State v. Wilkens
State v. Wilkens
Opinion of the Court
Antonio Orlando Wilkens (Wilkens) appeals from a judgment affirming a jury verdict finding him guilty of second-degree sexual assault in violation of sec. 940.225(2)(a), Stats., party to the crime of robbery, use of force, in violation of secs. 943.32(1) (a) and 939.05, Stats., false imprisonment under sec. 940.30, Stats., and from a denial of his postconviction motion.
Wilkens argues that because the preliminary hearing was closed to the public by the trial court without his - personal consent and without articulating its reason for closure, he was denied his right to a public trial. He further claims that the trial court erred in holding that the arrest was legal. Wilkens finally argues that if he loses on the first two issues because of waiver, then the trial court erred in determining that his trial counsel was effective.
In the early morning hours of May 12, 1988, Wil-kens dragged E.E. into a garage in an alley behind a home located on West Atkinson Avenue, in the city of Milwaukee. There he raped E.E., falsely imprisoned her and assisted Kenneth Gilbert (Gilbert) in stealing her leather jacket and money. Additional facts will be stated in the opinion as needed.
MS. RENSCHEN: Your Honor, at this time I would be making a request on behalf of the victim in this case. As you can read from the criminal complaint, she went through a very brutal assault and she has been traumatized by that, is very affected by that, and would appreciate not having to go through the details of describing the assault in front of unnecessary strangers. She was in the courtroom earlier watching some of the preliminary hearings and there were groups of students in the courtroom that she felt nervous about having to testify in front of a large group. At this time because of the emotional stress that that would be causing her, I would be asking you to close the courtroom pursuant to statute.
THE COURT: Any objections?
MR. COHEN: No objection.
MR. CHRISTON: No.
MR. COHEN: Let the record reflect Mr. Gilbert is in person before the Court.
When a defendant accepts counsel in the defense of his case, the decision to assert or waive certain constitu
We also note, however, that because Wilkens made no objection to the closure of the hearing, the court was not obligated to balance his interest in a public hearing, which was waived, against the interests of the victim in being protected from the embarrassment and emotional trauma involved in relating the details of a sexual assault in public.
Wilkens next argues that the trial court erred in holding that his arrest was legal. Wilkens' defense counsel had filed pretrial motions objecting to his stop and
The trial court then asked the counsel for both defendants about the motion addressing the legality of the arrest. Wilkens' trial counsel said that only the stop was in question. Later, when asked again about the arrest, Wilkens' codefendant's counsel advised the court that there would be no need for a hearing on the arrest. Wilkens' trial counsel did not respond to the question. Therefore, there was no need for the trial court to rule on the legality of the arrest. Wilkens raised this issue in his postconviction motion and the trial court (a different trial judge) denied it, holding that the victim's identification of Wilkens was the necessary probable cause for his arrest.
On appeal, Wilkens claims that the one hour to one hour and twenty minutes between his being stopped and formally being placed under arrest turned the stop into an arrest for which there was no probable cause. The State argues that at the pretrial suppression hearing, when Wilkens' trial counsel advised the suppression hearing judge that he was contesting only the stop and not the arrest, the issue was waived.
Wilkens' attorney's deliberate decision not to pursue a previously filed motion to suppress due to an illegal arrest is a waiver binding on Wilkens.
Lastly, Wilkens claims that if the above issue was waived by trial counsel, he was then ineffective for failure to object to the closure of the preliminary hearing and in not pursuing his motion concerning the constitutionality of the arrest.
There is a two-part test for ineffective counsel. The defendant must first show that the trial counsel was ineffective and secondly, he must show that such deficiency prejudiced his defense,
We have noted above that in Wisconsin a defense counsel has the authority, without the defendant's approval, to accept or reject closure of a preliminary hearing.
As to trial counsel's abandonment of the illegal arrest motion, we hold that under the circumstances, this did not amount to ineffective counsel. For the stop of a person to pass constitutional muster as investigatory, the detention must be temporary and last no longer than is necessary to effect the purpose of the stop.
In this case, a number of police squads responded to a dispatch that a woman was dragged into a garage screaming. When the police arrived at the address given, they met a man who told them that the persons involved with the woman were in an automobile passing in front of that address. The police who arrived first on the scene immediately told other arriving officers to stop the passing vehicle. Those police officers followed the vehicle
While this was occurring, the officers first on the scene obtained a verbal statement from Reginald Parr (Parr), whose telephone call to the police was the catalyst for the investigation. Parr stated that he was in his bed at the rear of his home when he heard a woman screaming. When Parr looked out his rear bedroom window he saw a woman struggling with a man. He saw the woman being pulled into a garage in the alley behind his home. The alley was li’ghted. Parr also said he saw a light grey car. As he watched it, an occupant came out of the automobile and went into the garage that the first man had pulled the woman into. He saw the same man reappear and get into the car which left the scene. Parr said he then called the police. He saw the car return to the scene, the man in the garage got into it, and then it was driven to the end of the alley. At that time, Parr went to the front door of his home and met the police. He advised them that the occupants of the automobile passing in front of the home at that time were involved with the woman in the garage.
After obtaining this information, one of the police officers went in search of the woman. He found E.E. approximately two blocks away from the scene. At that time she was wandering, crying hysterically and was wearing only a pair of jeans. The officer returned her to the scene and he and his partner, after calming her down, interrogated her. She said that she had been robbed by two men and one of them had raped her. After the men left she could not find all of her clothes and she left the garage to seek help.
After receiving E.E.'s statement, the officers asked her to identify the garage, which she did. The officers
Under the circumstances of this case, Wilkens' detention for an hour to an hour and twenty minutes did not ripen into an illegal arrest. The police were diligent in their crime investigation by getting Parr's statement, finding the victim, E.E., calming her down, getting her statement of the events and establishing her identity of the garage and her clothes within the garage. They then immediately sent her to the scene of the arrest for possible identification. E.E.'s identification was immediate, and Wilkens and Gilbert were then arrested. This arrest was reasonable under the totality of the circumstances in this case. Thus, counsel was not ineffective in not attacking the arrest. Again, we need not address the second part of the test.
By the Court. — Judgment and order affirmed.
Section 970.03(4), Stats., reads as follows:
If the defendant is accused of a crime under s. 940.225, 948.02, 948.05 or 948.06, the judge shall, at the request of the complaining witness, exclude from the hearing all persons not officers of the court, members of the witness's or defendant's families or others deemed by the court to be supportive of them, or otherwise required to attend. The judge may exclude all such persons from the hearing in any case where the defendant is accused of a crime under s. 940.225, 948.02, 948.05 or 948.06 or a crime against chastity, morality or decency.
State v. Albright, 96 Wis. 2d 122, 132, 291 N.W.2d 487, 492, cert. denied, 449 U.S. 957 (1980).
State v. Dean, 67 Wis. 2d 513, 530-31, 227 N.W.2d 712, 720 (1975), cert. denied, 423 U.S. 1074 (1976).
Thiesen v. State, 86 Wis. 2d 562, 564-65, 273 N.W.2d 314, 316 (1979).
Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Thiesen, 86 Wis. 2d at 565, 273 N.W.2d at 316.
See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986); State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 253-54, 414 N.W.2d 832, 838 (1987) (here the defendant made a proper objection).
392 U.S. 1 (1968).
See sec. 971.31(2), Stats; State v. Copening, 103 Wis. 2d 564, 570, 309 N.W.2d 850, 853 (Ct. App. 1981).
State v. Schumacher, 144 Wis. 2d 388, 407-09, 424 N.W.2d 672, 679-80 (1988).
M at 410, 424 N.W.2d at 680.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711, 714 (1985).
Strickland at 694; Pitsch, 124 Wis. 2d at 642, 369 N.W.2d at 718.
See Albright, 96 Wis. 2d at 132, 291 N.W.2d at 492.
Florida v. Royer, 460 U.S. 491, 500 (1983).
United States v. Place, 462 U.S. 696, 709 (1983).
United States v. Sharpe, 470 U.S. 675, 686 (1985).
Id.
United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).
Id. at 7 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
State v. Washington, 120 Wis. 2d 654, 662, 358 N.W.2d 304, 308 (Ct. App. 1984).
Concurring Opinion
(concurring). Although I concur in the majority opinion, I write separately to express my dismay at the apparent win-at-all-costs attitude displayed by both Wilkens' trial and appellate counsel.
In explaining why he believed, in retrospect, that he should have objected to the exclusion of the general public from the preliminary examination, Wilkens' trial counsel testified as follows:
A I suppose that because hearings sometimes are held in open court and people are there to*629 observe victims. Sometimes these witnesses who are victims would be, sometimes they have a tendency maybe to just — they might sometimes tighten up and they get a little more frightened and they may not tend to be as easy with their testimony, whether it is to the benefit of the defense or to the prosecution is something we have to be aware of.
Q So, your statement in saying that you think it might have helped is based not on this specific case but just in general that you think it might be tougher for a victim to have to testify in front of a big group of people than in front of a smaller group of people?
A That's right.
Wilkens' appellate counsel has embraced this theme on appeal, arguing that trial counsel's "actions deprived the defendant of his right to a public preliminary examination with its attendant pressure on the victim-witness
I recognize that one of the consequences of a public trial is the impression upon each witness of the solemnity of his or her oath to testify truthfully. See Waller v. Georgia, 467 U.S. 39, 46 (1984). In this regard, the public trial operates in a way similar to the face-to-face component of the right to confrontation — namely, it "enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person." Maryland v. Craig, 110 S. Ct. 3157, 3164 (1990). Nevertheless, just as the face-to-face component of confrontation will, at times, be subordinate to other significant issues of public policy, id., 110 S. Ct. at 3164-3166, so too will a criminal defendant's right to a public proceeding, Waller, 467 U.S. at 45; see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 n.2 (1986); Globe News
The criminal justice system must protect victims of crime from "undue emotional pressure or harassment" or "undue embarrassment and emotional trauma," and a defendant's right to a public proceeding may, accordingly, have to give way. State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 254, 414 N.W.2d 832, 838 (1987); accord Globe Newspaper Co., 457 U.S. at 607-610 (sexual assault victims under the age of eighteen).
As I have pointed out elsewhere:
Results made from the victimization study suggest that in the short term (within a year of the incident) victims of crime were significantly more depressed and more fearful than non-victims, victims of violent crime reported the highest level of depression and fear, and victims of multiple incidents of crime during one year reported higher levels of depression and fear than did those who reported only one crime incident or no crime. In the long term, the level of fear in victims continued to be higher than the level of fear in non-victims and the long-term effects of violence on fear of crime are more pronounced than are the long-term effects of experiencing property crime.
State v. Jones, 151 Wis. 2d 488, 497, 444 N.W.2d 760, 764 (Ct. App. 1989) (Fine, J., concurring) (quoting from 7 Criminal Justice Statistic Ass'n, Inc., The CJSA Forum 2 (May, 1989)). The criminal justice system must not exacerbate victims’ trauma. It also must not permit its processes to subvert the system's ultimate goal of truth and justice. In my view, it is highly improper to use the right to a public proceeding as a bludgeon with which to bully a fragile victim into either a fear-based refusal to testify or testimonial incoherence and inconsistency; not every tactic may be pursued in the quest for victory. "A criminal trial is not a 'game.' " Morris, 461 U.S. at 15.
The special needs of victims wracked by the terror of their ordeals are appropriately considered in other contexts as well. Thus, the United States Supreme Court has held that sparing a victim the trauma of having to testify at a new trial is a legitimate factor to be considered in deciding whether to reverse a conviction because of an alleged marginal violation of a defendant's rights. Morris v. Slappy, 461 U.S. 1, 14-15 (1983).
Section 970.03(4), Stats., provides:
If the defendant is accused of a crime under s. 940.225,948.02,948.05 or 948.06, the judge shall, at the request of the complaining witness, exclude from the hearing all persons not officers of the court, members of the witness's or defendant's families or others deemed by the court to be supportive of them, or otherwise required to attend. The judge may exclude all such persons from the hearing in any case where the defendant is accused of a crime under s. 940.225, 948.02, 948.05 or 948.06 or a crime against chastity, morality or decency.
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent, v. Antonio Orlando WILKENS, Defendant-Appellant
- Cited By
- 13 cases
- Status
- Published