of oral sex,
however, Tyeisha expectorated the ejaculate upon the floor of the automobile.
¶4 On December 27, 2005, Z’Taj informed police that she had seen
an automobile similar to the one involved in her sexual assault near the area
of 2nd and Locust Street. Later that same day, police on patrol in the
same general area, observed a similarly-described automobile parked in front of
the residence at 314 East Hadley
Street.
¶5 On December 30, 2005, Z’Taj reported to police that she saw
her assailant at a gas station located at West Locust Street and King Drive. She described the automobile that he was
driving as a four-door, tan Pontiac Bonneville, with Wisconsin license plate number 364-JMR. Later in the morning, Police Detective Vicki
Hall drove to the previously known Hadley
Street address in an unmarked squad, for
surveillance purposes. While there, she
observed a light brown Pontiac
parked in the same general location with the same license plate number given by
Z’Taj. She also observed an individual
who matched the description of the assailant provided by Z’Taj, leave the same
automobile and enter the residence at 312
East Hadley Street. Detective Hall then called for backup
assistance. In the meantime, police had
learned that the Pontiac
automobile belonged to one Angela Beckum.
When back-up assistance arrived, Detective Hall gained entry to the 312 East Hadley Street
residence, arrested Jackson, searched the
bedroom occupied by Beckum and Jackson,
searched the basement of the residence, and arranged to have the automobile
owned by Beckum seized and searched.
¶6 After a series of suppression motions were denied, Jackson pled guilty to
two counts of first-degree sexual assault while armed, and two counts of
kidnapping. He was sentenced on each
count of sexual assault to seventeen years to be served consecutively, with ten
years of initial incarceration and seven years of extended supervision. On each count of kidnapping, he was sentenced
to ten years concurrent with five years of initial incarceration and five years
of extended supervision. Jackson now appeals.
ANALYSIS
A. Voluntary Consent.
¶7 Jackson
first claims that Beckum did not voluntarily consent to the initial entry by
Detective Hall into her residence located at 312 East Hadley Street.
STANDARD OF REVIEW AND APPLICABLE LAW
¶8 “[A] warrantless search conducted pursuant to consent which
is ‘freely and voluntarily given’ does not violate the Fourth Amendment.” State v. Phillips, 218 Wis. 2d 180, 196, 577
N.W.2d 794 (1998). Verbal consent is not
required. Id. at 197. “[I]t may be in the form of words, gesture, or
conduct.” State v. Tomlinson, 2002
WI 91, ¶37, 254 Wis.
2d 502, 648 N.W.2d 367 (consent found when a girl who opened a door turned to
enter the house upon an officer’s request to enter, which could reasonably have
been interpreted as an invitation to follow her inside.). Whether a defendant consents to a warrantless
search is a fact determination which we shall uphold on appeal unless clearly
erroneous. Phillips, 218 Wis. 2d at 196-97; Tomlinson, 254 Wis. 2d 502, ¶36.
¶9 The voluntariness of a consent, however, is a question of
constitutional fact, the determination of which we review independently,
applying constitutional principles to the facts as found by the trial
court. Phillips, 218 Wis. 2d at 194-95. The test for voluntariness is whether the
consent to search was given in the absence of duress or coercion, either
expressed or implied. Id. at 197. In determining voluntariness, we look to the
totality of the circumstances, considering both the events surrounding the
consent and the characteristics of the individual whose consent is sought. Id.
at 198. No single criterion controls the
analysis. State v. Wallace, 2002 WI
App 61, ¶17, 251 Wis.
2d 625, 642 N.W.2d 549.
¶10 Among the factors to be considered in determining the
voluntariness of consent are:
[W]hether any
misrepresentation, deception or trickery was used to entice the defendant to
give consent; whether the defendant was threatened or physically intimidated;
the conditions at the time the request to search was made; the defendant’s
response to the agents’ request; the defendant’s general characteristics,
including age, intelligence, education, physical and emotional condition, and
prior experience with the police; and whether the agents informed the
individual that consent to search could be withheld.
State v. Bermudez, 221 Wis. 2d 338, 349, 585
N.W.2d 628 (Ct. App. 1998). The State,
however, is not required to demonstrate that the defendant knew he could refuse
consent. Phillips, 218 Wis. 2d at 203.
¶11 Jackson
argues that verbal consent was not established and that consent cannot be
inferred by body language and acquiescence.
He asserts that voluntary consent cannot be based upon
intimidation. The record refutes his
claim.
¶12 Here, there is no dispute that Beckum and Jackson were joint
lessees of the lower duplex residence at 312 East Hadley Street. When Detective Hall knocked on the front door
of the 312 East Hadley Street
address, it was Beckum who responded by opening the front door. In assessing the circumstances of Beckum’s
response to Detective Hall’s request to enter, the trial court found:
There are credibility issues here with regards to the
testimony that has been adduced. There
is no question that Detective Hall went to the door. That there was a knock. That there was a … discussion,
involving, I believe it’s Miss Beckum; is that correct, and [Detective] Hall at
the doorway.
Miss Beckum concedes that based on that original
discussion that she had initially opened the door, that she, in fact … opened
it further. That initially it was about
halfway open. That at some point in time
Mr. Jackson, at least from her recollection, became engaged in this
conversation. She opened the door
further. By her own acknowledgment, she
opened the door further. And it would appear
that she was providing for some kind of permissive entry.
¶13 These factual findings of non-verbal consent were further
supported by evidence that Beckum completely opened the front door while
backing up and never objecting to Detective Hall’s entry to the premises. Furthermore Beckum conceded she let Detective
Hall in because she thought she “just had some questions for us.”
¶14 In addition to the foregoing, the trial court took the
opportunity to review its earlier ruling on the consent issue. In doing so, it ruled as follows:
The Court did find
[yesterday] that based on the totality of the circumstances and everything that
the Court looked at with regards to this matter as well as weighing certain
credibility issues with regards to what transpired that permission was, in fact,
given to enter by Miss Beckum, that it wasn’t a mere acquiescence; that is,
opening the door at one point to about halfway open and then opening it even
further at some point, but also involved by Detective Hall’s representation an
oral exchange wherein she indicated that she could not remember exactly what
was said but based on what was said interpreted it to be permission both
physically and verbally to enter.
¶15 Thus, consistent with Phillips, 218 Wis.
2d at 197, and Tomlinson, 254 Wis.
2d 502, ¶37, Beckum’s actions gave Detective Hall reasonably-based, implicit
consent to enter the residence. The
trial court’s factual determination of non-verbal consent is not clearly
erroneous, particularly because the court found that Detective Hall was more
credible than Beckum.
¶16 In reviewing the voluntariness of the consent issue, the record
reflects that although Beckum was “upset” and felt “slightly intimidated” by Detective
Hall’s presence, she admitted Detective Hall never threatened her to gain entry. She never objected to Detective Hall’s entry
or attempted to prevent her entry. Nor
is there any evidence of “any misrepresentation, deception or trickery” that
was used to entice Beckum to give consent.
Further, there is no evidence that police deprived her of necessities,
prolonged the encounter to wear down her resistance, or employed any other
coercive means before Beckum consented to the entry. Phillips, 218 Wis. 2d 199-200. Thus, the non-verbal consent was given
voluntarily.
B. Probable Cause to Arrest.
¶17 Jackson
claims there was no probable cause to arrest him and therefore his motions to
suppress should have been granted. We
disagree.
STANDARD OF REVIEW AND APPLICABLE LAW
¶18 Our review of a suppression order is a two-step process. We shall uphold the trial court’s factual
findings of fact unless they are clearly erroneous, but the question of whether
the facts constitute probable cause is a question of constitutional fact that we
review independently. State
v. Sykes, 2005 WI 48, ¶12, 279 Wis. 2d 742, 695 N.W.2d 277.
¶19 Probable cause to arrest exists when the totality of the
circumstances within an officer’s knowledge at the time of the arrest would
lead a reasonable police officer to believe that the defendant probably
committed, or is committing a crime. Id., ¶18. The objective facts before the police officer
must only lead to the conclusion that guilt is more than a possibility; “but
the evidence need not reach the level of proof beyond a reasonable doubt or
even that guilt is more likely than not.”
State v. Secrist, 224 Wis.
2d 201, 212, 589 N.W.2d 387 (1999). “Whether
probable cause exists in a particular case must be judged by the facts of that
case.” Id. Probable cause is a “‘flexible, common-sense
measure of the plausibility of particular conclusions about human behavior.’” Id.
at 215 (citation omitted). Moreover, “[t]he
court is to consider the information available to the officer from the
standpoint of one versed in law enforcement, taking the officer’s training and
experience into account.” State
v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d 531, 671 N.W.2d 660.
¶20 An officer’s belief that the defendant probably committed a
crime may be predicated upon hearsay information emanating from a reliable and
credible source. State v. Koch, 175 Wis. 2d 684, 701, 499
N.W.2d 152 (1993). A citizen who
purports to be a victim of, or to have witnessed a crime is a reliable
informant even though his reliability has not theretofore been proved or
tested. State v. Williams, 2001
WI 21, ¶36, 241 Wis.
2d 631, 623 N.W.2d 106. Moreover,
in determining probable cause, police officers can rely on the collective
information possessed by the police agency prior to the arrest. State v. McAttee, 2001 WI App 262,
¶11, 248 Wis.
2d 865, 637 N.W.2d 774. In determining
whether probable cause exists, however, the trial court applies an objective
standard, and is not bound by the officer’s subjective assessment of probable
cause or motivation for making the arrest.
Kutz, 267 Wis.
2d 531, ¶12. Even if probable cause to
arrest exists, a warrantless entry into a home violates the Fourth Amendment,
absent exigent circumstances or consent.
State v. Smith, 131 Wis.
2d 220, 226-27, 388 N.W.2d 601 (1986).
¶21 Within days after her kidnapping and sexual assault, Z’Taj
informed police that she had observed the man who assaulted her, driving in his
vehicle. She provided police with a
description of the vehicle; i.e., a light brown, older model Pontiac with license plate number 364-JMR. Through official police sources Detective
Hall had learned that a similarly-described vehicle with the same license plate
number had been observed parked at 314
East Hadley Street. Upon investigating the site in an unmarked
squad car, Detective Hall observed the same vehicle. She also observed an individual leaving the
vehicle and entering 312 East
Hadley Street.
He was wearing a dark sweat suit and a “doo-rag,” the same type of
clothing that Z’Taj reported her assailant was wearing a short time before. Z’taj had on another occasion informed police
that her assailant had “bug eyes.” After
Beckum allowed Detective Hall into the residence, Detective Hall saw the male
individual whom she had seen enter the premises minutes before and also noticed
that this person’s eyes were a prominent feature of his face. Armed with this information, she placed Jackson under arrest.
¶22 With the state of this record, the trial court found probable cause
existed to arrest Jackson
based upon all the information that Detective Hall had received and
sequentially what she had observed at the 312 East Hadley Street address. Based on our review, we independently
conclude that this information together with Detective Hall’s personal
observations were objectively sufficient to convince a reasonable police
officer that Jackson probably committed the sexual assaults under
investigation. Thus, we reject Jackson’s claim that the trial court erred in
ruling that probable cause to arrest him did not exist.
C. Automobile Search.
¶23 Next, Jackson
claims that police lacked authority to search Beckum’s vehicle because they
lacked probable cause. We reject this
claim.
STANDARD OF REVIEW AND APPLICABLE LAW
¶24 Our standard of review for the search of motor vehicles is a
mixed question of law and fact, affording deference to the findings of fact of
the trial court but determining the question of constitutional fact
independently. We accept the trial court’s underlying findings of fact unless they are
clearly erroneous. State v. Eckert, 203 Wis.
2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996).
However, we independently determine whether a search or seizure passes
constitutional muster. See Id.
¶25 Under the automobile exception to the warrant requirement of
the Fourth Amendment, there is no separate exigency requirement and there is no
need to demonstrate that acquiring a warrant would be impractical. Issues concerning whether the police could
have obtained a warrant prior to a search are not relevant to the
analysis. State v. Marquardt, 2001
WI App 219, ¶¶29-31, 247 Wis.
2d 765, 635 N.W.2d 188. The automobile
exception permits warrantless searches of a vehicle if there is probable cause
to believe that evidence of a crime will be found inside. State v. Pallone, 2000 WI 77,
¶¶58-60, 236 Wis.
2d 162, 613 N.W.2d 568.
¶26 Jackson
argues that the automobile exception should not apply in the absence of the
State not demonstrating that it would be difficult to obtain a warrant. The record reflects that in each instance of
sexual assault, the identified car was used to perpetrate the alleged crime. In the instance of Z’Taj, the identified car
was used to forcibly convey her to the residence where she was assaulted. Subsequently, she observed her assailant
driving the same vehicle in which she was forcibly transported. Z’Taj knew it was the same car because she
had supplied police with a detailed description, which included its color,
make, model, and license plate number.
In the instance of Tyeisha, after she was forced to have oral sex with
her assailant, she spat his semen onto the floor of the identified
vehicle. Police tracked the location of
the vehicle to the East Hadley
Street address.
¶27 Under the calls set forth in Marquardt, 247 Wis. 2d
765, ¶¶32-42, and Pallone, 236 Wis. 2d 162, ¶¶28-30, this elucidation of facts
inexorably forces two conclusions: the
necessary probable cause existed to search the identified vehicle as the car
used not only to commit the crimes but also to contain evidence of the crimes. As the trial court astutely noted, the
identified vehicle “was [not only] used … to transport [the victims]
to and from the location of the … crime, [but it was also] the scene
of the crime.” Under our law the need to
obtain a warrant did not exist and the facts more than adequately provided
probable cause.
D. Sentencing.
¶28 Last, Jackson
claims the trial court erroneously exercised its sentencing discretion in three
respects: (1) it failed to consider
mitigating factors; (2) it failed to consider his drug treatment needs; and (3)
the consecutive sentences were excessive.
For reasons to be stated, we reject this final claim of error.
STANDARD OF REVIEW AND APPLICABLE LAW
¶29 When reviewing a trial court’s sentencing determination, we
apply an erroneous exercise of discretion standard. We commence our review with the presumption
that the trial court acted reasonably when imposing its sentence. In contrast, a defendant challenging a
sentence has the heavy burden to demonstrate that the sentencing court relied
on some unreasonable or unjustified basis in imposing the sentence. State v. Lechner, 217 Wis. 2d 392, 418, 576
N.W.2d 912 (1998). A sentence well
within limits of a maximum sentence is unlikely to be unduly harsh or unconscionable. State v. Scaccio, 2000 WI App 265,
¶18, 240 Wis.
2d 95, 622 N.W.2d 449.
¶30 There are three primary factors that the trial court must
consider at sentencing: the gravity of
the offense, the character of the offender, and the need to protect the
public. State v. Smith, 207 Wis. 2d 258, 281-82
n.14, 558 N.W.2d 379 (1997). The
sentencing court may consider other factors but it is not required to
specifically address all of the other factors of record, State v. Echols, 175 Wis. 2d 653, 683, 499
N.W.2d 631 (1993), and may base the sentence on any one of the three primary
factors. Furthermore, the sentencing
court has wide discretion in assigning various values to each of the relevant
factors. State v. Larsen, 141 Wis. 2d 412, 428, 415
N.W.2d 535 (Ct. App. 1987). Should the
sentencing court fail to explicate its reasons for the sentence imposed, we are
obliged by the rubric of independent review to examine the record to ascertain
whether in the exercise of proper discretion, the sentence imposed can be
sustained. McCleary v. State, 49 Wis. 2d 263, 282, 182
N.W.2d 512 (1971).
¶31 In the sentencing process, the sentencing court is not bound to
any recommendations including those in the pre-sentence report. State v. Johnson, 158 Wis. 2d 458, 464-65, 463
N.W.2d 352 (Ct. App. 1990). Consecutive
sentences are reasonable if the count involved different victims or when each
crime was a distinct instance of criminal behavior. The legislature has specifically permitted
trial courts to “stack” sentences by authorizing the court to impose as many
sentences as there are convictions. Wis. Stat. § 973.15(2)(a); State
v. Ramuta, 2003 WI App 80, ¶24, 261 Wis. 2d 784, 661 N.W.2d 483. “[W]hether to impose consecutive, as opposed
to concurrent, sentences is, like all other sentencing decisions, committed to
the trial court’s discretion.” State
v. Johnson, 178 Wis.
2d 42, 52, 503 N.W.2d 575 (Ct. App. 1993).
¶32 To support his first proffered basis for erroneous sentence
discretion, Jackson
asserts that mitigating factors were not factored into the court’s sentencing
formulation. Specifically, he claims the
court did not consider in its oral decision the factors of family support and
that he resides with children. We shall
address this specific claim of error after examining the sentencing methodology
used by the trial court in this case.
¶33 We first examine the application of the three required primary
sentencing factors. The obvious serious
nature of these assaultive incidents needs little explication. In reference to the sentencing matrix, the
court found that the very nature of the offenses were aggravating factors. The charged conduct took place in
circumstances evidencing threats, abduction, and restraints. It is not difficult to surmise from the
record that the emotionally terrorizing effects of these two incidents are
incalculable. Of particular note, is the
“at random” selection process of each assault.
To make matters worse, in reference to the December 24th incident is Jackson’s admission, as
characterized by the court, that he “wanted to do it again. And … did it.”
¶34 When examining Jackson’s
character, the trial court quite naturally had to consider his criminal
record. Although the record is not
altogether clear, the court took into account one misdemeanor and three felony
convictions (battery, receiving stolen property and theft). The court characterized his record as “not
stellar” but “at the same time not the worst record he had ever seen.” Common sense dictates that this character
information could not be used as a mitigating factor.
¶35 As part of the character evaluation, the court reviewed his
work record and noted that during 2003 and 2004, Jackson was employed at Quad Graphics, and
for part of 2005 he was working through temporary-help agencies. He was however, unemployed at the time of
these events. What value the trial court
assigned to his work ethic is uncertain, but it is obvious the court took it
into consideration.
¶36 Of some significance to the trial court was the sexual abuse Jackson experienced as a
youth, which reasonably led to his severe drug-abuse problem. The court did not equate his drug problem as
an excuse for his conduct, but did view his condition as a mitigating factor.
¶37 Jackson
chides the trial court for failing to consider two mitigating factors: family support and that he resides with
children. Jackson has fathered three children: two with Tenisha Bell and one with Keisha
Ellis. He has never lived with either
woman. Regardless, by his own admission,
Jackson
believes he is behind in child support payments in the amount of $40,000 to
$50,000. Reasonably, the court cannot be
faulted for giving little or no consideration to this alleged mitigating
factor.
¶38 The trial court commented on the glowing reports and letters it
received from Jackson’s family members and friends, but based upon the nature
of these offenses and the reasons Jackson gave for his conduct, concluded that
“something else was going on” that precipitated this type of conduct which
required corrective attention. Jackson
himself admitted he needed sex-offender treatment, mental health counseling,
and AODA assistance.
¶39 Thus, when reaching the point of considering the factor of
protecting the public, by reason of the circumstances and nature of these
criminal acts, the court concluded this factor to be the most important in the
sentencing equation. Because of his
impulsive behavior, as enhanced by drugs, the court reasoned that probation
would unduly depreciate the severity of the offenses. Furthermore, because of the several admitted
health problems that may have precipitated these, random, impulsive assaults,
an institutional setting was the most appropriate place to constructively
address these issues and thereby better protect the public. Moreover to accomplish this goal, the trial
court set specific terms and conditions of extended supervision.
¶40 The punishment and rehabilitative deterrent components were
clearly part and parcel of the trial court’s sentencing calculation. The trial court considered all of the primary
sentencing factors, and, having done so, was free to place emphasis on any of
the relevant factors. Because the record
amply supports the sentencing discretion exercised by the trial court, we
reject this claim of error.
¶41 Finally, Jackson claims the trial court imposed an excessive
sentence because it did not explain why it rejected the pre-sentence investigative
report recommending concurrent
sentencing as applied to the two counts of first-degree sexual assault, but
instead imposed consecutive
sentencing. Citing State v. Hall, 2002 WI
App 108, 255 Wis. 2d 662, 648 N.W.2d 41, Jackson argues, “[i]t is neither a
sufficient nor a sustained act of discretion for a trial court to acknowledge
the PSI but not to explain its departure from the recommendation or address its
conclusion.” We are not convinced.
¶42 The Hall decision can be easily differentiated from the sentencing
factors of this case. Hall involved a
304-year sentence, which exceeded the PSI recommendation by 200 years. Here, Jackson’s
thirty-four-year sentence was far less than the 200 year statutory
maximum. Thus, it was not unduly harsh
or disproportionate to the offense as to shock the public sentiment. In addition, the Hall decision was
primarily based on the fact that the trial court failed to explain its reasons
for the term of sentence. As described
by our court, it utilized “fill-in- the–blank” type of explanations for its
sentence. Here, as we distinguished Hall
in Ramuta,
261 Wis. 2d 784,
¶25, the trial court “explained its rationale at great length and with full and
careful exposition.” It acknowledged the
PSI recommendation for total concurrent sentencing. Nevertheless, because of Jackson’s repetitive, impulsive acts of
aggression as set forth earlier in its oral sentencing decision, the trial
court concluded that “consecutive time is necessary to protect the public from
further criminal activity.” Succinctly
put and in global terms, Jackson
has not sustained his burden to demonstrate that the trial court’s sentence was
unreasonable. Thus, we conclude the
trial court has not erroneously exercised its sentencing discretion.
By the Court.—Judgment and orders
affirmed.
Not
recommended for publication in the official reports.