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State v. Terry10/24/2000
APPEAL from a judgment and an order of the circuit court for Milwaukee County: TIMOTHY G. DUGAN, Judge.
Affirmed.
. Samuel Terry appeals from the judgment of conviction, entered following a jury trial, for possession of a controlled substance with intent to deliver, as a repeat offender, contrary to Wis. Stat. §§ 961.16(2)(b)1, 961.41(1m)(cm)2, and 961.48. He also is appealing the order denying his post-conviction motion. Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine, even under the relaxed preponderance of the evidence standard. We conclude that, while administrative agency decisions are given preclusive effective between the same parties in some instances, the doctrine of issue preclusion should not be applied to findings made in parole and probation revocation proceedings for three reasons: (1) the executive branch oversees revocation hearings through the Department of Corrections (DOC), and the district attorney is not a party. Moreover, DOC is generally disinclined to seek review of the ALJ's decision in a parole and probation revocation proceeding; (2) parole and probation revocation proceedings in this state and criminal trials have critical differences in procedure and function which militate against applying issue preclusion to revocation proceedings; and (3) public policy considerations weigh against applying issue preclusion to revocation proceedings. Thus, the State was not precluded from subsequently prosecuting Terry for possessing cocaine with the intent to deliver and we affirm.
I. Background.
. Terry was charged with one count of possession with intent to deliver cocaine (more than five grams but not more than 15 grams), as a repeat offender. The charges stem from an incident following a traffic stop. Milwaukee Police Officer Peter Reichert stopped Terry for running a red light. During the traffic stop, Officer Reichert was suddenly called away to assist in another matter. Before leaving, Officer Reichert directed Terry and his passenger to stay in the car while he went to assist other officers. Officer Reichert returned approximately two to four minutes later.
. Lawrence Kress, who lived approximately one block from the site of the traffic stop, watched Terry from his kitchen window after the officer pulled away. Kress reported to Officer Reichert upon his return, that he saw a man get out of the car, appear to drop something in the bushes near the car, and then get back into the car on the driver's side. Based on the information provided by Kress, the police located fifty-five "corner cuts" of crack cocaine in the bushes near Terry's car. Terry admitted that he was driving without a valid driver's license, but he denied possessing the drugs. Nevertheless, Terry was arrested on the strength of Kress's observations and a search yielded a cell phone and a pager.
. Terry was charged with one count of possession with intent to deliver cocaine as a repeat offender. He pled not guilty and his trial was scheduled for August 5, 1998. Prior to trial, DOC instituted revocation proceedings against Terry because he was on both parole and probation. DOC alleged that Terry violated his probation and parole rules by operating an automobile without a valid license, possessing drug paraphernalia in the form of a pager and a cell phone, and possessing cocaine.
. Terry's final revocation hearing was held in July 1998 before an ALJ. At the
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