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David Yates (copy)

Yates

MADISON – A former Baraboo man’s convictions for killing his twin infant children in 2008 were upheld Thursday after an appeals court agreed that police had lawfully entered his house and obtained evidence used at trial.

David R. Yates, 53, is serving two life sentences without parole for the murders of his five-week-old children, Tyler and Savannah, after being convicted on two counts of first-degree intentional homicide.

Yates appealed the convictions on several grounds, including that the evidence police gathered was unlawful because they lacked a warrant to enter Yates’ house where the bodies were found.

The infants’ deaths were attributed to blunt force head injuries.

“There were many legal errors,” said Joseph Ehmann, spokesman for the State Public Defenders Office, which appealed the conviction. Ehmann suggested a petition to the Wisconsin Supreme Court to review the case following the appeals decision is possible.

The District IV Court of Appeals concluded that Baraboo police properly exercised the community caretaker exception to warrantless searches in responding to Susan Winbun’s request to check on her children.

According to the appeals opinion:

Yates was watching the children in April 2008 as he and Winbun had an informal visitation agreement. After failing to reach Yates through 27 phone calls, Winbun went to Yates’ house and used her key to enter the garage. However, she couldn’t enter the house because a door handle had been knocked off.

Hours later, Winbun called police concerned about her children, concerned that Yates had passed out a few months earlier due from serotonin syndrome.

Barboo Police Officer Michael Pichler arrived at Yates’ house but received no response when he rang the doorbell. He saw that the fireplace, a light and a television were on, which, according to Winbun, who also was at the scene, had been on earlier in the day.

Using his flashlight, Pichler looked through a bedroom window and saw an adult’s leg on a bed. There was no response when he knocked on the window or when he returned to the front door and rang the doorbell. However, back at the bedroom window, he could no longer see the leg on the bed.

After checking with a sergeant, Pichler entered the house through a partially open sliding glass door, noticed the house was extremely warm and two sets of infant car seats.

Pichler then woke Yates, who appeared lethargic, unsteady and under the influence of something. Pichler said he was there to check on the twins’ welfare and Yates lied about them being at an acquaintance’s house.

Knowing that Yates was on probation and could not drink, Pichler escorted Yates to his squad car for a breath test. Yates refused, and Pichler secured Yates in the squad and returned to search the house for the infants, finding them under a bed.

Yates’ attorneys argued before trial and on appeal that Pichler was not acting under the community caretaker exception as it does not apply to homes, an issue they are raising in another case.

The appeals attorney also contended that Pichler violated Yates’ rights against unlawful search and seizure by learning more information about the inside of the house with each unlawful successive trip to the bedroom window and front door.

Based on Winbun telling Pichler that she had not been able to reach Yates, Pichler had no reason to believe Yates or the infants were home and in danger, Yates’ appeals attorney argued.

Also, Pichler saw no one in the living room or in the bedroom on a bed or in a crib the first time he looked through the windows and had no reason to peer inside a second time.

The appeals court disagreed. Instead, it found that Pichler’s actions supported his belief that something was wrong and someone inside the house may need assistance.

“From the initial call… Pichler knew that the mother of five-week-old twins was concerned about their welfare and that she had contacted the police. He observed indicators that someone might be home, — lights, fireplace, and television were all turned on — but no one answered the door. He also testified that he was aware of the fact that infants need constant care,” according to 29-page unsigned opinion.

The appeals court also threw out challenges to Yates’ convictions, including:

  • Det. Chris Nielsen unnecessarily destroyed evidence when, after collecting DNA samples, he cleaned blood from Yates’ cell phone
  • Circuit Judge James Evenson denied a defense theory that Winbun drugged Yates, killed the infants and framed him for the murders.
  • Evenson did not allow Yates’ attorney to ask Winbun leading questions, denying the opportunity to explore important areas to the defense.
  • Information about Winbun’s bankruptcy and a text message inviting Yates to smoke methamphetamine were excluded from trial as not relevant.
  • Expert medical opinion was excluded about Yates suffering from serotonin syndrome, a drug-induced delirium, when Pichler questioned him.
  • Defense attorneys failed to offer evidence of Yates’ elevated levels of Cymbalta that could support the theory that Winbun drugged him.

Ehmann said there are issues in the case that still could be examined by the state Supreme Court.

“As important is the destruction of evidence issue… Although the appeals court’s hands are tied by the state Supreme Court deferring to (U.S. Supreme Court) which has set a high standard for challenging police destroying evidence… there must be proof not only that evidence was destroyed but that police acted in malice toward the defendant,” Ehmann said.

Baraboo Police Chief Mark Schauf said the Sauk County Law Enforcement Association named Pichler Officer of the Year in 2010, the year Yates was convicted.

“Ensuring the public’s safety... is our job. ...(Pichler) was acting in the community caretaker role in responding to a mother concerned about her children... and when he looked in that window and saw someone unresponsive he went inside,” Schauf said.

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