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Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.

State v. Keith M. Bohannon, 2013 WI App 87; case activity

Substitution of judge; “new” judge under § 971.20(5)

When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment, and a motion to substitute her as a “new” judge after the case was returned to her was untimely and was properly denied.

Bohannon’s case was originally assigned to Judge Rebecca Dallet, who presided at Bohannon’s preliminary hearing and arraignment in February 2010. On August 1, 2010, the case was reassigned to Judge Dennis Cimpl, but a few months later the parties were informed the case would be transferred back to Judge Dallet on August 1, 2011. While Judge Cimpl still had the case, the state filed an amended information and Bohannon filed a motion to substitute Judge Dallet in anticipation of the transfer of the case back to her. The motion was denied, and Judge Dallet presided over Bohannon’s trial. (¶¶3-6).

Judge Dallet was the judge “originally assigned” to Bohannon’s case, so to substitute for her under § 971.20(4) Bohannon had to file for substitution before his February 2010 arraignment, which he did not do. (¶20). So Bohannon argues instead that he should have a second chance to substitute Judge Dallet because she was a “new” judge under § 971.20(5) based on State ex rel. Warrington v. Circuit Court for Shawano County, 100 Wis. 2d 726, 730, 303 N.W.2d 590 (1981). That case held “a new judge is one who substitutes for the judge assigned”; Judge Dallet was substituted for Judge Cimpl, the judge assigned, so she’s a “new” judge. (¶21). The court of appeals disagrees:

¶22      ….  While Judge Dallet did in fact substitute for Judge Cimpl on August 1, 2011, she was not a “new” judge under Wis. Stat. § 971.20(5) because she was the judge originally assigned to the case. While we acknowledge that the statute does not directly contemplate the situation before us—where the original judge assigned later is reassigned back to the case—we think our conclusion comports with the statutory language. See Kalal, 271 Wis. 2d 633, ¶45. The statute provides different definitions and separate rules governing the substitution of an “original” versus a “new” judge, see § 971.20(4)‑(5), and if we were to determine that a judge could be both “original” and “new,” our decision would lead to a tortured reading of what is, in our opinion, very straightforward statutory language, see Kalal, 271 Wis. 2d 633, ¶46.

¶23      Our conclusion also comports with the policy underlying the statute. As Judge Dallet was the first judge assigned to the case, Bohannon already had the opportunity to file a motion to substitute her under Wis. Stat. § 971.20(4). Contrary to what Bohannon argues, the fact that the State filed an amended information at the time he learned that Judge Dallet would be reassigned does not create the need for a second chance at substitution. Doing so would only delay trial. Indeed, as the State correctly notes, one of the reasons that Wis. Stat. § 971.20 was amended in 1981 was to avoid using substitution to delay criminal trials. See State ex rel. Mace v. Circuit Court for Green Lake Cnty., 193 Wis. 2d 208, 222 n.1, 532 N.W.2d 720 (1995) (Wilcox, J., concurring) (“Section 971.20 … is not to be used for delay nor for ‘judge shopping,’ but is to ensure a fair and impartial trial for the defendants.”).

As noted by the court (¶21 n.5), Warrington‘s value is limited by the fact it was decided before § 971.20 was substantially rewritten in 1981.

Limiting the playing of audio recordings at trial

The trial court did not err by not allowing Bohannon to play at trial the entire audio recordings of his questioning by police, which totaled over ten hours, after the state introduced portions of the recordings. (¶7). Bohannon argues the decision to limit the audio recordings violated the rule of completeness, § 901.07, because the jury was not able to understand the context of his statements or hear the detectives “pushing and pushing” him to make an admission. (¶27). The court of appeals rejects this argument. First, it is insufficiently developed: “Bohannon does not direct us to any particular portions of the recordings that he claims ought to have been included so that we might evaluate them; and the record on appeal does not include the recordings to which Bohannon refers. Bohannon does not cite to any of the transcripts of the recordings that are a part of the record.” (¶28). Second, Bohannon agreed at trial that all of the necessary portions of the recordings were in fact played and therefore waived his right to challenge the admissibility of the recordings on appeal. (¶¶7-9, 28).

Sufficiency of the evidence

The evidence was sufficient to convict Bohannon of felony murder based on an underlying felony of armed robbery. Bohannon argued there was not enough evidence for the jury to conclude he knew that his accomplice was going to use a gun to rob the victim based on, among other things, his statement to police that he changed his mind regarding the original plan and said that no guns were to be used to rob the victim; his statement that he did not know a gun was going to be used; and the fact he did not see any guns. (¶¶31-32). Under the standard of review favorable to the verdict, State v. Booker, 2006 WI 79, ¶22, 292 Wis. 2d 43, 717 N.W.2d 676, the court concludes there is “another view of the evidence” that supports the verdict, and it spells out the facts supporting that view. (¶33).

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