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State v. Rory A. McKellips, 2014AP827-CR, petition for review granted 11/16/15

Review of a published court of appeals decision; case activity (including briefs)

In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.

Issues (from the order granting review):

1. What is the proper interpretation of Wis. Stat. § 948.075(1r), including the term “computerized communication system”?

a. Does the use of a cellular telephone to send text messages, make telephone calls, or leave voicemail messages constitute the use of a computerized communication system?

b. Must an individual use the data transmission capabilities of a cellular telephone or otherwise use the Internet to constitute the use of a computerized communication system?

2. Was the jury instruction regarding the charge of violating Wis. Stat. § 948.075 an accurate statement of the law? Is asking whether the cellular phone constituted a computerized communication system equivalent to asking whether the cellular phone constituted a component of a computerized communication system?

3. Is Wis. Stat. § 948.075(1r) unconstitutionally vague as applied and interpreted by the circuit court because persons of ordinary intelligence would not understand that use of a mobile phone that has no independent internet capabilities would constitute use of a computerized communication system in violation of law?

4. As a matter of law, can a new trial in the interest of justice be granted on the ground the real controversy was not fully tried based on a waived challenge to a jury instruction where the erroneous instruction was harmless error? If the jury instruction in this case was erroneous, was the error harmless?

5. Did the court of appeals erroneously exercise its discretion by granting a new trial in the interest of justice without analyzing whether this is an exceptional case that warrants the extraordinary remedy of discretionary reversal?

For more background on Issues 1 and 2, see our post on the court of appeals decision. Issue 3—whether § 948.075(1r) is unconstitutionally vague as applied to McKellips—was raised below, but the court of appeals didn’t decide the issue because it resolved the appeal on the statutory interpretation and jury instruction grounds. These issues by themselves makes this a case that criminal law practitioners should watch. But, as noted above, the decision could have an impact that goes way beyond that issue. Here’s why.

The state was the losing party in the court of appeals, so it filed the petition for review. The state’s petition raised only Issues 4 and 5; it did not directly challenge the court of appeals’ conclusions about what “computerized communication system” means, but instead assumed there was instructional error without discussing the merits. No real surprise there: The court of appeals’ use of the interest-of-justice rationale to grant new trials has been a target of the state’s petitions for review in recent years—spurred (if not initiated) by the court of appeals’ rejection of the state’s claim that the interest-of-justice rubric should be unavailable if the defendant could instead allege the ineffective assistance of counsel. State v. (Quentrell) Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W.2d 719. The supreme court’s grant of review obviously expands the scope of the issues considerably beyond those raised in the state’s petition, but if it rejects the court of appeals’ interpretation of § 948.057 or its conclusion there was instructional error, the supreme court won’t reach issues 4 and 5.

If it does reach those issues, however, the decision could work a significant change in the law. The supreme court might agree with the state that instructional error is always subject to harmless error analysis—a possibility that isn’t so farfetched given the court’s recent decision in State v. (Maltese Lavele) Williams, 2015 WI 75, which essentially said just that, and in a similar context, to boot, for both Williams and McKellips styled their claims as being about the sufficiency of the evidence rather than the correctness of the instructions. If the court takes that approach, the interest-of-justice, real-controversy-not tried basis for ordering a new trial based on instructional error, which was recognized in State v. Harp, 161 Wis. 2d 773, 469 N.W.2d 210 (Ct. App. 1991), could well disappear. Even if the court doesn’t go so far as to undo Harp, it has shown a proclivity for limiting interest-of-justice relief, e.g.State v. Kucharski, 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697, and State v. Burns, 2011 WI 22, 332 Wis. 2d 730, 978 N.W.2d 166, and has criticized the court of appeals for insufficient attention to the need for a case to be “exceptional” before discretionary reversal in the interest of justice should be granted, State v. (Brian) Avery, 2013 WI 13, 345 Wis. 2d 407, 826 N.W.2d 60. At the least, then, this may be another decision that has the effect of narrowing the reach of the court of appeals’ power to order discretionary reversal.

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