Criminal Law

In prosecution on drug conspiracy and firearm charges, Dist. Ct. did not err in denying defendants’ request to remove juror for cause, even though juror, who was retired police officer, stated, among other things, that he “probably would” be more inclined to believe police officer than any civilian witness, whom he knew nothing about. Dist. Ct. noted that juror promised to keep open mind when evaluating all witnesses’ testimonies, and that officer otherwise indicated that he would be fair. Ct. of Appeals, in affirming defendant’s convictions, held that Dist. Ct.’s assessment of juror’s honesty and ability to be fair-minded was entitled to deference. Fact that juror conceded that he would be inclined to give more weight to police officer’s testimony than to testimony of civilian witness whom he knew nothing about did not require different result, even though juror uttered said concession after he had indicated that he would be open-minded when evaluating all witnesses. Defendant, though, was entitled to new sentence hearing, where Dist. Ct. had failed to make determination as to what criminal conduct in conspiracy was reasonably foreseeable to defendant.

Record contained sufficient evidence to support defendant’s conviction on charge of attempted enticement of minor, where said charge arose out of police sting where officer posed as father of 10-year-old girl, and where: (1) officer generated on-line advertisement, where officer posed as father of said girl who was willing to have individuals have sex with said girl; (2) defendant responded to said advertisement and conducted extensive conversation with officer with respect to his desire to have sex with girl; (3) defendant agreed to bring specific candy as gift for said girl and agreed to come to specific location; and (4) defendant was arrested when he arrived at said location with specified candy in his car. Government could establish such offense, even though defendant deals exclusively through intermediary, where defendant manifests intent to engage in sexual activity with minor and takes step to influence minor. Here, government was successful in proving said offense, where defendant made his sexual desire for minor known to officer, and where defendant’s purchase of specified candy demonstrated that he wanted to use candy to help facilitate his sexual encounter with minor.

Dist. Ct. did not err in denying defendant’s habeas petition, arguing that prosecutor’s closing argument deprived him of fair trial, when prosecutor argued that acquittal on sexual assault charges would require jurors to believe that government witnesses (i.e. alleged victims of sexual assaults) were lying and stressed that there was no evidence of their motive to lie. Defendant argued that said argument improperly implied that he had burden to prove innocence, and that jurors with reasonable doubt about witnesses’ testimonies could still convict if they believed that witnesses were more credible than not. Under standards applicable to Antiterrorism and Effective Death Penalty Act, Supreme Court of Wisconsin could properly find that said statements by prosecutor were not improper, where said Court could reasonably conclude that prosecutor did no more than tell jury that its decision about witnesses’ credibility would, for practical purposes, decide case where, as here, defendant did not testify.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress warrantless seizure of firearm that was located in nearby jacket at time of defendant’s arrest. Record showed that defendant was handcuffed at time police discovered firearm in said jacket. While defendant argued that Dist. Ct. erred in finding that seizure was lawful as seizure incident to his arrest because he was handcuffed at time of search, and because in order for there to be lawful search incident to arrest, he must be “unsecured,” Dist. Ct. could properly find that jacket posed danger to arresting officers, where defendant, although cuffed, was standing next to jacket, and where defendant seemed agitated at time of arrest, and thus defendant could have lunged for jacket. As such, instant search of jacket was reasonable.