PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
June 12,
2001
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
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.
No. 00-1846-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
State of
Wisconsin,
Plaintiff-Respondent,
v.
James E.
Multaler,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1. SCHUDSON, J.James E. Multaler appeals from the judgment of conviction
for twenty-eight counts of possession of child pornography, in violation of Wis. Stat.
§948.12 (1997-98),1 following
his "Alford no contest" pleas,2 see North Carolina v.
Alford, 400 U.S. 25 (1970), and from the order denying his motion for
postconviction relief. He argues that: (1)the application for a search warrant of his property
failed to establish probable cause that evidence related to four apparent murders, for which
he was a suspect, was then located there; (2)the twenty-eight counts of possession of child
pornography were multiplicitous; and (3)his sentence, the maximum consecutive, totaling
fifty-six years, was unduly harsh. We affirm.
I. BACKGROUND
¶2. The unsolved apparent murders of four females, whose bodies were found in
Milwaukee and Racine counties in 1974 and 1975, and the apprehension of Multaler for the
abduction of another female in 1975, provide the background leading to the search warrant at
issue in this case.
¶3. According to the affidavit of Racine Investigator John C. Hanrahan, filed on
May 18, 1998, in support of the application for a search warrant for Multaler's home
"and any buildings, garages or out-buildings and vehicles on the property," four
Milwaukee females between the ages of fifteen and twenty-one disappeared from January
1974 through May 1975.
¶4. C.F.'s body was found about five hours after her disappearance. The cause
of death was "strangulation, possibly ligature strangulation."
¶5. S.W.'s body was found in a river about one and one-half days after her
disappearance.3 Her sweater had
been displaced, revealing her breasts. She was missing her pendant necklace and one of her
sandals. The cause of death was ligature strangulation.
¶6. W.B.'s body was found in a cornfield about six weeks after her
disappearance. Her shirt had been displaced, revealing her breasts. Her Mickey Mouse
watch and a bracelet were missing. Due to "mummification" of her body, the
cause of death was not determined.
¶7. S.M.'s body was found in a ditch in Racine County five days after her
disappearance.4 Semen was in her
vagina. Many of her personal items-including her eyeglasses, an earring, a pendant
necklace, a hair brush, a bottle of perfume, and several forms of identification-were never
recovered. A ligature mark, possibly caused by a handcuff, was on her right wrist. Due to
the decomposition of her body, however, the cause of death was not determined.
¶8. In June 1975, D.W. was driving on a highway near the Milwaukee-Racine
county line when she heard an amplified voice, from a car behind her, claiming to be a state
police officer and ordering her to pull over. When she pulled over, she was confronted by
Multaler who handcuffed her and took her into his car, at gunpoint. Fortunately, however,
D.W. was able to escape and contact police, who subsequently arrested Multaler for
kidnapping her.
¶9. After the arrest, a copy of a newspaper article about the incident was sent to
Milwaukee County District Attorney E. Michael McCann with writing at the top stating:
"This man is the South Side Killer (7 Mile Rd.)[.] He has raped 36 girls." A
handwriting expert determined that the writing was Multaler's. After Multaler's arrest, the
succession of unsolved disappearances and strangulations stopped. Multaler thus became a
suspect in the four unsolved deaths.
¶10. According to Investigator Hanrahan's affidavit supporting the search
warrant application, the following facts were revealed during the 1975 investigation of
Multaler:
(1) One of Multaler's girlfriends stated that "before every sexual act, [he]
would place his fingers on her neck and apply pressure to her jugular veins[,] ... rendering
her unconscious." When asked whether she had ever seen Multaler "use or
possess a `rubber carriage tie-down'/bung[e]e cord," she said that she had and
described one with one of its hooks "pulled out and bent into the form of the letter
`L.'"5 She also stated that
Multaler "had kept an album containing pictures of females and newspaper articles
about missing and murdered females," and she identified an article about the discovery
of S.W.'s body as one that she possibly had seen in the album. Additional information
obtained from this girlfriend linked Multaler to three other mysterious deaths or unsolved
murders.
(2) Another of Multaler's girlfriends stated that "during sexual intercourse with
[him], it was his habit to choke her," sometimes "to the point of where she lost
consciousness."
(3) The woman Multaler subsequently married stated that "on several occasions
during sexual intercourse Multaler placed both his hands around her throat and choked
her."
¶11. In January 1976, Multaler was convicted of D.W.'s false imprisonment as
well as three other crimes related to the offense: operating a vehicle without the owner's
consent, endangering safety by conduct regardless of life, and carrying a concealed
weapon.
¶12. According to a February 1976 social services departmental report,
Multaler admitted being with W.B. on the day she disappeared. He provided specific
information about her footwear, thus correcting information that had appeared in the
missing-person report. He said that although he could not remember doing so, he felt that he
had killed her, explaining: "If she is dead I must have killed her. I had to kill her, I
don't recall."
¶13. In March 1976, Multaler was committed to the department of health and
social services for a presentence examination pursuant to Wis. Stat. §975.02
(1973).6 During that commitment,
he admitted that he had "always liked strangling-playacting-with every girl [he had]
known" and that "if the girl was conscious he could not get an erection unless a
struggle were involved." He said that he had been "engaging in rapes for the last
two years be[]cause he `couldn't get satisfaction' out of normal relationships with
women." One mental health professional diagnosed Multaler as having a "Severe
Antisocial Personality" and "Moderate Unspecified Sexual Deviation," and
another stated, among other things, that Multaler "has been consistently viewed as a
dangerous, unpredictable individual" whose "sexual habits are colored by a need
to dominate and hurt sexual partners."
¶14. In May 1976, Multaler was committed to the department of health and
social services for specialized sexual-deviancy treatment pursuant to Wis. Stat. §975.06
(1973). In 1978, he sent a request to a Milwaukee television station for copies of newspaper
articles concerning the four unsolved deaths. In 1982, the circuit court sentenced Multaler to
prison for a total of thirteen years, with credit for time served in confinement in a variety of
facilities since the 1975 arrest. Following his imprisonment for the crimes relating to D.W.,
he served three years in federal prison, beginning in 1983.
¶15. In 1988, Multaler's thirteen-year-old daughter stated that, for years,
Multaler had choked and sexually assaulted her. As of May 1998, police detectives still
were investigating the unsolved deaths of the four females, and Multaler remained under
suspicion.
¶16. In his affidavit supporting the search warrant application, Hanrahan also
described his research and specialized training related to serial killers. He then explained
that "based on his training and research," serial homicide offenders often:
take clothing, jewelry and other property
such as photo's [sic], identification and other personal items from their victims. These items
are used by the offender to relive and recapture the moment of the homicide event, where
often[]times the offender feels that he now possesses the victim. These items are used by the
offender to fuel his fantasies and confirm the victim possession until the fantasy is no longer
enough, such that he has to go out and find another victim.
... keep newspaper clippings about the death and subsequent police investigation of
his [sic] victims. These items also help the offender in his fantasies, and act as proof and
reminders of his act.
... keep written documentation such as diaries for the reasons detailed above.
... take photographs, as well as audio and video recordings of their victims.
... keep these items ... even under intense police investigation. The need to keep
these items as reminders and fantasy tools outweighs the risk of being caught by possessing
such incriminating evidence.
Hanrahan then stated that serial killers
"often[]times interject themselves into the investigation and[/]or taunt
investigators" such as Multaler had done in writing the note to District Attorney
McCann. He further provided information linking Multaler to the areas where the four
bodies had been found. Based on all this information, Hanrahan concluded that Multaler had
killed the four females.
¶17. Finally, Hanrahan's affidavit stated that for over twenty years, and
continuing to the time of the search warrant application, Multaler had resided at the address
targeted for the search, and that "it is reasonable and probable that Multaler's residence
contains evidence of these homicides." On May 18, 1998, based on Hanrahan's
application, Racine County Circuit Court Judge Stephen Simanek issued the search
warrant.
¶18. Executing the search warrant on May 19, 1998, the police did not discover
any of the evidence they had sought regarding the four deaths. They did, however, find
numerous videotapes, computer equipment, and computer diskettes-one diskette was labeled
"Child Pornography" and another was labeled "Child Pornography
II." On May 26, 1998, police obtained a warrant, from Milwaukee County Circuit
Court Commissioner Audrey Y. Brooks, to copy and search the contents of the
diskettes.7 The search revealed
seventy-nine photographic images of children engaging in sexually explicit conduct.
¶19. The State charged Multaler with seventy-nine counts of possession of child
pornography, each count corresponding to one of the images. According to the criminal
complaint, Multaler admitted that he had downloaded these images "for his own
use" and "for the possibility of resale or for the possibility of use for child and
adult pornography which he planned on producing."8
¶20. In a series of motions, Multaler sought suppression of the diskettes, arguing
that Hanrahan's affidavit in support of the application for the first search warrant did not
establish probable cause "to believe that the items specifically sought[,] which were last
seen in 1974 and 1975 on the victims prior to their death [sic][,] would be in the home ... in
May of 1998." He also sought a Franks/Mann
hearing,9 alleging that Investigator
Hanrahan provided misleading information by stating that Multaler "has resided at the
same residence with his wife and daughter for over twenty years." Multaler argued
that Hanrahan knew or should have known that he could not have lived at the same residence
for "over twenty years" because he was in and out of prison and Central State
Hospital during that time. The circuit court denied his motions for suppression and for a
hearing.10
¶21. Multaler then moved to dismiss the charges or, in the alternative, to
consolidate them, arguing that the seventy-nine counts were multiplicitous. He contended
that each of the two diskettes could constitute a single count or, at most, that
each of the 35 printed pages of images, rather than each image on each page,
could constitute a single count. (He also contended that seven additional images should be
eliminated from the counts charged "on the grounds that it is not obvious from looking
at them that they constitute people under 18 engaging in sexual activity.") The circuit
court never decided Multaler's multiplicity motion, however, because Multaler entered into
an agreement by which he pled to twenty-eight counts.11
II. DISCUSSION
A. Search Warrant12
¶22. Multaler first argues that the affidavit in support of the search warrant
application failed to establish probable cause to believe that evidence of the four apparent
murders was in his home because (1)it did not establish that he was "the person who
strangled the four victims," and (2)even if it did, the affidavit still did not establish that
he was "likely to have maintained possession of any such items for nearly twenty-four
years." We disagree.
¶23. Reiterating the standards for issuance of a search warrant, the supreme
court has explained:
A search warrant may only issue on the
basis of a finding of probable cause by a "neutral and detached magistrate."
Whether probable cause exists is determined by analyzing the "totality of the
circumstances."
The task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him [or her],
including the `veracity' and `basis of knowledge' of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found in a particular
place.
This court has stated that the warrant-issuing judge must be apprised of
"sufficient facts to excite an honest belief in a reasonable mind that the objects sought
are linked with the commission of a crime, and that the objects sought will be found in the
place to be searched." "The quantum of evidence necessary to support a finding
of probable cause for a search warrant is less than that required for a conviction or for
bindover following a preliminary examination." "Probable cause [is] not
susceptible of `stringently mechanical definitions.' What is required is more than a
possibility, but not a probability, that the conclusion is more likely than not. This court has
always stressed the reasonableness factor."
State v. DeSmidt, 155
Wis.2d 119, 131-32, 454 N.W.2d 780 (1990) (citations omitted; first brackets added).
¶24. Additionally, the supreme court has set the standards governing our review
of a challenge to the sufficiency of an application for a search warrant:
In reviewing whether probable cause
existed for the issuance of a search warrant, we are confined to the record that was before
the warrant-issuing judge. The person challenging the warrant bears the burden of
demonstrating that the evidence before the warrant-issuing judge was clearly insufficient.
Review of the warrant-issuing judge's finding of probable cause is not de novo.
Rather, great deference should be given to the warrant-issuing judge's determination.
`A grudging or negative attitude by reviewing courts toward warrants[] ... is
inconsistent both with the desire to encourage use of the warrant process by police officers
and with the recognition that once a warrant has been obtained, intrusion upon interests
protected by the Fourth Amendment is less severe than otherwise may be the case ... A
deferential standard of review is appropriate to further the Fourth Amendment's strong
preference for searches conducted pursuant to a warrant.
"[T]he duty of a reviewing court is simply to ensure that the magistrate had a
`substantial basis for ... conclud[ing]' that the probable cause existed."
"Although in a particular case it may not be easy to determine when an affidavit
demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in
this area should be largely determined by the preference to be accorded
warrants."
Id. at 132-33 (citations
omitted).
¶25. Multaler has not established that the information in Investigator Hanrahan's
affidavit was "clearly insufficient" to support the issuance of the search warrant.
Indeed, we conclude that the information, although certainly not typical of that supporting
most search warrant applications, provided solid support for the search of Multaler's
property.
¶26. First, the facts in Investigator Hanrahan's affidavit easily defeat Multaler's
challenge to the circuit court's probable cause determination that he had killed the four
females. Without revisiting all the details here, and having summarized the most salient
portions of the affidavit in the factual background of this opinion, we merely observe that the
affidavit carefully and comprehensively connected Multaler to the apparent murders. It
related evidence, both direct and circumstantial, that provided the circuit court with a
substantial basis for finding probable cause to believe that Multaler had committed the
apparent murders.13
¶27. Second, Investigator Hanrahan's research, expertise, and reasonable
inferences, carefully conveyed by his affidavit, provide substantial support for the circuit
court's probable cause determination that, notwithstanding the passage of many years
between the deaths and the search warrant, evidence of the apparent murders remained at
Multaler's residence.
¶28. As this court has explained, when evaluating whether information is so
stale that it cannot form the basis for a search warrant, timeliness is not determined by
counting the time "between the occurrence of the facts relied upon and the issuance of
the warrant." State v. Ehnert, 160 Wis.2d 464, 469, 466 N.W.2d
237 (Ct. App. 1991).
Instead, timeliness depends upon
the nature of the underlying circumstances and concepts. When the activity is of
a protracted and continuous nature, the passage of time diminishes in significance. Factors
like the nature of the criminal activity under investigation and the nature of
what is being sought have a bearing on where the line between stale and fresh
information should be drawn in a particular case.
Id. at 469-70 (citations
omitted; emphases added). Moreover, "if old information in a warrant affidavit
`contributes to an inference that probable cause exists at the time of the application [for a
warrant], its age is no taint.'" State v. Moley, 171 Wis.2d 207,
210, 490 N.W.2d 764 (Ct. App. 1992).
¶29. Under the unique circumstances of this case, all the "old
information"-including facts regarding the 1974-75 deaths, the 1975 abduction,
Multaler's sexual history and psychological profile, and his disclosures-contributed to the
logical inferences supporting probable cause for the search warrant. Tethered to Investigator
Hanrahan's research and expertise, the "old information" was not stale; it had
been revived by his fresh analysis of "the nature of the criminal activity" and the
nature of the evidence that, Hanrahan reasonably believed, remained at Multaler's
residence.14 See
Ehnert, 160 Wis.2d at 469-70. As the State argues:
[O]f critical importance[] is the nature of the acts and
evidence under consideration. Not because the phrase "serial killer"
creates shock and alarm, but because rationally, the unique nature of this pattern of crimes
makes it more likely that evidence of the crimes will be retained. The affidavit establishes
that serial killers are uniquely likely to have a strong psychological compulsion to keep
evidence of their crimes, even when they know they are under investigation. In fact, the
affidavit establishes that serial killers may unreasonably flirt with the risk of being detected,
as part of the nature of their unique criminal mentality.
¶30. We agree. Based on all the information in the
affidavit, and based on the logical links-both connecting the apparent murders to Multaler
and connecting Multaler's conduct to that of serial killers-Judge Simanek reached "a
practical, common-sense decision" that, "given all the circumstances set forth in
the affidavit," there was, at the very least, "a fair probability" that evidence
of the apparent murders would be found at Multaler's residence. See
DeSmidt, 155 Wis.2d at 131(quoting Illinois v. Gates, 462
U.S. 213, 238 (1983)).15
B. Multiplicity
¶31. Multaler next argues that the multiple counts for possession of child
pornography were multiplicitous and, therefore, that his conviction for twenty-eight counts
violates his double jeopardy rights. Specifically, he contends:
It was not the legislature's intent in
creating [Wis. Stat. §]948.12 ... that the allowable unit of prosecution be for each
image possessed; rather, like other contraband statutes, in order to charge a separate count
there must be a significant difference in time or a significant difference in the nature of the
conduct. Thus, since Multaler was found in possession of diskettes, without any significant
difference in time or in the nature of the conduct, the allowable unit of prosecution is
[two].16
(Footnote added.) Again, we
disagree.
¶32. The double jeopardy clauses of our federal and state constitutions protect
against multiple punishments for the same offense. State v. Derango,
2001 WI 89, ¶26, 236 Wis.2d 721, 613 N.W.2d 833. In Derango,
the supreme court recently reiterated the standards that guide this court's review of
multiplicity challenges. As relevant to Multaler's theory, the supreme court explained that
one of the two situations in which multiplicity challenges usually arise is
when a single course of conduct is
charged in multiple counts of the same statutory offense (the "continuous offense"
cases) ....
Multiplicity (and therefore double jeopardy) is implicated only to the extent of
preventing a court from imposing a greater penalty than the legislature intended. In other
words, because double jeopardy protection prohibits double punishment for the "same
offense," the focus of the inquiry is whether the "same offense" is actually
being punished twice, or whether the legislature indeed intended to establish separate
offenses subjecting an offender to separate, although cumulative, punishments for the same
act....
We have established a two-part test for analyzing multiplicity challenges. The first
part consists of an analysis under Blockburger v. United States, 284 U.S.
299, 304 ... (1932), to determine whether the offenses are identical in law and fact.... The
second part, which we reach if the offenses are not identical in law and fact, is an inquiry
into legislative intent.
The Blockburger test requires us to consider whether each of the
offenses in this case requires proof of an element or fact that the other does not. If, under
this test, the offenses are identical in law and fact, then charging both is multiplicitous and
therefore unconstitutional. If under the Blockburger test the offenses are
different in law or fact, a presumption arises that the legislature intended to permit
cumulative punishments for both offenses. This presumption can only be rebutted by clear
legislative intent to the contrary.
Derango, 2001 WI 89
at ¶¶27-30 (citations omitted; emphasis added). A challenge concerning the
proper unit of prosecution for criminal conduct presents a question of law subject to our
de novo review. See State v. Sauceda, 168 Wis.2d 486, 492,
485 N.W.2d 1 (1992).
¶33. Therefore, this court first applies the Blockburger test to
determine whether each of the offenses in this case requires proof of an element or fact that
the others do not. The State acknowledges that, quite obviously, the charges are identical in
law; each involves a violation of the same statute. See State v. Anderson,
219 Wis.2d 739, 747, 580 N.W.2d 329 (1998). Almost as obviously, the charges are
factually distinct; apparently each count refers to Multaler's possession of a different
"page of printed child pornography."17
¶34. Offenses are different "in fact" if they are separated by time, or
are significantly different in nature, or involve separate volitional acts. State v.
Davis, 171 Wis.2d 711, 717, 492 N.W.2d 174 (Ct. App. 1992). Separate
volitional acts occur when the offender has sufficient time between acts to reflect on his or
her actions and to recommit to the criminal conduct. Id. at 717-18.
"[O]ffenses are significantly different in nature if each requires `a new volitional
departure in the defendant's course of conduct.'" Anderson, 219
Wis.2d at 750. The fact that proof of one count may be, in many respects, the same as
proof of other counts does not necessarily render the counts multiplicitous. See
id. at 750-52; see also State v. Warren, 229 Wis.2d 172,
182-83, 599 N.W.2d 431 (Ct. App.) (holding that multiple counts of perjury for separate
statements in preliminary hearing testimony were not multiplicitous), review
denied, 228 Wis.2d 176, 602 N.W.2d 762 (1999).
¶35. Here, as the State correctly argues, Multaler, in retaining each
pornographic page, made a separate decision. Had the case been tried, the State would have
had to prove that Multaler not only knew that he possessed each page, but also that he knew
each page depicted sexually explicit conduct, and that he knew or reasonably should have
known that each page displayed a child under the age of eighteen years engaging in the
sexually explicit conduct. See Wis. Stat. §948.12.
¶36. As we have acknowledged, however, "multiple counts, even if
different in fact and therefore not violative of double jeopardy, may still be multiplicitous if
the legislature intended that multiple offenses ... be brought as a single count or as a single
`unit of prosecution.'" Warren, 229 Wis.2d at 184-85. Here,
however, Multaler has failed to rebut the presumption that the legislature intended to permit
multiple punishments for multiple offenses of possession of child pornography.
¶37. Multaler's multiplicity challenge presents a question of statutory
construction subject to our de novo review. See id. at 185.
Wisconsin Stat. §948.12 does not expressly state whether the legislature intended that
multiple offenses be prosecuted as a single count. Where a statute does not specify the
allowable unit of prosecution, we consider four factors to ascertain the legislature's intent:
"(1)the statutory language; (2)the legislative history and context; (3)the nature of the
proscribed conduct; and (4)the appropriateness of multiple punishment."
Warren, 229 Wis.2d at 185. We apply a "`common-sense' view of
the statute as a whole" to guide "our application of these four factors, and we
seek a result that is `reasonable and fair to offenders and society.'"
Id. at 186. Doing so here, we conclude that the legislature intended to
allow multiple punishments for multiple offenses of possession of child pornography.
¶38. First, focusing on the statutory language, Multaler maintains that "the
legislature chose to itemize each medium on which ... pornographic [material]
might be contained (i.e. film, photographic negative, etc.)" and, therefore, that it
plainly intended to prohibit "the possession of the medium containing the
images." Thus, he suggests, individual pornographic images contained on a diskette
are akin to individual frames of a "motion picture film" and, further, that if the
legislature had intended prosecution for possession of each image, it would have said
so.
¶39. Multaler is mistaken. His argument largely ignores the statutory language
that all but refutes his premise. The statute prohibits possession of "any ...
photograph ... or other pictorial reproduction ... of a child engaged in sexually explicit
conduct." Wis. Stat. §948.12 (emphasis added). Thus it allows for prosecution
based not only on the medium, but also on each image conveyed by the medium. See
State v. A.H., 211 Wis.2d 561, 567-68, 566 N.W.2d 858 (Ct. App. 1997)
("[T]he focus of the inquiry under [Wis. Stat. §948.12] is the content of the
photograph and how it was produced," not the medium of its storage.). Moreover, by
referring both to "any photograph" and "a
child," see §948.12 (emphases added), the statute establishes the
potential for prosecution for each image of each child engaged in sexually explicit conduct.
See State v. Hamilton, 146 Wis.2d 426, 438-41, 432 N.W.2d 108 (Ct.
App. 1988) (statute written in the singular conveys legislative intent to permit individual
count for each violation).
¶40. Second, in evaluating the legislative history and context, Multaler maintains
that we should view Wis. Stat. §948.12 as a "possession of contraband"
statute, not a sexual assault statute. He contends, therefore, that charges under
§948.12 should proceed like the single counts against those who, at one time, possess
several marijuana joints, rather than like the multiple counts against those who, within a
single period of time, sexually assault a victim in a number of different ways. We
disagree.
¶41. The note following the portion of the act creating Wis. Stat. §948.12
reflects the legislature's intent to permit multiple punishments for offenses that are different
in fact. The drafters referred to child pornography as "the `fruits' of child sexual
exploitation" and commented: "This prohibition against possession is intended to
supplement the restrictions in the child sexual exploitation statute and thereby more
effectively deter and penalize the sexual abuse of children than is possible under
current law." 1987 Wis. Act 332, §55 (note following content of §948.12)
(emphasis added).
¶42. Third, addressing the nature of the proscribed conduct, Multaler contends
that "[i]t is illogical to conclude that a person who possesses one pornographic
photograph is guilty and a person who possesses one magazine with twenty-five pornographic
pictures [is] twenty-five times more culpable." Although he comments that the
legislature eventually "may see fit to create varying grades of offense as it has done
with other contraband statutes," he otherwise fails to develop this theme. Accordingly,
while we could decline to consider Multaler's contention, see State v.
Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (appellate court
"may decline to review issues inadequately briefed"), we address it to expose
how his own admission defeats his premise.
¶43. Multaler admitted that he had downloaded many pornographic images with
the intention of possibly selling them. Thus, he necessarily chose to possess some but
perhaps not others he may have viewed, and he was able to decide how to separate and
disseminate them. Each pornographic image, when separated from the others, carried the
potential for commercial value. Thus, the nature of Multaler's proscribed conduct allowed
for the multiple counts.
¶44. Fourth, asserting that multiple punishments would not be appropriate,
Multaler reiterates several of his earlier arguments. But as the State responds: "What
he refuses to admit is what is obvious: the [l]egislature has created a means of graduated
penalties depending on the volume of child pornography possessed."
¶45. Because the offenses to which Multaler pled are different in fact, we must
presume that "the legislature intended to permit cumulative punishments."
Derango, 2001 WI 89 at ¶30. "This presumption can only be
rebutted by clear legislative intent to the contrary." Id. Multaler
has offered nothing to rebut the presumption. In fact, it is quite clear that the legislature
intended to preserve the potential for multiple punishments. Accordingly, this court
concludes that Multaler's convictions for twenty-eight counts of possession of child
pornography are not multiplicitous.
C. Sentencing
¶46. Finally, Multaler argues that his sentence is unduly harsh. He contends
that "it is obvious that the court took into account the suspicions that were cast by the
[S]tate throughout the case that [he] had strangled a number of women in the 1970s."
While acknowledging that the court "did not specifically state that it was considering
the suspicion that [he] was involved in prior murders," he asserts that "that is the
only possible explanation for the court's sentence." The record refutes his
claim.
¶47. At no time during Multaler's sentencing hearing did any of the
participants-the prosecutor, defense counsel, Multaler, his daughter, or the judge-refer in any
way to suspicions that Multaler had committed the four apparent murders. Further, in its
written decision denying Multaler's postconviction motion, the court that sentenced him
absolutely rejected his contention:
[Multaler] believes the only reasonable
explanation for such a lengthy sentence is the court's conclusion that he was involved in
some prior unsolved murders. The court completely rejects this contention and
unequivocally asserts for the record that such considerations did not enter into its sentencing
determination. The court based its sentence specifically on the nature of the
offense-exploitation of children in a very horrific and vile fashion; the defendant's prior
criminal history and sexual conduct; the defendant's mental health status and unpredictability;
his sexual fantasies about choking children or sexual partners; and his stated intent to
produce his own videotape of child pornography. Taking these factors into consideration, the
court determined that the need for community protection from this defendant was of
paramount importance. Given the egregious nature of the materials in Multaler's
possession, the particular character of the defendant, and the absolute
need for community protection from child pornography materials of this kind, the
sentence structure imposed is not unduly harsh or excessive.
(Record references omitted.)
¶48. Multaler has offered no argument suggesting any basis for this court to
reject the court's own account of the factors that influenced its sentencing determination.
See Jung v. State, 32 Wis.2d 541, 548, 145 N.W.2d 684 (1966)
(appellate court presumes that sentencing court acted reasonably). Thus, the record refutes
the factual premise on which Multaler bases his only challenge to the sentence.
By the Court.-Judgment and order affirmed.
Recommended for publication in the official reports.
¶49. FINE, J. (concurring). The dissent's analysis explains why if
a magistrate had refused to issue a search warrant that decision would have been upheld on
appeal. But our duty when reviewing a magistrate's decision to issue a search warrant is not
to search the record for reasons why that decision was in error, but, rather, to see if the
evidentiary material submitted to the magistrate could have reasonably persuaded a neutral
judicial officer to believe that probable cause existed that the specified evidence would be
found in the location to be searched. The chain of probable cause here is crafted of many
sturdy links: the reasonable suspicion that Multaler was the serial killer authorities thought
him to be; the practice of serial killer to keep-forever-mementos of their
butchery; and that the residence to be searched was a likely repository for those bloody
keepsakes. Accordingly, the magistrate acted well within his discretion in issuing the
warrant, and, therefore, we must affirm.
¶50. CURLEY, J. (dissenting).I respectfully dissent. Even giving
the warrant-issuing judge's decision "great deference," there was no
"substantial basis for ... concluding that the probable cause existed," as claimed
by the majority decision. "The ultimate test for issuance of a search warrant is
whether there is probable cause to believe that the objects sought are linked to the
commission of a crime and whether those objects are likely to be found in the place
designated in the search warrant." State v. Ehnert, 160 Wis.2d
464, 470, 466 N.W.2d 237 (1991) (citing Ritacca v. Kenosha County
Court, 91 Wis.2d 72, 77-78, 280 N.W.2d 751 (1979)).
¶51. Here, no magistrate or judge, acting reasonably, could have found that
probable cause existed to search the Arrow Street residence for objects allegedly taken from
four murder victims over twenty years ago. First, the search warrant was based entirely on
stale information and stale probable cause. No new evidence was uncovered. In fact, the
critical information linking Multaler to the murders was over twenty years old. Stale
probable cause, defined as "probable cause that would have justified a warrant at some
earlier moment that has already passed by the time the warrant is sought," cannot form
the basis for issuing a search warrant. State v. Moley, 171 Wis.2d 207,
490 N.W.2d 764 (1992). Here, any probable cause to support a search warrant which may
have existed at some earlier time was stale by the time the warrant was sought.
¶52. The majority correctly notes that the test for staleness is done on a
case-by-case basis. But here, because of the passage of over two decades, it was
unreasonable to conclude that the information was fresh and that the objects were likely to be
found in Multaler's house. The cases cited in the majority opinion, supporting the
conclusion that the search warrant's information was not stale, involved time lags between
the discovery of the crucial evidence and a search warrant request of less than a year. In
Ehnert, the search warrant was issued only thirty days after the
information came to light. Ehnert, 160 Wis.2d at 470. In
Moley, the search warrant was issued eleven months after an informant
gave police a tip, but in the interim, the police continued their investigation.
Moley, 171 Wis.2d at 213-14. Indeed, in Moley, this
court admitted that the information given to the officer eleven months before the search
warrant request was "old." Id. at 213. If eleven-month-old
information is "old," then the twenty-three-year-old information
relied upon here is positively "ancient." This court could find no case anywhere
permitting a search based on information that was twenty-three years old. To appreciate how
long twenty-three years is, consider the fact that the requesting officer, who claimed to be an
expert on serial killers, did not join the Racine Police Department until fourteen years after
the last murder was committed! Further, the majority sidesteps the requirement that
information be "fresh" by concluding that the stale information was
"revived by [the officer's] fresh analysis." This transformation of stale
information into fresh information capable of supporting a probable cause finding muddies
the case law touching on stale information and strains the strict time requirements for search
warrants set forth in §§968.12 and 968.15. According to the majority, a search
warrant can easily be issued or reissued whenever another law enforcement officer gives the
stale information a "fresh analysis."
¶53. Moreover, even though probable cause might have existed in the past to
search Multaler's residence because of a belief that he murdered four women and that his
actions in doing so placed him in the compulsive "serial killer" category, any
probable cause to search Multaler's house became stale over time. The fact that Multaler
was never charged with any of the murders, had been released from prison for some time,
and the murders did not resume, bodes against a probable cause determination twenty-three
years later that he is the murderer, much less that he is a "serial killer"
compelled to kill time after time. Suspicion alone cannot form the basis for a search
warrant.
¶54. Finally, the majority opinion, in approving the search warrant,
characterizes the officer's affidavit as being a "careful" one. I strongly disagree.
The affidavit contained at least one serious error and it failed to advise the judge of other
relevant and vital information that the officer surely must have known. First, the requesting
officer stated in the affidavit that, based upon police reports, he knew that Multaler had lived
at the residence for over twenty years. Incorrect. The officer had to have known that
Multaler spent approximately ten of the last twenty-odd years in prison, as the search warrant
made direct reference to his arrest. Also troubling is the fact that the Milwaukee Police
Department reports, relied upon by the officer, reflect that when Multaler was arrested for
the earlier offenses for which he was incarcerated, he did not live on Arrow Street; he lived
on North Buffum Street in Milwaukee. Further, even assuming Multaler once lived at the
Arrow Street address, the affidavit contained no proof that Multaler currently lived at the
Arrow Street address. The officer's affidavit stated only that he had recently checked the
registration of two cars parked at the Arrow Street address and he found they were registered
to Multaler's wife and daughter. Given the unsavory account of Multaler's alleged sexual
misconduct with his daughter in 1988, contained in the search warrant affidavit, it would
seem unlikely that either his wife or his daughter would still be living with Multaler in 1998.
Also, the officer stated in the affidavit that Multaler was convicted of
"kidnapping." Actually, Multaler was convicted of false imprisonment, operating
a vehicle without the owner's consent, endangering safety by conduct regardless of life, and
carrying a concealed weapon. These mistakes, omissions and inconsistencies show that the
officer's affidavit was not carefully crafted and the warrant-issuing judge should have
detected the inconsistencies and omissions in the affidavit.18 No probable cause existed here at the time of
the search warrant's issuance.
¶55. Although I am mindful that the search resulted in uncovering evidence of
Multaler's extensive child pornography collection, the harm done to the rights guaranteed by
the Fourth Amendment by legitimizing this search warrant is too great to ignore. Therefore,
I respectfully dissent.
1 Wisconsin Stat. §948.12 (1997-98) provided:
Possession of child pornography.
Whoever possesses any undeveloped film, photographic negative, photograph, motion
picture, videotape or other pictorial reproduction or audio recording of a child engaged in
sexually explicit conduct under all of the following circumstances is guilty of a Class E
felony:
(1)The person knows that he or she possesses the material.
(2)The person knows the character and content of the sexually explicit
conduct shown in the material.
(3)The person knows or reasonably should know that the child engaged in
sexually explicit conduct has not attained the age of 18
years.
2 In this case, Multaler stated each of his twenty-eight pleas as
"Alford no contest." With an Alford plea,
a defendant, while not admitting guilt, accepts that the evidence is sufficient for conviction
and authorizes the court to proceed as it would following a guilty plea. See North
Carolina v. Alford, 400 U.S. 25, 37 (1970).
3 S.W.'s purse was found along a railroad right-of-way about seven weeks after her
disappearance.
4 S.M.'s purse had been found the previous day in Milwaukee, under a railroad
overpass.
5 Her description matched a bungee cord that had been examined at the Wisconsin State
Crime Laboratory; hair tangled in the bungee cord was consistent with that of S.W., whose
purse had been found near it.
6 Wisconsin stat. §975.02 (1973) provided:
Discretionary commitment. If a
person is convicted of any sex crime other than those specified, the court may commit him to
the department [of health and social services] for such a presentence examination....
"Sex crime" as used in this section includes any crime except homicide or
attempted homicide if the court finds that the defendant was probably directly motivated by a
desire for sexual excitement in the commission of the crime
....
7 Additionally, on May 29, 1998, police requested a warrant to "copy, review, and
analyze all computer and computer-related items recovered pursuant to the search warrant
signed May 18, 1998"; Milwaukee County Circuit Court Commissioner Dennis R.
Cimpl issued the warrant.
8 According to the testimony of City of Milwaukee Police Detective James DeValkenaere,
offered at Multaler's sentencing hearing, Multaler stated
that he wanted to make his own child
pornography video involving his own sexual fetish, which involves unconscious girls who are
choked or drugged for sexual acts while unconscious, so his reasons for obtaining the child
porn was [sic] for research so that he could direct, produce, and film his own child
pornography focused toward ... his own sexual preference, choked and unconscious girls and
women, and also for sale.
9 In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the Supreme
Court held:
[W]here the defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if
the allegedly false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant's request. In the event that at
that hearing the allegation of perjury or reckless disregard is established by the defendant by
a preponderance of the evidence, and, with the affidavit's false material set to one side, the
affidavit's remaining content is insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
See also State v.
Mann, 123 Wis.2d 375, 384, 367 N.W.2d 209 (1985) (quoting
Franks).
10 In an additional series of motions, Multaler again sought a
Franks/Mann hearing, contending that Investigator Hanrahan, in
stating that serial killers "often" take personal items from their victims,
misrepresented one of the experts on whom he had relied. In the words of Multaler's
motion, that expert's book stated that "studies show that in 32 of 118 murders only
27% of the offenders kept trophies and/or mementos." The book actually stated:
"Many murderers' postcrime behavior involves the keeping of various items, generally
associated with the victim, as `souvenirs' of the murder (this was the case in 32 of 118
murders, or 27 percent)." Robert K. Ressler et al., Sexual Homicide: Patterns and
Motives 63 (Lexington Books 1988). Because of the plea agreement resolving the case, the
circuit court never ruled on this second request for a Franks/Mann
hearing.
11 In its brief to this court, the State explains that "the twenty-eight charges included
only images to which Multaler had not previously objected, and resulted in no more than one
charge per page of printed child pornography." Multaler does not dispute this
characterization.
The plea hearing record reveals that after Multaler entered his pleas, the court
announced its intention to use the criminal complaint as a factual basis. The prosecutor then
noted that attached to the criminal complaint were "the down[]loaded computer images
with the supporting document for each and every one of the[] counts [to which Multaler had
pled]." The ensuing colloquy between the prosecutor and defense counsel revealed that
Multaler had declined the opportunity to review "the photographic, down[]loaded,
computer images for each of the[] counts," and that he had relied on defense counsel's
"descriptions of the material that was contained in the Information" in order to
"understand[] that they depicted children who [were] under the age of
consent."
12 On appeal, Multaler challenges only the first search warrant. And in challenging that
warrant he does not renew the specific arguments he raised in his two requests for
Franks/Mann hearings.
13 Further, we note, Multaler's legal premise is flawed. He argues, "Obviously, if
such probable cause existed the [S]tate would have arrested him and charged him long
ago." Similarly, the dissent makes the mistake of asserting that "[t]he fact that
Multaler was never charged with any of the murders" was among the factors that
"bodes against a probable causedetermination twenty-three years
later." Dissent at ¶4. As we just observed, however, "`[t]he quantum of
evidence necessary to support a finding of probable cause for a search warrant is less than
that required for a conviction or for bindover following a preliminary examination.'"
State v. DeSmidt, 155 Wis.2d 119, 132, 454 N.W.2d 780 (1990).
In a related way, one of the dissent's legal premises is flawed. The dissent states that
"hindsight supports [its] conclusion that no probable cause existed here" in part
because "[n]oevidence of the murders was found at Multaler's
residence." Dissent at ¶5 n.1. Sometimes, however, searches do not succeed in
discovering the evidence for which the search warrants authorized the searches. Needless to
say, no legal authority has ever suggested that such lack of search success can
somehow be subsequently superimposed on the warrant application affidavit to establish the
lack of probable cause (any more than the success of a search can be
retrospectively superimposed on an affidavit to supply the probable cause that
had been lacking).
14 The dissent, accepting Multaler's argument, asserts that Investigator Hanrahan "had
to have known that Multaler spent approximately ten of the last twenty-odd years in
prison" and, therefore, that his affidavit incorrectly informed Judge Simanek that
Multaler had lived at his residence for over twenty years. Dissent at ¶5. We
disagree. Investigator Hanrahan's affidavit did nothing to conceal or misrepresent Multaler's
incarceration. Indeed, the affidavit specified that "after being convicted of kidnaping
[D.W.], Multaler was sent to Central State Hospital." (Central State Hospital, at the
time, was the state institution for those committed under the sexual-deviancy treatment
program.) Judge Simanek no doubt understood that an inmate or committed patient may
maintain a "residence" outside the institution walls, where evidence of a crime
may remain.
15 We share the dissent's concern that search warrants not issue based on stale information.
We strongly disagree, however, with the dissent's assertion that under our analysis "a
search warrant can easily be issued or reissued whenever another law enforcement
officer gives the stale information a `fresh analysis.'" Dissent at ¶3
(emphasis added).
As we have explained, this case presents "unique circumstances," and
Investigator Hanrahan was not what the dissent has termed, just "another law
enforcement officer." Much of the information on which he relied was old, but age
had not diminished its accuracy or value. And the "fresh analysis" was more
than just a new view; it was an analysis based on specialized expertise, specifically connected
to a sound and substantial theory, establishing probable cause.
16 As we observed earlier, Multaler's position in the trial court alternated between several
different ways of determining the proper number of counts. His apparent uncertainty
continues on appeal where, in his brief-in-chief, he argues that only one all-encompassing
count could avoid multiplicity problems but, in his reply brief, writes that "[u]pon
further reflection, ... the proper number of charges should be two-one count for each
diskette."
17 See n.11, above.
18 While the warrant-issuing judge would not have known of the subsequent events,
hindsight supports my conclusion that no probable cause existed here. No evidence of the
murders was found at Multaler's residence and DNA tests excluded Multaler as the person
whose blood was found under the fingernail of one of the victims.
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