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Confrontation: Forfeiture Doctrine – Witness Unavailability; Authentication – Telephone Recording; Appellate Jurisdiction

State v. Scottie L. Baldwin, 2010 WI App 162 (recommended for publication); for Baldwin: Robert E. Haney; (principal briefs not posted on-line)

The trial judge’s findings, though made prior to Giles v. California, 128 S.Ct. 2678 (2008), satisfied the test imposed by that case, that forfeiture of the right to confrontation requires intent to prevent the witness from testifying.

¶39      Therefore, the Court in Giles held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying.  See id. at 2684‑86.  In doing so, the Court reaffirmed the doctrine’s viability generally, but chose the narrower view of its scope.  See id. This narrower view was the one advanced by Justice Louis Butler’s dissent in JensenSee id., 299 Wis. 2d 267, ¶¶84-97 (Butler, J., concurring in part, dissenting in part).

¶41      Here, the trial court ruled that the State had met its burden of proving forfeiture by wrongdoing by a preponderance of the evidence because it demonstrated that “the defendant, Scottie Baldwin, has intimidated the State’s witness, R[.]Z[.], from attending court to testify against him at trial.”  (Emphasis added.)  At the time of the trial court’s ruling, Giles had not been decided and Jensen, with its broader view of the forfeiture by wrongdoing doctrine, required only that the defendant prevent the witness from appearing.  Despite Jensen’s broader interpretation of the doctrine, in a prescient decision, the trial court went beyond finding that Baldwin’s actions satisfied that more lenient holding in Jensen and found that Baldwin’s actions satisfied the yet-to-be-decided Giles holding.  Whether the trial court was aware of the dissent in Jensen, or whether the trial court acted on its own judicial instincts, the trial court made the correct legal finding, namely, that Baldwin’s intent was to prevent R.Z. from testifying at trial.

This conclusion depends, doesn’t it, on the idea that intimidation necessarily includes intent to accomplish that end. If not, then “intimidated the witness from testifying” would be much closer to (the discredited) “caused the absence of the witness” as opposed to (the requisite) “intended to prevent the witness from testifying.” Critically, though, Baldwin was charged with (and convicted of) intimidation of a witness, which contains the element of intent, so in context the judicial finding that he “intimidated the witness from testifying” probably included the concept that he did so intentionally. Or at least, one might assume the trial judge was using that shorthand. It’s just that the finding would then be implicit rather than explicit, something the court of appeals hints at it when noting that the conviction “confirm(ed) the trial court’s earlier finding of intimidation by a preponderance of the evidence,” ¶45. Of course, it’s possible, too, that intent is simply embedded in “intimidation”; but if that is so, then why does the pattern instruction (JI-Crim No. 1292) bother to spell out, as separate elements, preventing the witness from testifying and doing so with the purpose of preventing them from testifying?

Confrontation / Hearsay – Witness Unavailability

The trial court’s findings sufficiently establish the absent witness’s unavailability for purposes of admitting her prior statements.

¶50      In addition to successfully serving R.Z. with process for the trial, the record shows that the State successfully served R.Z. with process two previous times—on June 21, 2007 and January 7, 2008—and once in 2005.  Each time, R.Z. failed to appear.  Despite R.Z.’s past failures to appear, the State served her again, and on the morning of the jury trial, April 14, 2008, the State obtained a body attachment and again unsuccessfully attempted to return R.Z. to court.  Based on the above record, the trial court found that the State had exercised due diligence and made a good faith effort to produce R.Z. for trial, but that despite that effort R.Z. was unavailable.  See La Barge v. State, 74 Wis. 2d 327, 336-39, 246 N.W.2d 794 (1976) (issuance of subpoena and arrest warrant for witness is sufficient to show State’s due diligence to secure witness’s presence).

Authentication – Telephone Recording

Admissibility of jail recordings of phone calls between Baldwin and the victim upheld, against a claim the State failed to satisfy all the enumerated methods of authentication listed in § 909.015.

¶53      The trial court found that the telephone recordings were properly authenticated because the State had sufficiently identified Baldwin as the caller and R.Z. as the recipient of the calls, by presenting:  (1) the testimony of a lay witness (Garcia) who identified the voice of the recipient of the calls as belonging to R.Z.; (2) Milwaukee County Jail records identifying the specific pods in the jail from which the calls were made as the same pods that Baldwin was assigned to and identifying the times the calls were made as times when Baldwin was there; and (3) the details in the telephone calls themselves, which demonstrated knowledge familiar only to Baldwin and R.Z.  We agree and affirm.

The authentication methods in § 909.015 are illustrative only, and phone calls may be authenticated via circumstantial evidence, ¶55. Among other things: Baldwin’s voice on the recording was ID’ed by someone familiar with it; Baldwin ID’ed himself as the caller in one recording; and, the details discussed in the recorded calls would have been known only to Baldwin and the victim, ¶¶56-58.

Appellate Jurisdiction

The court of appeals lacks jurisdiction to review challenge to DNA surcharge, first raised on postconviction motion filed after notice of appeal was filed (and therefore not included within latter).

¶60      On June 26, 2008 (sic), Baldwin, through his trial counsel, filed a notice of appeal “from the conviction entered on April 18, 2008, and the sentence entered on July 19, 2008.”  Over a year later, on July 20, 2009, although still represented by counsel, Baldwin filed a pro se postconviction motion, asking the court to vacate the DNA surcharge on Cherry grounds.  Relying on Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540 (1978), the trial court denied the motion in a written order entered on July 24, 2009, on the grounds that the motion was filed pro se and Baldwin was represented by counsel.  See State v. Wanta, 224 Wis. 2d 679, 699, 592 N.W.2d 645 (Ct. App. 1999) (“[T]he [trial] court did not erroneously exercise its discretion by deciding not to consider [the defendant]’s pro se objection because he was represented in the proceedings by counsel.”) (citing Moore, 83 Wis. 2d at 301-02).  Baldwin never subsequently filed a notice of appeal from the trial court’s order denying his postconviction Cherry motion.

¶61      Wisconsin Stat. § 809.10(1) provides that an appeal is initiated by the filing of a notice of appeal from the “judgment or order appealed from.”[13] Pursuant to Wis. Stat. § 809.10(4), the notice of appeal “brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant.” (Emphasis added.)  The notice of appeal must sufficiently identify the order being appealed from.  See State v. Avery, 80 Wis. 2d 305, 309, 259 N.W.2d 63 (1977).  Baldwin never filed a notice of appeal that identified the order denying his Cherry motion as the subject of his appeal.  Baldwin admits that the notice of appeal his attorney filed in June 2008 (sic) identified only the judgment of conviction and sentence as the judgment and order appealed from.  The notice of appeal did not mention Baldwin’s Cherry motion, nor could it because he did not file that motion for another thirteen months.  Consequently, we lack jurisdiction to consider the order under §§ 809.10(1), (4).[14]

Jurisdiction? Disagreement is respectfully registered. The notice of appeal was explicitly directed to both “the conviction … and the sentence,” ¶29. The challenged surcharge was part of the sentence, see § 973.046, and inclusion of the sentence in the notice of appeal therefore conferred on the court of appeals jurisdiction to review that event. The problem is one of forfeiture, perhaps (Baldwin didn’t properly raise the challenge via postconviction motion), but that is something else.

(Note: see Update, immediately below re: subsequent modification of opinion as to matters discussed in this paragraph.) The factual background is a bit odd, made a bit odder still by a possible misconstruction of the record by the court of appeals. After his appointed postconviction counsel filed the notice of appeal, Baldwin filed a pro se challenge to the surcharge. According to CCAP, counsel filed the notice of appeal on June 12, 2009, and Baldwin his pro se challenge on July 20, 2009; one month, not 13 months, later. On the other hand (again, per CCAP), the notice of intent to pursue postconviction relief was filed 6/26/08 – the court thus seemingly confused that document with the much later notice of appeal. Does this matter? Not if the timing itself matters, because then the apparent mistake relates to a mere detail, the important point being that the motion came after the appeal was filed. But the mistake (assuming it to be such) is of sufficient magnitude to warrant correcting for the record. Back to the question of jurisdiction. It is settled that, to review a sentence “of right,” the defendant must first move to modify the sentence, State v. Hayes, 167 Wis.2d 423, 426,481 N.W.2d 699 (1992). Jurisdiction, though is something else. Thus, it is equally settled “that when sentences are challenged as excessive under the facts or as being the result of an abuse of discretion, no consideration can be given by this court unless a motion raising such error is made to the trial court; compelling circumstances being an exception to the requirement,” Spannuth v. State, 70 Wis. 2d 362, 365, 234 N.W.2d 79, 81 (1975), emphasis supplied; State v. Meyer, 150 Wis.2d 603, 442 N.W.2d 483 (1989) (same, with respect to modernized appellate rules; detailed discussion). Jurisdiction, that is, doesn’t admit of exceptions, compelling or otherwise. This isn’t to say that the court of appeals was wrong to pass on the issue, which wasn’t preserved by a postconviction, pre-appeal motion. But it is to say that at least arguably the court had the authority to overlook Baldwin’s misstep.

UPDATE: By order dated 12/20/10, the court modified the problematic language ¶¶60-61, so as clarify that the notice of appeal was in fact filed 6/12/2009. The blockquote in this post above has therefore been supplanted. It remains in the post simply to keep the discussion immediately underneath it comprehensible. As anticipated by that discussion, the factual inaccuracy in the decision’s initial rendering didn’t impact the legal conclusion. For the new text, the reader should consult the amended decision, which may be found at the “court of appeals decision” link at the top of this post.

Same case, different but procedurally related problem. It is well-settled that the court of appeals lacks authority to modify or withdraw any language from its own published opinions, Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997).; the opinion in Baldwin was ordered published 12/14, before the order modifying language in the opinion: where did the court derive authority for this action, seemingly contrary to Cook? The answer probably depends on how you interpret § 809.24, which permits the court to reconsider its own opinions.

Yet another update: The court, on 1/20/11, issued a “Final Publication,” the implication being that, because publication now post-dates the opinion’s emendation, the tension caused by the Cook rule is resolved. However, the court’s authority to issue a “final publication” order, an event that supersedes the publication committee’s order, is open to question. Until the court’s authority to make post-publication changes is fully explained, the doctrinal tension will remain, and the Cook controversy will continue to simmer.

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