Preview:

COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
November 3, 1998
A party may file with the Supreme Court a
Marilyn L. Graves                                                                   petition  to  review  an  adverse  decision  by  the
Clerk, Court of Appeals                                                             Court of Appeals.  See § 808.10 and RULE 809.62,
of Wisconsin                                                                        STATS.
Nos.  98-0872-CR
98-1639-CR
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEFFREY L. WATSON,
DEFENDANT-APPELLANT.
APPEALS from judgments and an  order of  the circuit court for
Brown County:    WILLIAM M. ATKINSON and WILLIAM C. GRIESBACH,
Judges.  Affirmed.
Before Cane, C.J., Myse, P.J., and Hoover, J.
PER CURIUM.                                                                         Jeffrey  L.  Watson  appeals  a  judgment  of
conviction for armed robbery in violation of § 943.32(1) and (2), STATS.   Watson
also appeals a judgment of conviction for attempted armed robbery in violation of




Nos. 98-0872-CR
98-1639-CR
§§ 943.32(1)  and                                                                          (2)  and   939.32,  and  an  order  denying  his  motion  for
postconviction relief.    In regard to his conviction for armed robbery,  Watson
asserts that the trial court erred by denying his motion to suppress evidence seized
during an unlawful search of his residence.    Watson contends, concerning the
attempted armed robbery conviction, that the court erred by denying his motion
for postconviction relief because the prosecutor breached the plea agreement.   We
reject Watson’s arguments and affirm the judgments of conviction and the order
denying postconviction relief.
I.   BACKGROUND
A.  Armed Robbery
Watson was charged with armed robbery in violation of § 943.32(1)
and (2), STATS.   The charges stem from allegations that Watson, armed with a
knife,  robbed  a  SuperAmerica  store  in  Brown  County.    An  employee,  Chris
Fischer, claimed that Watson approached him to purchase a pack of gum.   After
operating the cash register, Fischer turned toward Watson, who came over the
counter at him with a knife in his right hand.   Watson told Fischer to get down on
his knees and grabbed the money from the cash register.     Watson then demanded
that Fischer take him to the back room where the safe was located.    Because
Fischer did not have access to the safe, Watson took the money out of the till and
demanded  that  Fischer  stay  in  the  back  room  until  he  left  the  premises.    A
surveillance camera tape shows the robber wearing a short, tight denim jacket and
athletic shoes with a white and black pattern on the bottom.
Robert Haglund and Thomas Molitor, detectives for the Green Bay
Police Department, were assigned to the robbery.    They found Watson’s wife,
Lynn Ann Watson, at her mother’s house and asked for consent to search her
2




Nos. 98-0872-CR
98-1639-CR
home for items Watson allegedly wore during the SuperAmerica robbery.   Lynn
and the officers drove separately to her residence.    Although she emphatically
stated  that  she  did  not  believe  her  husband  committed  these  crimes,  she
congenially agreed to the search and signed a consent to search her residence.
Lynn let the officers into her apartment.     Haglund and Molitor found faded blue
jeans and a pair of Adidas tennis shoes.   Lynn retrieved a green denim jacket for
the detectives.   These articles matched the clothing viewed on the videotape.
Watson brought a pretrial motion to suppress, arguing the evidence
was the fruit of a warrantless and unlawful search of his residence.   The State
claimed that Watson’s wife consented to the search.   Relying on the testimony of
Haglund and Molitor, the trial court denied Watson’s motion to suppress.   At trial,
a jury found Watson guilty of armed robbery.   He was sentenced to forty years’
imprisonment.    Watson  appeals  the  trial  court’s  order  denying  his  motion  to
suppress and judgment of conviction.
B.  Attempted Armed Robbery
Watson was also charged with attempted armed robbery in violation
of §§ 943.32(1) and (2) and 939.32, STATS.   The charges arise from allegations
that  Watson  attempted  to  rob  another  Brown  County  gas  station.    A  store
employee, Trevor Zadow, reported that Watson entered the store holding a long,
thin  kitchen  knife.    When  Watson  told  Zadow  to  turn  off  the  lights,  Zadow
informed Watson that he could not turn them off because they were hooked to the
alarm.   Watson was going to take the money out of the cash register when a car
pulled up to the store.   Zadow struggled with Watson, and Watson ran out the
door.
3




Nos. 98-0872-CR
98-1639-CR
Watson  entered a  plea  of  no  contest to the  charge  of  attempted
armed robbery in accordance with the following plea agreement:
My understanding of the plea agreement is that the State
would dismiss a theft charge that’s pending in case number
96-CF-1676.   In exchange my client would enter a plea to
attempted armed robbery.    The State would recommend
that the sentence on the attempted armed robbery would
run concurrent to a conviction for an armed robbery that
occurred last week in Judge Atkinson’s court.
Also,  I understand  that  the  sentence  on  this  attempted
armed  robbery,  according  to  the  State,  the  State  would
recommend that the sentence be no greater then the armed
robbery sentence that’s pending in Branch 8.   Additionally,
it’s my understanding that the State would not charge a
robbery charge from a Super America store on East Mason
Street that allegedly occurred two years ago.
At sentencing, the State recommended a sentence of eighteen years, concurrent to
the  sentence  Judge  Atkinson  imposed  for  the  armed  robbery.  The            State
emphasized that imposing a concurrent sentence was not an inutile gesture:
In this case, I don’t think it is a waste.   First of all, the
sentence that he received from Judge Atkinson is a very
long and substantial sentence, but above and beyond that,
that sentence was a result of a jury trial.   There was motion
practice  in  that  case.     I  don’t  think  any  errors  were
committed by Judge Atkinson or anyone else, but I think by
sentencing  him  in  a  concurrent  fashion,  you  give  the
community some  assurance  that  if  that  sentence  is  ever
reversed  and  vacated,  he  will  still  have  a  substantial
sentence to serve as a result of the sentence imposed by this
Court, and that’s why I’m asking you to impose a sentence
in a concurrent fashion.
Above and beyond that, I think the 40 years sentence that
would  be  consecutive  to  his  parole  would  give  him  an
opportunity to apply for parole in slightly more than ten
years.   I think that’s reasonable.   I think he should have that
opportunity  to  apply  for  parole.    Not  withstanding  his
horrible  record,  but  I  think                                                   -  I  asked  for  the   40-year
sentence, and I think it was appropriate, but I don’t think
this Court should sentence him to any type of a consecutive
sentence.   I think a concurrent sentence for the number that
4




Nos. 98-0872-CR
98-1639-CR
I’ve  suggested  would  be  completely  appropriate  and
consistent  with  all  of  the  sentencing  goals  that  I  have
mentioned.
The  State,  in  support  of  its  sentencing  recommendation,  emphasized  the
seriousness  of  Watson’s  offense,  the  impact  on  the  community,  his  in-depth
criminal history, compulsion to commit violent crimes and inability to rehabilitate
himself.
Watson filed a motion for postconviction relief claiming that the
State breached its plea agreement because its statements at the sentencing hearing
did not support the sentence it recommended.   He appeals the trial court’s denial
of his motion for postconviction relief.
II.   ANALYSIS
A.  Voluntary Consent
Watson first argues that the trial court erred by denying his motion
to suppress.   Specifically, he contends that his wife involuntarily consented to the
search of their residence.   Whether consent to a search was voluntary is an issue of
“constitutional fact.”    See State v. Phillips,  218 Wis.2d  180,  577 N.W.2d  794
(1998).
The standard of review by the appellate court of the trial
court’s  findings  of  evidentiary or  historical  facts  is  that
those findings will not be upset on appeal unless they are
contrary to the great weight and clear preponderance of the
evidence.                                                                               This  standard  of  review  does  not  apply,
however, to the trial court’s determination of constitutional
questions.                                                                              Instead,  the  appellate  court  independently
determines the questions of “constitutional” fact.
Id. at 190, 577 N.W.2d at 799 (quoted source omitted).
5




Nos. 98-0872-CR
98-1639-CR
We must first determine whether the trial court’s findings of fact are
contrary to the great weight and clear preponderance of the evidence.   The trial
court  relied  on  Haglund’s  and  Molitor’s  testimony  in  concluding  that  Lynn
Watson’s consent was voluntary.   The trial court held that, “I am satisfied by the
credible testimony of Officers Haglund and Molitor that the defendant’s wife at
the time, Lynn Watson, voluntarily executed Exhibit No.  1 to give consent to
search the premises ….”
Watson’s  challenge  to  the  search  and  seizure  rests  upon  the
following:   Lynn alleged that the officers threatened that if she would not give
consent, they would get a search warrant and beat down her door.    She also
contends that the officers became rude toward the end of the search and told her
they should take a picture of her residence and send it to social services so her kids
will get taken away.   Lynn further claims that Haglund was “snotty” and stated
that “I better wake up and realize what kind of husband I really married.”   She
asserts that she felt pressured and that she had to let the officers in her home or
they would get a search warrant and break down her door.      In many other
respects, her testimony corresponded with the officers’.
Both officers testified to the following facts.   They approached Lynn
at her mother’s home, fully informed her of the basic nature of their investigation,
and that Lynn voluntarily consented to the search of her home.   When the parties
arrived at the Watson residence, Lynn signed the voluntary consent form and
opened the door to let the officers into her apartment.   Lynn stated that she had no
problem with the officers taking the articles of clothing and even retrieved the
green denim jacket for them.   She was very cooperative and told the officers that if
they needed anything else she would be glad to cooperate.   The officers testified
that they did inform her that if she did not consent to the search they would apply
6




Nos. 98-0872-CR
98-1639-CR
for a search warrant.   They did not, however, threaten that if she did not consent
they would break down her door or call social services to view her messy house.
They testified that at no time did they become threatening or aggressive with
Lynn.    The officers additionally testified that they did not make the statement that,
“Do you realize what kind of a husband you married?”
The trial court found the officers’ testimony more credible.    See
State v. Nehls, 111 Wis.2d 594, 599, 331 N.W.2d 603, 605 (Ct. App. 1983).   We
will not disturb the trial court’s credibility finding when it heard the witnesses’
testimony and observed their demeanor and decided to believe the officers over
Lynn.   See id. Therefore, we conclude that the trial court’s findings of historical
fact were not against the great weight and clear preponderance of the evidence.
See id.
Next, after independently reviewing the historical facts, we conclude
that Lynn’s consent to search the Watson residence was voluntary.   The burden is
on the State to prove by clear and convincing evidence that Lynn’s consent was
voluntary.   See Phillips, 218 Wis.2d at 197-98, 577 N.W.2d at 802.
The test for voluntariness is whether consent to search
was  given  in  the  absence  of  duress  or  coercion,  either
express  or  implied.    We  make  this  determination  after
looking at  the  totality of  the  circumstances,  considering
both  the  circumstances  surrounding  the  consent  and  the
characteristics  of  the  defendant.                                                      No  single  criterion
controls our decision.
Id.                                                                                       (Quoted sources omitted.)
Looking at the totality of the circumstances, the evidence presented
evinces that the officers did not use any misrepresentations, deception or trickery
to convince Lynn to give her consent to search the apartment.   See id. at 198, 577
7




Nos. 98-0872-CR
98-1639-CR
N.W.2d at 802.   The officers testified that they fully informed her as to the charges
against  her  husband  and  the  reason  for  their  search.    Moreover,  there  is  no
evidence that the officers threatened, physically intimidated or punished Lynn.
See id. at 199, 577 N.W.2d at 803.   The officers testified that they did not become
coercive or aggressive.   They stressed that they did not threaten to knock down her
door, nor did they threaten to call social services.    Furthermore, the evidence
establishes  that  the  search  of  the  home  took  place  over  non-threatening,
cooperative conditions.   See id. at 200, 577 N.W.2d at 803.   Lynn let the officers
into the apartment.   She agreed to cooperate and informed them that if they needed
anything  she  would  be  willing  to  assist,  which  she  later  demonstrated  by
voluntarily retrieving the green denim jacket for the officers.    See Nehls,  111
Wis.2d at  599,  331 N.W.2d at  605-06  (a circumstance the court may consider
when trying to determine whether consent was voluntarily given is whether the
“consenter”  assisted  in  the  search).    Finally,  we  do  not  see  any  of  Lynn’s
characteristics,  such  as  age,  intelligence,  education,  physical  and  emotional
condition,  and  prior  experience  with police,  which would suggest  involuntary
consent.   See Phillips, 218 Wis.2d at 202, 577 N.W.2d at 804.
B.  Breach of Plea Agreement
Watson  claims  that  the  State  violated  the  spirit  of  the  plea
agreement  by  preceding  its  recommendation  of  a  concurrent  sentence  with  a
lengthy recitation of aggravating factors.   When the facts are undisputed, whether
the State’s conduct breached the plea agreement is a question of law that we
review de novo.    State v. Wills,  193 Wis.2d  273,  277,  533 N.W.2d  165,  166
(1995).
8




Nos. 98-0872-CR
98-1639-CR
A defendant has a constitutional right to enforce a negotiated plea
agreement.   State v. Smith, 207 Wis.2d 258, 271, 558 N.W.2d 379, 385 (1997).
“Although a defendant has no right to call upon the prosecution to perform while
the agreement is wholly executory, once the defendant has given up his bargaining
chip by pleading guilty, due process requires that the defendant’s expectations be
fulfilled.”   Id.   A plea agreement is breached when the prosecutor does not make
the  negotiated  sentencing  recommendation.    Id.  at                                   272,  558  N.W.2d  at  385.
Moreover,                                                                                 “the  state  may  not  accomplish   ‘through  indirect  means  what  it
promised  not to  do  directly,’  i.e.,  convey a  message  to the  trial  court that a
defendant’s  actions  warrant  a  more  severe  sentence  than  that  recommended.”
State v. Ferguson, 166 Wis.2d 317, 322, 479 N.W.2d 241, 243 (Ct. App. 1991)
(quoted source omitted).   There is no requirement, however, that the State give an
“enthusiastic recommendation” of the plea agreement.   Id. at 322 n.2, 479 N.W.2d
at 243 n.2.
At the sentencing hearing, the prosecutor presented the court with
the following aggravating factors to support its sentencing recommendation.   The
prosecutor stressed that:
[T]he crime for which Mr. Watson is to be sentenced is, of
course, a very serious crime, not withstanding that fact that
it  was  an  attempted  armed  robbery  as  opposed  to  a
completed armed robbery ….
I believe that this crime would have a significant impact
on Mr. Zadow ….
….
… the fact that he was injured, I think, really underscores
the  dangerousness  of  the  conduct.                                                     …  Mr.  Zadow  was
placed at great risk.
9




Nos. 98-0872-CR
98-1639-CR
The prosecutor further emphasized Watson’s compulsion and lack of deterrence in
committing these crimes,
To  me,  when  I  look  at  his  record  and  I  look  at  his
background, the fact that he got paroled from prison in a
year - I mean, it was a chance of a lifetime that was given
to him to return to his family, be with his children, to take
care of them.   And he just squandered that.   He was not
able to stay free from crime for even five months without
committing serious crimes.   Again, my sense is that these
crimes  are  almost  a  compulsion.                                                  The  result  of  a
compulsion, I should say.
….
We get back to the notion of deterrence, and three prison
sentences of five years a piece did not have any effect on
him.   I don’t know a sentence that could be imposed by this
Court is going to have much impact.
Rehabilitation, of course, is a very important factor for the
Court  to  consider.     Frankly,  I  think  he’s  had  many
opportunities  to  -  for  rehabilitation,  none  of  them  have
worked,  and  it’s  obvious  inasmuch  as  he’s  now  being
convicted  of                                                                        -  he’s  now  standing  before  you  to  be
convicted for an attempted armed robbery.   I don’t know
whether or not the prison sentence can help Mr. Watson.
…
Another  consideration  which  I  think  is  just  critical  is
protection of the public.    I think the public needs to be
protected from Mr. Watson.   He does not seem to be able to
stop committing violent crimes and these armed robberies
are, or attempted armed robberies, that background, that
situation always gives rise to people being injured and hurt,
regardless of whether a gun or knife is used.
A plea agreement does not estop the State from informing the court
of aggravating factors in support of a lengthy sentence.   Ferguson, 166 Wis.2d at
324,                                                                                 479  N.W.2d  at  244.                         “At  sentencing,  pertinent  factors  relating  to  the
defendant’s character  and behavioral pattern cannot be  ‘immunized by a plea
agreement between the defendant and the state.’”   Id. (Quoted source omitted.)
The primary factors the court must consider in sentencing are the nature of the
10




Nos. 98-0872-CR
98-1639-CR
crime, the character of the defendant, and the rights of the public.   Id. at 325, 479
N.W.2d at 245.   As long as the spirit of the plea agreement was not violated the
State could put before the court any information supporting its argument for an
eighteen-year prison term.   State v. Voss, 205 Wis.2d 586, 595, 556 N.W.2d 433,
436 (Ct. App. 1996).
Here, the State’s reference to aggravating factors before its sentence
recommendation was not a breach of the plea agreement, but merely to support its
eighteen-year sentence recommendation.   As in Ferguson, the prosecutor had the
“unenviable task” of convincing the sentencing court that Watson’s actions were
such  that  he  deserved  an  eighteen-year  sentence  but  that  it should be  served
concurrently with a forty-year sentence for an armed robbery at the SuperAmerica.
The trial court found that the prosecutor made his recommendation in earnest.1
Not only did he recommend a concurrent sentence, but he carefully explained to
the Court why it did not feel a concurrent sentence would be a “waste” due to
Watson’s past criminal history.   Thus, we conclude that the State did not breach
the plea agreement by presenting aggravating factors in support of its sentencing
recommendation.
By the Court.—Judgments and order affirmed.
Not recommended for publication in the official reports.
1  The  trial  court  observed,                                                                  “I’m  confident  that  Attorney  Luetscher  sincerely
recommended a concurrent sentence in this case.   I’m confident that he complied with the plea
agreement.”
11

Download 14117.pdf

Wisconsin Law