*1 Wisconsin, Plaintiff-Appellant-Cross State
Respondent,† v. Appellant. Lee, Defendant-Respondent-Cross
Wandell Wisconsin, Plaintiff-Appellant-Cross State
Respondent,† v. Casey, Defendant-Respondent-Cross
Thomas
Appellant. Appeals Court of January No. 93-2546-CR. Submitted briefs 28, 1995. February 1995. Decided 351.) (Alsoreported N.W.2d in 531 granted. to review †Petition *3 respondent plaintiff-appellant-cross For Doyle, E. on the briefs James cause was submitted general attorney Freimuth, M. assistant and James attorney general. appellants defendants-respondents-cross
For the M. the briefs of James was submitted on cause Craig & Shellow, Shellow Alhee of Shellow and W. *4 Glynn, of Milwaukee. S.C. Wedemeyer, Schudson, JJ. P.J., Fine and
Before
263
appeals from
P.J. The State
WEDEMEYER,
the Wisconsin State Crime
non-final order that directs
analysis, requested
to conduct additional
Laboratories
alleged
cocaine
defendant,
each
base.1
Casey,2 each
Lee and Thomas
defendants, Wandell
denying
cross-appeal
from non-final orders
their
alleged
pro-
dismiss,
that the statute
motions to
which
delivery
scribing possession and
of cocaine is
claims that the trial court
unconstitutional. The State
erroneously
it
its discretion when ordered
exercised
perform
requested by
the tests
Lee and
Crime Lab to
Casey.
Casey claim that the statute is over-
police power
therefore,
and,
broad and is an abuse
denying
to dis-
the trial court erred in
their motions
erroneously
the trial court did not
miss. Because
ordering
the Crime Lab to
exercise its discretion
perform
we affirm the order that is
tests,
certain
appeal.
do not have
basis of the
Because
police power chal-
to assert a constitutional or
lenge
affirm the orders
circumstances,
in these
we also
cross-appeal.
that are the bases of the
1
voluntary
of its
The State filed a notice of
dismissal
appeal.
granting
voluntary
An
dismissal
order was issued
22,
February
opinion
on December
1994. This
was released on
28,
investigating
seemingly conflicting
1995. After
these
results,
22
this court discovered that the December
order was
inadvertently.
appeal
issued
Because the issue on
is one of
concern,
power
statewide
we invoked our inherent
to vacate the
discretionary authority
22
December
order and exercised our
deny
voluntary
motion
See State v.
State's
for
dismissal.
(Ct.
Thiel,
App. 1992); see
171 Wis. 2d
I. BACKGROUND possession Lee was with charged Wandell crime, deliver, intent to to a party base with cocaine 161.14(7)(a), 161.41(lm)(cm)l., to and contrary §§ 939.05, Casey charged 1991-92. Thomas was STATS., to delivery base, cocaine contrary with 161.14(7)(a) 161.41(l)(cm)l., 1991-92. and §§ Stats., on the Crime Lab infrared performed spectrometry The compared and the visually substances suspected of known cocaine spectrum with paradigm results analysis, analyst From this the lab concluded base. Casey base. Lee and that the substances were cocaine 165.79(1), filed motions to pursuant both § STATS., trial order the Crime Lab that court requesting Lee certain tests on substances. additional perform for purposes cases were consolidated Casey's and granted the motions. The trial court ruling these trial directed the Crime court Specifically, motions. library of certain to conduct a search computer Lab spec- for which match infrared data bases spectra The filed a the evidence. State for produced trum non-final order on the trial court's appeal petition issue, granted. which this court also motions dismiss filed against them, alleging charges pending 161.14(7)(a), 1991-92 is unconstitutional § STATS., power. an of police constitutes abuse its enactment motions, finding denied the trial court to assert constitu- requisite standing lacked the of the challenges and that the enactment statute tional court power. granted not an This police was abuse from these Casey's cross-appeal requests orders. non-final
II. DISCUSSION *6 Appeal A. erroneously that the trial court
The State claims 165.79(1), § STATS., when discretion under exercised its perform tests on the evi- it the Crime Lab ordered request Casey. The State relies of Lee and dence at the (1) it is error to order for its contention: on two bases of Lee and Lab to retest evidence on behalf the Crime very purpose for which it has for the same (2) already the tested; and it is error to order been procedures testing that it does Crime Lab to conduct normally employ. not 165.79(1), granting a STATS., indicates that
Section request perform tests that the Crime Lab defendant's discretionary determina- the defendant's behalf is a 165.79(1), Accordingly, § the standard tion. See STATS.3 erroneously the trial court exer- of review is whether find that the trial court did cised its discretion. We will erroneously discretion if "the trial court exercise its legal applied proper a record, examined the facts of using process, a rational reached a rea- standard, and, Pittman, See State v. 174 Wis. 2d sonable conclusion." 3 pertinent part: in The statute states Evidence, analyses from information and of evidence obtained law by privileged enforcement officers the laboratories is and not avail- persons able to other than law enforcement officers nor is the inspection defendant entitled to an of information and evidence by laboratory's submitted to the laboratories the state or of a find- concerning ings, laboratory personnel or to examine as witnesses same, trial, prior except to the extent that the same is used preliminary hearing. Upon request by of a defendant the state at a action, felony approved by presidingjudge, the laboratories analyses shall conduct of evidence on behalf of the defendant. denied, 114 S. Ct. 74, 79-80, 496 N.W.2d cert. 255, 268, (1993). the trial court The record demonstrates following relevant that the Crime facts: examined requested by performing capable the test Lee Lab is generally perform Casey; does not the Crime Lab matching computer com- test, but on occasion the the puter performed; are the test search functions way requested infra- is one that the spectra time evaluated; and the estimated red can be requested one and one- test is needed to conduct half hours. applied by included: the trial court
The standards (2) (1) analysis; ability to do the of the Crime Lab *7 analysis; performing the or other burdens of the costs (3) ability tests done the defendant to have the the (4) potential independently; of the test the value (5) extent to which the defendant; the and the results to presentation might at trial in the of evidence tests aid altogether. perhaps We the need for a trial or obviate appropriate factors for a trial that these are conclude grant deciding court to consider when whether 165.79(1), testing § request for under defendant's Stats. applying to the facts of this In these standards particular that Lee and case, the trial court concluded Casey's request testing granted. In reach- for should be (1) ing reasoned that: conclusion, the trial court clearly capable performing the the Crime Lab is (2) requested analysis; time the costs and estimated (3) relatively dispute as there is some low; burdens are laboratory per- independent could to whether another undisputed that the defendants form the test and it is pay indigent therefore, could not for the test- are and (4) analysis ing; potential uncertain, of the is the value showing made a sufficient but the defendants have testing may presentation of be critical to the such (5) testing may help to such be of vital case; their testing jury the court and the because the will allow the jury than to consider concrete results rather abstract challenges theory it considers the defendants' when spectrometry the infrared results. reject the State's contention that the trial court
We erroneously the exercised its discretion because requests "re-testing" perform- involve defendants' normally ing are not conducted. Lee and tests that requested per- that an identical test be have requested an additional test. The fact formed. Each has (identi- purpose requested the that the tests have same substance) already fying performed does as the test preclude granting request. hot the trial court from reject the contention that it is error to We also State's perform tests it does not nor- brder the Crime Lab mally The trial court considered this fact use. determining capable per- whether the Crime Lab is forming requested analysis. record capable per- the Crime is demonstrates Lab forming requested by and, the tests the defendants employ computer matching analysis. occasion, does statutory language preclude addition, In does not instructing the trial court from the Crime Lab to con- normally perform. it does not duct tests *8 foregoing, Based on the we conclude the trial court erroneously deciding its in did not exercise discretion grant Casey's requests Lee and for Crime Lab testing.4
4 argued they Casey Lee and also that have a constitutional right requested testing performed. to have the Because have we ' Cross-Appeal B. from non-final orders Casey cross-appeal
Lee and motions to dis- their motions to dismiss. The denying 161.14(7)(a), the contention that based on § miss were overbroad and its unconstitutionally 1991-92 is Stats., The an abuse of police power. enactment constitutes did not have court concluded that trial 161.14(7)(a) that is uncon- standing allege § proper The trial court also concluded overbroad. stitutionally not an abuse of that the enactment of the statute was do not have We defendants police power. agree challenge. a constitutional assert proper we affirm the trial court. Accordingly, if it A overbroad has unconstitutionally statute is or inhibiting speech the effect or potential chilling City the First Amendment. which is protected Wroten, Milwaukee v. 207, 225, 466 N.W.2d 160 Wis. 2d (1991). overbreadth is 861, gener 868 concept First Amendment. limited to cases ally involving see Salerno, United States v. 739, (1987); 481 U.S. 745 Salamone, Bachowski v. 397, 411, 139 2d 407 Wis. (1987). assert 533, 539 N.W.2d 161.14(7)(a), unconstitutionally 1991-92 is § STATS., cocaine base in because of the definition of overbroad to include: "any the statute. Cocaine base is defined which material, mixture or compound, preparation base] a stimu having [cocaine contains any quantity its including on the central nervous system, lant effect erroneously did not exer- already concluded that the trial court testing performed, we allowing to be cise its discretion argument. v. the constitutional See Gross need not address (1938) (only 296, 300, Hoffman, 227 277 N.W. Wis. addressed). dispositive issues need be *9 definition is Casey argue isomers."5 Lee and that illegal because it makes thousands iso- overbroad of cocaine base that have no harmful effect and mers Accordingly, serve medicinal actually may purposes. or possess Lee and contend that individuals who Casey for prosecuted possess- deliver such an isomer be may a controlled substance. delivering or ing context, Outside of the First Amendment a person to a statute be will may constitutionally applied whom not be heard to that statute on the challenge ground conceivably unconstitutionally that it be may applied others, City other situations before court. Wilson, 11, 19, Milwaukee v. 96 Wis. 2d 291 N.W.2d (1980). 452, 457-58 Lee and are not Casey charged with or delivering an isomer of cocaine base.6 possessing Therefore, the statute be may applied constitutionally Moreover, to Lee and Casey. Casey's challenge does not involve the First Amend rights protected by result, ment. As a do not Casey possess 161.14(7)(a), STATS., to assert that requisite standing § makeup An isomer is a substance with the same chemical Rasmussen, See Huser v. composition. but a different structural (1978) (citation 611 n.3, 267 285, 290 84 Wis. 2d N.W.2d n.3 omitted).
6Contrary implication, majority to the opinion dissent's preclude attempting prove does not Lee or from at trial possession the substance in their not cocaine was base. opinion charged This holds that because were possession delivery base, they with of cocaine do not have challenge constitutionality of the statute as possibly applied persons might, theoretically, charged who be possessing under the statute with substance is not cocaine base. unconstitutionally overbroad, and we affirm
1991-92 is *10 of the court.7 the order trial Casey also claim that the broad definition
Lee and
power
police
of
an abuse
of cocaine base demonstrates
possession
the
and sale
it criminalizes
because
legitimate inter-
the
has no
substances
state
harmless
reject
argument
prohibiting.
because
est in
We
standing
proper
it. Lee
has
assert
neither defendant
charged
possession
Casey
of a
with
or sale
were not
Casey
Accordingly,
not
do
harmless substance.
standing to assert
the broad definition
have
police power.
statute constitutes an abuse
within the
denying
trial
order
sum,
In
affirm the
court's
we
Casey's
to dismiss.
motions
By the
affirmed.
Court.—Orders
dissenting
(concurring
part;
in
in
SCHUDSON, J.
Casey
Concluding
part).
have
not
that Lee and
do
standing,
majority
more
invoke
has done little
than
principles
standing
at issue.
that are not
well-settled
acknowledge
majority
has failed
even
Thus, the
7
may
exception
the First Amendment
make an
Courts
v.
"extraordinary
circumstances." See Broadrick
requirement
also,
Clement,
v.
Oklahoma,
601,
(1973);
413
611
see
State
U.S.
(Ct.
1989).
287,
789,
The
297,
App.
N.W.2d
792
153 Wis. 2d
chal
extraordinary
case
an overbreadth
circumstances
allows
only
lenge
of the First Amendment
where
outside
context
particular
by
its out
parties
to a
suit stand
lose
"those
rights
yet
preserving
have no effective avenue of
their
come and
case is
Id. at
substantial to this court: presented statute, applied as to these
The cocaine base upon a rea- defendants, forecloses a defense based question the substances in sonable doubt whether or some other innocuous substance are cocaine base reason, formula. For that the same chemical with directly by are affected statute proves the state they for can be convicted whether other is cocaine base or some isomer the substance scopolamine. such as they have are
The defendants because directly overly affected broad definition *11 defending them from precludes cocaine base which may not have charge by showing this the substance ¿-cocaine The base, just but a harmless isomer. been definition of cocaine base makes it irrelevant scopolam- in fact possessed whether the defendants base, because both substances are ine or /-cocaine prohibited. to defend state that "intend they in the state's to challenging ability
these cases part by the substances were fact prove they possessed Indeed, they point forcefully Cocaine base." made that the trial court: before apparently
THE COURT: The state claims substance, or that it prove that it can that this trial, prove intends to at that this substance is base, relying any theory get cocaine isomer they they prove to the feel can jury. Apparently anything to the that is cocaine base exclusion might or sweat or hair— be deodorant horse [counsel
MR. SHELLOW for Lee Casey]: Ord-cocaine. any they isomer. If can
THE Or COURT: alleged, they simply they've trial as prove that at they They say base. didn't were allege this is cocaine Why your does client it's an isomer. going prove any standing to— have That's
MR. SHELLOW: question. the state you agree Do
THE COURT: prove to be able to expect the state expects you or rely on some isomer cocaine base and not that this is theory get jury? to the says that it will The state
MR. SHELLOW: and is not one this is cocaine base prove that regu- isomers or either either the other seven isomers. lar argue at trial youDo intend to
THE COURT: that, expert proved that their that the state hasn't of the it's one might just have established isomers? it, if the only will I do
MR.
Not
SHELLOW:
it out of the
prove
I'll
position,
state takes that
the state calls.
of the first chemist
mouth
incon-
taken
State, however,
apparently
has
on appeal.
the trial court and
before
positions
sistent
stated,
"The
the trial court
the prosecutor
Before
in this particu-
the substance
prove
state's required
I'm not
can do that.
base and we
lar case is cocaine
On
cocaine base."
other than
anything
about
talking
that "it is
however,
premature
the State writes
appeal,
*12
that the
the state to prove
case to require
in the present
base as
opposed
in
are Z-cocaine
question
substances
it premature?
of cocaine base." Is
other isomer
some
on which the State
very
but the
authorities
Perhaps,
ripe.
the time is
that, quite possibly,
suggest
relies
273
(2d
242
240,
790
In
F.2d
States v.
Puglisi,
United
Cir.)
(1986),
curiam),
(per
denied,
"Although government has the burden ... the it has every charged, element of the offense proving com- proving a term used in its no burden of possible no monly understood sense has other possibility until another the meaning least —at meaning by the is raised defense." emphasis quoting (ellipses added; at 242 in Puglisi-, Id. (1st F.2d 821 Cir. 725 States Francesco, United v. 1984)). possibility Here, raised the defense has the meaning. another (Md.
Similarly,
in Best v.
When all natu- drug cocaine recovered from traffickers is the leaf, there a . . . ral derivative of the coca arises any normal presumption substance shown testing to be cocaine is that natural derivative. raising production upon party is burden cast possibility generate genu- a the remote and exotic and when that is jury regard. ine in that issue If done, dissipated bubble presumption is —the cast rightfully upon the bursts —and the burden is prosecution negate possibility. such a added). (emphasis The Best Id. at court went jury generate genuine a hold "that to issue raising regard simply does mean theoretical requires possibility It such substance. some evi- that the isomer is actually present dence nontraditional added). (emphasis case." Id. in a given *13 mean, argues appeal, that as the State Does "that unless" Lee and claim Casey that and "[u]ntil cases are substances at issue their believe the they of cocaine base that isomer or isomers any specific substances," lack stand- they be controlled should not trial court that Casey's argument Or is Lee and ing? that prove the State's failure to they expose would "not one of either the other seven isomer substance was or either 1300 isomers" a sufficient regular representa- a possibility? tion more than theoretical raising with majority, appar- authorities are unclear and comments, "Anyone ently dispatch, merely flippant is an isomer that delivering with or charged possessing at that time." the statute challenge harmless can the issue at 271 n.7. That misses Majority op. Lee and by arguments presented evades the cogent the State. by Casey, of theory isomer Casey's
I
that
recognize
See
accept.
that courts will
theory
not be a
may
defense
of this
In the cross-appeal
Best,
Although standing challenge their support arguments defense, the issue their theory preclusion potential court, con- State, in the trial moot because may be in this the substance prove ceded that it is "required State If, however, case is cocaine base." particular to pur- and instead seeks position is not bound would then Lee and strategy, a different sue theory prosecution challenge have *14 Because their defense. theory would preclude identify or address accurately has failed majority I on the cross- issue, dissent respectfully appeal.