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SCOW: Joinder of charges okay. Oh, and “or” can also mean “by”.

State v. Salinas, 2016 WI 44, 5/26/2016, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

In which our so-called law-developing court does not develop the law of joinder under § 971.12(1)—and even leaves it less clear than it used to be.

Salinas was charged with domestic abuse offenses against his girlfriend, M.S., and her daughter, V.G. While he was in jail Salinas called M.S. and asked her and V.G. to change their statements. After he pled, he called to ask them to say favorable things at his sentencing hearing. A few days after Salinas was sentenced, V.G. reported that Salinas had been sexually assaulting her for the last few years. (¶¶3-10).

Based on V.G.’s allegations the state charged Salinas with child sexual assault. A few months after that, he was charged with victim intimidation for the jail phone calls he made from jail during the domestic abuse case. The state then moved to join the charges, and the circuit court granted the request on the theory the two sets of charges were “connected together or constitut[ed] parts of a common scheme or plan” under § 971.12(1). (¶¶13-16).

The court of appeals held that joinder was improper for two reasons: First, “[t]here was no connection between the jail phone calls and the sexual assault allegations. The coercive phone calls were related only to sentencing in the domestic abuse case. Indeed, the sexual assault allegations and charges did not arise until after the domestic abuse case sentencing hearing had concluded.” (¶24). Second, the charges were not based on acts constituting a common scheme or plan because Salinas was not charged with victim intimidation related to the sexual assault allegations, and V.G. did not allege Salinas had threatened to physically harm her. (¶25).

The supreme court now reverses in a 5 to 2 vote. The majority sees the facts differently than the court of appeals, but it does so by jumbling, paraphrasing (not altogether accurately), or being very vague about the facts, and then making conclusory declarations about what those putative facts show. Here’s a taste, along with our bracketed, italicized editorial comments:

¶38     …[W]e hold the crimes joined against Salinas are “connected together or constituting parts of a common scheme or plan” because Salinas’s crimes share common factors or factors of substantial factual importance. First, V.G. was a victim of both the sexual assaults and the intimidation crimes, which were charged after the domestic violence conviction. [How does that show a scheme or plan?] Second, the last sexual assault occurred on the same day as the domestic violence incident. [Ditto.] Third, Salinas’s domestic violence toward V.G. immediately preceded the sexual assault; Salinas used the physical abuse to accomplish the sexual assault. [Where does the statute say that chance for the state to offer improper evidence of violent character is good enough for joinder?] Fourth, the intimidation charges and sexual assault charges were close in time [if you ignore the fact the sexual assaults were allegedly occurring for years], involved the same people [if you ignore the fact there were no sexual assault allegations regarding M.S.], and Salinas arguably engaged in one crime to prevent disclosure and punishment for another [“arguably,” of course, because there’s no allegation, let alone any evidence, he intimidated V.G. regarding the sexual assault allegations].

On top of the tendentious and conclusory discussions of the facts, the majority’s legal analysis reads the pertinent language of § 971.12(1) in a confusing, even bizarre, way. The state’s argument that joinder was proper relies on the part of the statute that allows for joinder of “2 or more acts or transactions connected together or constituting parts of a common scheme or plan.” So the majority finds, based on the same basic facts slightly rephrased, that the intimidation and sexual assault charges are “connected together” (¶¶42-44and that they “constitut[e] parts of a common scheme or plan” (¶¶45-46). But as you might be able to tell from the outtake above, the majority begins by addressing whether the charges are “connected together by a common scheme or plan.” (¶37).

What? Where does the word “by” appear in the statute? And why bother re-writing the statute to say “by” instead of (or in addition to) “or” when you’ve decided joinder was permissible under either of the prongs separated by “or”? The majority says it’s following Francis v. State, 86 Wis. 2d 554, 273 N.W.2d 310 (1979) (¶¶33, 37). But while Francis quoted the “connected together” language in its analysis, that was an air stroke; the oar in the water in that case was “common scheme or plan,” because the joined charges showed modus operandi and, thus, identity of the perpetrator. Id. at 560. The upshot is that the majority says prior cases “merged” the “connected together” and “common scheme or plan” language together (¶33) when the cases don’t do that; and the cases don’t do that for the obvious reason that the plain language of the statute doesn’t support doing that. Far from clarifying the law, then, this decision makes a hash of it.

A dissent by Justice Abrahamson, joined by A.W. Bradley, makes that point, and more—including that this was one of the court of appeals’ per curiams the majority was so eager to review, cases that do not raise novel or unsettled legal questions of general importance. (¶¶99-100 (citing analyses by SCOWStats here, here, and here).

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{ 1 comment… add one }
  • Peter Heyne May 27, 2016, 8:51 am

    SCOWIS states: “¶4 The next day, October 27, 2009, the State charged Salinas with four counts arising from this domestic violence incident. Both M.S. and V.G. were domestic violence victims.”

    This last sentence is only half correct. Unlike her adult mother M.S., the child V.G. cannot legally be a domestic abuse victim. Under both definitions of “domestic abuse”–namely both the DV arrest statute 968.075(1)(a) and the DV surcharge statute 973.055(1)(a)2., the “domestic” relationship must be with another *adult*–not a child.

    See 968.075(1)(a): ” ‘Domestic abuse’ means any of the following engaged in by an adult person against his or her spouse or former spouse, against an **adult** with whom the person resides or formerly resided or against an **adult** with whom the person has a child in common”;

    and 973.055(1)(a)2. “The court finds that the conduct constituting the violation under subd. 1. involved an act by the adult person against his or her spouse or former spouse, against an **adult** with whom the adult person resides or formerly resided or against an **adult** with whom the adult person has created a child”

    So it was improper for the State to charge, for CCAP records (and likely the Judgment of Conviction) to show, and for SCOWIS to assert, that the victim intimidation charge against the child V.G. was an act of “domestic” abuse.

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