On Point

State v. Mitchell M. Treiber, 2013AP2684-CR, District 3, 3/11/14; court of appeals decision (1-judge; ineligible for publication); case activity

The inevitable discovery doctrine, which provides that “evidence obtained during a search which is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means,” State v. Lopez, 207 Wis. 2d 413, 427, 559 N.W.2d 264 (Ct. App. 1996), saved evidence obtained when a police officer opened the door to a truck stopped for a traffic violation.

After pulling over Treiber’s truck, the officer approached the vehicle and opened the driver’s door to speak to Treiber instead of talking to him through the open window. (¶¶4-5). After opening the door the officer smelled the odor of intoxicants, noted Treiber’s slurred speech, red face, and bloodshot, glassy eyes, and heard Treiber admit he’d been drinking. (¶6). Even if opening the vehicle door was not authorized under Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (it is reasonable under the Fourth Amendment for officers to order individuals to exit their vehicles during routine traffic stops), and constituted an unlawful search, the evidence the officer obtained after opening the truck door probably would have been discovered by lawful means:

¶19      In this case, [Officer] Sweetman lawfully stopped Treiber for racing and was therefore going to make contact with Treiber about that violation. Had Sweetman not opened the door to speak with Treiber, but instead talked to Treiber through the open driver side window, there is more than a reasonable probability that Sweetman still would have observed Treiber’s glossy and bloodshot eyes, his “very slurred speech,” his red face, and the odor of intoxicants. … Considering Treiber readily admitted to drinking, there is a reasonable probability that Treiber still would have admitted to drinking when asked through the open window.

The court also holds the initial stop was lawful because the officer had reasonable suspicion to believe Treiber was racing another car in violation of § 346.94(2). (¶¶2, 12-13).

State v. Minerva Lopez, 2014 WI 11, reversing an unpublished summary disposition of the court of appeals (available here: MINERVA LOPEZ ORDER 3 8 13); case activity

Allowing the defendant to withdraw her no contest pleas would cause substantial prejudice to the state because it would mean the defendant’s trial would occur after the child victim turned 16 and would thus preclude state from presenting video statements of child under § 908.08.

Lopez was charged with multiple counts of child abuse. (¶¶24, 26). The victim in the case, A.O., who was then 14 years old, gave two recorded audiovisual statements describing the conduct of Lopez and the co-defendant, Porfirio Olivas. (¶¶16-17, 25). The circuit court ruled the recordings would be admissible at trail. (¶¶36-38, 66-77). Lopez eventually entered no contest pleas to some of the charges and agreed to testify against Olivas. (¶¶39-40). After testifying against Olivas (who was convicted of most of the charges against him), but before being sentenced, Lopez moved to withdraw her pleas. (¶¶40-43).

While the circuit court concluded Lopez satisfied the “fair and just reason” standard for pre-sentence plea withdrawal, State v. Rushing, 2007 WI App 227, ¶16, 305 Wis. 2d 739, 740 N.W.2d 894, it denied her motion to withdraw her pleas because it concluded the state would be “substantially prejudiced” by the plea withdrawal. (¶¶53-54). The circuit court reached this conclusion because after Lopez’s entered her pleas, A.O. had turned 16, the audiovisual recordings were rendered inadmissible, and the state was therefore deprived of the opportunity to use that “compelling” evidence. (¶¶54, 78, 85, 91, 96-97).

The supreme court agrees with the circuit court’s conclusion:

¶86  The test for substantial prejudice that Lopez espouses is whether the State might still be able to prove guilt beyond a reasonable doubt without admitting the audiovisual recordings under Wis. Stat. § 908.08. The test, however, is not as Lopez wishes. The test is whether the State would be substantially prejudiced if Lopez were allowed to withdraw her pleas. The substantial prejudice that would result in this case is that the State would lose the ability to admit significant, persuasive, “compelling” evidence that would otherwise have been admissible under § 908.08 at trial. …

¶87  …. Lopez opines that the State has enough other evidence and that the State does not need the audiovisual recordings to prove her guilty beyond a reasonable doubt. Lopez concludes that the audiovisual recordings would otherwise be partially admissible and that, in that limited form, they are sufficient. … Lopez’s assertion that the State’s case is strong enough without the § 908.08 recordings is simply not the applicable legal standard.

The majority doesn’t deign to describe or define “substantial prejudice,” but concludes the standard is met in this case based on two grounds: 1) the state’s putative loss of the audiovisual evidence (¶¶88-98); and 2) the impact of the passage of time on A.O.’s memory (¶¶99-105). As to the first ground, the court cites to the clear admissibility of the entirely of the recordings under § 908.08, as opposed to the uncertainty of admission of the recordings under some other evidentiary avenue (¶88), and to the nature of the audiovisual evidence in this case:

¶98    …. The [circuit] court determined that these recordings were compelling and powerful. … Losing the ability to introduce the recordings under § 908.08 would not merely result in the same testimony being presented in a different form, but the State would be substantially prejudiced because, as the State put it: “central to this trial and central to the evidence in this case are the video recorded statements taken by detectives at Safe Harbor of [A.O.], the principal victim, . . . .” Without admitting the recordings as envisioned under § 908.08, the State was left with a completely different and less compelling presentation of its evidence.

As to the second ground, the court asserts the circuit court’s decision properly relied on Rushing, ¶¶8-9, 16, and State v. Bollig, 2000 WI 6, ¶¶43-46, 232 Wis. 2d 561, 605 N.W.2d 199, where plea withdrawal was denied because the state was prejudiced by the victim’s faded memory:

¶100   …. The substantial prejudice in Bollig and Rushing resulted from the fact that the victim’s memory would likely have faded given a delay. In the case at issue, not only does the State suffer the kind of prejudice which results from a delay impacting the victim’s memory, but here the State suffers the additional loss of significant, persuasive, “compelling,” audiovisual evidence that would otherwise have been admitted under Wis. Stat. § 908.08.

Justice Bradley, joined by Chief Justice Abrahamson, dissents, noting the majority’s conclusion is inconsistent with State v. Nelson, 2005 WI App 113, 282 Wis. 2d 502, 701 N.W.2d 32 (circuit court’s denial of pre-sentence plea withdrawal erroneous because it failed to consider the strength of the state’s case). (¶¶232-35). After all:

¶231    …. [I]f the State can still prove its case beyond a reasonable doubt [without A.O.’s audiovisual recordings], it is unclear how the State would be substantially prejudiced. The majority’s discussion does not indicate what State interest would be prejudiced and fails to clearly define substantial prejudice. Fashioning a circuitous test (the test for substantial prejudice is whether the State was substantially prejudiced) provides little illumination on the subject.

And as the dissent details, the state’s case is strong even without the recordings of A.O.: Lopez confessed much of the abuse to a detective the day after A.O. was rescued from her home, admitted the abuse again in another interview shortly after entering her plea, and then admitted the abuse yet one more time when she testified against Olivas. In addition, the state could introduce photographs of A.O.’s injuries and detailed medical reports. (¶234).

Moreover, even though A.O. had turned 16, there is no hearsay bar preventing the state from playing the visual (as opposed to audio) portion of the recordings to show A.O.’s injuries. (¶237). And the courts easily find other bases for admitting audiovisual recordings of a child victim’s statement that don’t otherwise meet the requirements of § 908.08–for example, admitting a recording after the victim testified because the victim’s testimony was significantly less detailed than the account she had previously given. State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784. (¶¶238-42). Finally, there is no evidence showing A.O. has had any memory loss, and this case is significantly different than Bollig and Rushing, which involved significantly younger children (ages 4 and 5) and, in Rushing, evidence of a difficult-to-interview victim. (¶¶223-28).

Think twice before printing this Brobdingnagian decision (246 paragraphs, 100-plus pages)–or even the long, repetitious majority opinion (107 paragraphs, 53 pages), which provides (as the dissent rightly notes) no illumination of the existing “substantial prejudice” standard, but merely applies that standard to correct what it obviously perceives to be the  court of appeals’ erroneous result. Of course, even if the decision doesn’t illuminate or change the existing standard, as a practical matter it means that plea withdrawal will be all but impossible in any case where: 1) the circuit court has ruled a “compelling and powerful” recording of a child victim is admissible under § 908.08; and 2) allowing plea withdrawal will result in a trial after the victim turns 16.

Speaking of making pre-sentence plea withdrawals impossible, the concurrence (Justices Prosser and Gableman) agrees with the majority, but goes on (at length: 50-plus paragraphs, 20 pages) about why the “fair and just reason” standard is outmoded and should be replaced with the “manifest injustice” standard. (Some of the reasons are foreshadowed by Justice Prosser’s majority opinion in State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24.) Chief Justice Abrahmson’s dissent (40-plus paragraphs, 19 pages; joined by Justice Bradley) explains why the fair and just reason standard should remain intact. Because the state conceded Lopez met the existing standard (¶62), neither the parties nor the majority addressed this issue, rendering the discussion academic–for now. Beware, though: The standard is obviously in the sights of two justices. 

State v. Nancy Jean Wall, 2013AP787-CR, District 4, 3/6/14; court of appeals decision (not recommended for publication); case activity

The prosecutor’s reference during opening statement that Wall’s BAC was over the legal limit of 0.02, despite a stipulation designed to keep that threshold from being referred to during trial, was not intended to provoke a mistrial. Therefore, the circuit court’s dismissal of the charges was erroneous.

Wall, who was charged with 5th/6th offense OWI and operating with a prohibited alcohol content, stipulated she had five prior OWI offenses and that her BAC exceeded 0.02, all in order to prevent the jury from learning that she had multiple OWI convictions. During opening statement, the prosecutor referenced the PAC charge against Wall and stated that the charge meant Wall was operating a motor vehicle with a BAC greater than she was allowed, which the prosecutor stated “was more than 0.02 grams.” The prosecutor also said the PAC charge would be proven because Wall had a blood alcohol concentration of 0.104, “over five times” greater than the “0.02” “the law says she can have.” (¶¶3-4). Wall moved for a mistrial, arguing the prosecutor’s references to the 0.02 BAC standard violated the stipulation and communicated to the jury that Wall had two or more prior OWI convictions. The trial court granted Wall’s motion and subsequently dismissed the case, finding the prosecutor overreached by violating the stipulation. (¶5).

The court of appeals reverses, concluding the prosecutor’s remarks did not constitute prosecutorial overreaching that would bar retrial:

¶11     …. Even assuming an intentional violation by the prosecutor, the record does not support dismissal with prejudice because the record does not support a finding that “the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions.” See [State v.] Hill, [2000 WI App 259,] 240 Wis. 2d 1, ¶12[, 622 N.W.2d 34]. …

¶12      Prior to the circuit court granting Wall’s motion for a mistrial, the prosecutor engaged in a lengthy discussion with the court about the appropriateness of his reference to the 0.02 BAC standard. The prosecutor argued against the motion for mistrial, which we have stated is an indication that a prosecutor did not intend to provoke the defendant to request a new trial. See Hill, 240 Wis. 2d 1, ¶¶17-18; State v. Quinn, 169 Wis. 2d 620, 626, 486 N.W.2d 542 (Ct. App. 1992). The prosecutor also suggested that a curative instruction could be given to the jury, which has been determined to be evidence that a prosecutor does not intend to provoke a mistrial. See Quinn, 169 Wis. 2d at 626. Furthermore, the reference to the 0.02 BAC was made during the prosecutor’s opening statements, before the prosecutor would have had an opportunity to gauge how well or poorly the trial was proceeding. In addition, shortly before trial, Wall sought permission from the court to call an additional witness at trial. Upon objection by the prosecutor, the circuit court denied Wall’s request on the basis that Wall did not provide the prosecution sufficient notice. It would have been reasonable for the prosecutor to infer that in the event of a retrial, any issues concerning notice to the prosecution of Wall’s intent to call this particular witness would not be present and that as a result of the witness’s testimony, the State would be in a less favorable position during a second trial.

As the court notes (¶14 n.2), the state argued the stipulation did not preclude it from referring to the 0.02 BAC standard, and the argument over what the stipulation meant figured prominently in the parties’ briefs. Message: Make sure you understand what the stipulation means regarding the evidence the state will and won’t introduce and the arguments the state will and won’t make, and then make that understanding clear on the record.

State v. Brian C. Beahm, 2013AP1678-CR, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

An 12- to 13-month delay between Beahm’s arrest and the filing of OWI charges did not violate his Sixth Amendment right to speedy trial.

Whether a defendant’s Sixth Amendment right to a speedy trial has been violated depends on: the length of the delay; the reason for the delay; the defendant’s timely assertion of the speedy-trial right; and prejudice to the defense from the delay. These factors comprise “a four-part balancing test” and the right “is not subject to bright-line determinations and must be considered based upon the totality of the circumstances that exist in any specific case.” State v. Borhegyi, 222 Wis. 2d 506, 509-10, 588 N.W.2d 89 (Ct. App. 1998).

The court assumes that the delay in the case was long enough to be “presumptively prejudicial,” Doggett v. United States, 505 U.S. 657, 652 n.1 (1992) (delay of around one year is presumptively prejudicial). (¶9). The reason for the delay was the state’s negligence (Beahm’s case was put in the wrong “pile”), which weighs in Beahm’s favor, though is not as weighty as deliberate delay. (¶11). Assertion of the right is neutral: Beahm didn’t assert the right during the delay, but he hadn’t been charged, so he had no opportunity to. (¶12). Finally, as to prejudice, Beahm points to anxiety and concern–which the court discount as unsupported (¶14)–and loss of ability to test the blood sample taken at arrest. The court rejects Beahm’s argument that under Doggett the delay of over 12 months shifts the burden to the state to rebut presumptive prejudice and concludes he did not show whether he was unable to have the sample tested during the delay or that the sample was in fact unavailable when he was finally charged. (¶¶16-21).

State v. Michael J. Adrian, Jr., 2013AP1890-CR, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

Transporting Adrian from the site his vehicle was stopped to the nearest police station for the purpose of performing field sobriety tests did not convert a lawful Terry detention into an illegal custodial arrest.

A person temporarily detained under Terry may be moved “in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.” State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997). Whether the transport of the person to a different location converts the temporary seizure into an arrest turns on two factors: (1) was the person moved within the “vicinity”; and (2) was the purpose in moving the person reasonable. Id. Adrian doesn’t dispute that he was moved within the vicinity (the police station was a block-and-a-half from the traffic stop) or that the purpose was reasonable (it was cold and windy, the sidewalk was unshoveled and slushy). (¶¶8-9).

Adrian instead points to all the other facts that would lead a reasonable person to believe he was under arrest: four officers were present at the traffic stop; Adrian was not informed of his right to remain on the scene and perform his field sobriety test; the officer conducted a pat-down search of Adrian before moving him; the squad car was locked; Adrian was separated from his keys and wallet; the sally port to which Adrian was transported was not in public view; and Adrian was moved to a “confined, law enforcement location.” (¶10). The court finds these facts unexceptional, already considered by the Quartana test, or speculative (¶12), and concludes “the conditions of the transport, when considered in light of the totality of the circumstances, did not transform the temporary seizure into an arrest.” (¶13).

Marquette County v. Randy S. Tomaw, 2013AP1510, District 4, 3/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

Tomaw was going 17 miles over the speed limit at 1:20 on a Sunday morning. He did not appear to respond to the officer’s initial attempt at contact, his upper body swayed as he walked to the rear of his vehicle, and the officer detected the “strong odor” of alcohol on his breath. Tomaw also made suspiciously inconsistent statements when questioned about his alcohol consumption that evening. “Not only was Tomaw’s initial denial suspicious in itself (given the strong odor of intoxicants), there was a fair inference that Tomaw was only moving toward the truth when he first said that he had consumed no drinks, then said one beer, then two.” (¶14). While any one of these facts taken alone wouldn’t be enough, it is the totality of the circumstances that matters, State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634, and taken together these facts constitute reasonable suspicion.

Rosemond v. United States, USSC 12-895, 3/5/14, vacating and remanding United States v. Rosemond, 695 F.3d 1151 (10th Cir. 2012); Scotusblog page (includes links to the Court’s docket, the briefs, and commentary on the case)

Resolving an issue that had split the federal circuit courts, the Supreme Court holds that in a prosecution for aiding and abetting a violation of 18 U.S.C. § 924(c)–which prohibits the use or carrying of a firearm during a crime of violence or drug trafficking crime–the government must prove the defendant “actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” (Slip op. at 1).

Some circuits had held the government must prove the defendant intentionally undertook some act “to facilitate or encourage his cohort’s use of the firearm.” (Slip op. at 4). The Court disagrees and instead applies the common law principle of aider and abettor liability, which requires only that person facilitate any part–even though not every part–of a criminal venture. (Slip op. at 7-9). “The division of labor between two (or more) confederates thus has no significance: A strategy of ‘you take that element, I’ll take this one’ would free neither party from liability.” (Slip op. at 8-9). Accordingly, it is not necessary for an aider and abettor of a § 924(c) violation to take any act to advance the use or carrying of the firearm.

As to the intent needed to be an aider and abettor, the Court, relying on the well-known formulation of Learned Hand in United States v. Peoni, 100 F.2d 401 (2nd Cir. 1938), says that “[t]o aid and abet a crime, a defendant must not just ‘in some sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’” (Slip op. at 11). The Court has previously found that intent requirement is satisfied “when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense,” and it concludes the same principle applies here:

…. An active participant in a drug transaction has the intent needed to aid and abet a 924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope–that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen … to align himself with the illegal scheme in its entirety–including the use of a firearm. And he has determined … to do what he can to “make [that scheme] succeed.”… (Slip op. at 12-13).

But for this to be true, the defendant’s knowledge must be advance knowledge:

When an accomplice knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. (Slip op. at 13).

Given this requirement, the jury instruction in this case was inadequate. It told the jury Rosemond was aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime,” but did not direct the jury to determine when Rosemond obtained the requisite knowledge. (Slip op. at 3, 17). Because the instruction did not correctly explain that Rosemond needed advance knowledge of a firearm’s presence, the Court remands the case for consideration of whether the error was waived due to a lack of objection and that the error was harmless. (Slip op. at 18).

Justices Alito and Thomas concur in the majority’s general conclusions, but dissent from the majority’s acknowledgement (slip op. at 15-16) that an accomplice who first learns of the firearm well into the commission of the offense may be unable to withdraw. The dissent views this as a “radical step” that “fundamentally alters the prior understanding of mental states” underlying substantive criminal law and places “a strange and difficult burden on the prosecution.” (Concur/dissent at 3). The majority disputes this reading of its opinion. (Slip op. at 16 n.10).

As noted in our post on the cert grant, Seventh Circuit precedent held that a defendant charged with aiding or abetting a violation of § 924(c) must knowingly or intentionally facilitate or encourage the use use of a firearm, and that aiding the under underlying crime knowing that gun would be used wasn’t enough. United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004) (per curiam); United States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998). The Court’s contrary holding undoes the Seventh Circuit rule.