On Point

State v. Derek S. Strasen, 2013AP1523-CR, District 2, 1/22/14; court of appeals decision (1-judge; ineligible for publication); case activity

There was no probable cause to administer an initial PBT to Strasen, who was stopped for speeding, even though he emitted a faint smell of intoxicants, had bloodshot and “glossy” eyes, and said he had been drinking but had his consumed his last drink over 12 hours earlier. (¶¶2, 4). Nonetheless, distinguishing State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999) (officer improperly extended a stop when he decided to perform a dog-sniff search for drugs based solely on a picture of a mushroom on the defendant’s wallet, with no other indicia of intoxication or drug use) (¶8), the court holds that the lack of probable cause for the first PBT (which read 0.212) didn’t preclude the officer from extending his investigation by asking Strasen to perform field sobriety tests and, when he failed the tests (¶3), by administering a second PBT:

¶9        …[A]t this juncture [when the trooper administered the first PBT], the trooper had enough to continue investigating whether Strasen was driving while intoxicated. The fact that the trooper administered the first PBT in order to confirm his suspicions is irrelevant. With or without that result, the trooper was justified in asking Strasen to perform the field [sobriety] tests. And the clues the trooper observed during those tests further confirmed his suspicions, prompting the second PBT. The trooper’s investigation was a seamless process of information gathering based on suspicious factors distinct from the reason for the stop. While the first PBT would not have been admissible in court, and was correctly suppressed by the trial court, there is no law prohibiting an investigating officer from administrating a PBT simply to confirm that he or she is on the right track.[3]

---

[3]  In fact, the practice of administering a PBT to confirm an officer’s suspicions might logically inure to the driver’s benefit if the result shows that the officer’s suspicions are wrong.

State v. Curtis L. Jackson, 2014 WI 4, affirming an unpublished court of appeals decision; majority opinion by Justice Ziegler; Justice Bradley concurs; Chief Justice Abrahamson dissents; case activity

In a decision that clarifies the rules regarding evidence of the victim’s character in cases involving self-defense, the supreme court holds that a defendant may present evidence about the victim’s reputation for violence even if the defendant was not aware of that reputation at the time of the offense. The court denies Jackson relief, however, after concluding that his proffer of reputation evidence was insufficient and that any error in excluding the evidence was harmless.

Jackson raised a self-defense claim to a charge of homicide. (¶¶4, 9-14). He moved to admit evidence about three prior instances of violent conduct by McCaleb, the victim. (¶¶5, 19-20). Jackson conceded he did not know about the prior conduct when he shot McCaleb, and so was not seeking admission of the evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (evidence of the victim’s violent character is admissible only if the defendant knew of same).  Instead, he argued the evidence was admissible as “other acts evidence” under § 904.04(2) and as character evidence under § 904.04(1)(b). (¶¶20, 101). The circuit court denied Jackson’s motion. It concluded the evidence was inadmissible as “other acts” under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). It also agreed with the prosecutor that character evidence was admissible only for credibility, and that Jackson’s proffered evidence wasn’t relevant on that issue. (¶¶22-25).

On appeal Jackson renewed his character evidence claim (but not his “other acts” claim), arguing that he should have been allowed to prove McCaleb’s character through evidence of his reputation for violence, as permitted under § 904.05(1), not through the prior violent acts cited in his motion. The court of appeals decision adopted the state’s argument that evidence of a victim’s reputation for violence was admissible only if it was known to the defendant at the time of the offense. (¶21). In the supreme court, however, the state changed its position, and conceded that evidence of a victim’s reputation for violence is admissible under §§ 904.04(1)(b) and 904.05(1). The supreme court agrees (¶¶46-48), at least when there is a dispute about whether the defendant or the victim was the first aggressor:

¶79  It is certainly true that in some self-defense cases there is a genuine factual dispute over which party started a confrontation. In those cases, evidence of the victim’s character for violence might be admissible and the circuit court is endowed with the discretion to make that determination. See, e.g., Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975). The circuit court is empowered to balance the “modest” probative value of the reputation testimony against the prejudice and the general prohibition against propensity evidence. Wis. Stat. §§ 904.01, 904.03.

But the court concludes Jackson didn’t clearly apprise the circuit court that he was seeking admission of reputation evidence as opposed to evidence about McCaleb’s prior violent acts. His pretrial motion “muddled its discussion” of those two distinct categories of evidence and that his written motion and oral argument in the trial court “never explained how first aggressor is at issue so as to affect the admissibility of character evidence.” (¶20). Further, the court decides, Jackson never established a foundation–despite the modest requirements for laying such a foundation (¶¶72-73)–and never proffered of evidence specific to McCaleb’s reputation for violence, for reputation is not proven by testimony about specific acts. (¶¶49-52). And, even if Jackson had satisfied those requirements, any error in excluding the evidence was harmless because the most relevant testimony regarding McCaleb being the first aggressor was already before the jury. (¶¶85-91). “The jury heard from five witnesses who testified to the events that led up to the shooting and the fact that McCaleb was undisputedly violent on the evening in question. Hearing that ‘McCaleb had a reputation for violence’ would have been anticlimactic at best.” (¶80).

Chief Justice Abrahamson dissents, concluding that: 1) Jackson did clearly argue he was seeking the admission of reputation evidence and made a sufficient offer of proof (or, to the extent he didn’t, was precluded from doing so by the trial court’s erroneous ruling on the issue)  (¶¶100-23); and 2) that the trial court’s erroneous exclusion of all evidence of the victim’s character was not harmless. (¶¶125-44). Justice Bradley agrees with the dissent’s first conclusion, but agrees with the majority that any error was harmless. (¶¶93-95).

It is important to keep clear the different rules at play here, for as this decision illustrates, keeping them straight is crucial both to making the best argument for admissibility and to preserving evidentiary claims for review by avoiding the “muddle” the majority perceived in Jackson’s argument.

The first rule is that McMorris evidence–specific acts of violence by the victim known to the defendant–is evidence admitted to show the defendant’s state of mind, which is why they must be known to him; thus, it is not offered to show the victim’s character or propensity, and should be seen as being admissible under § 904.04(2) (though the court has never explicitly decided whether McMorris evidence is admissible under § 904.04(2) or § 904.05(2), State v. Daniels, 160 Wis. 2d 85, 96 n.5, 465 N.W.2d 664 (1991)). Next, there’s the exception under § 904.04(1)(b) to the ban on character or propensity evidence, which allows use of character as circumstantial evidence of a crime victim’s conduct when the evidence is pertinent (relevant) to an issue in the case. This rule–not McMorris–is the basis for admissibility here, for whether Jackson or McCaleb was the first aggressor is pertinent to the claim of self-defense. Finally, there’s § 904.05, which dictates how character may be proven once when it’s admissible under § 904.04(1). Section 904.05 distinguishes between character as circumstantial evidence of conduct–which under § 904.05(1) can be proven only with reputation or opinion evidence–and character as a substantive issue, i.e., “an essential element of a charge, claim, or defense”–which under § 904.05(2) may also be proven with specific instances of conduct.

Jackson limited his appellate argument to the admissibility of reputation evidence, and the supreme court now makes it clear that, unlike McMorris evidence, the defendant need not have known about the victim’s reputation. That makes sense because the reputation evidence isn’t about the defendant’s state of mind; it’s circumstantial evidence that the victim has a turbulent and violent character, and so it fits neatly under §§ 904.04(1)(b) and 904.05(1). But what about the argument Jackson didn’t make: Namely, that in addition to reputation evidence, evidence of the victim’s prior violent acts, even though unknown to the defendant, should be admissible as character evidence under §§ 904.04(1)(b) and 904.05(2) because establishing that the victim was the first aggressor is a substantive issue, “essential” to the defendant’s claim of self-defense? It makes sense that who was the initial aggressor is essential to a self-defense claim given that under § 939.48(2) provocation by the defendant can limit, or even preclude, reliance on self-defense, and cases from other jurisdictions have held that evidence of specific acts is admissible to prove a victim’s character for violence, e.g., Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005). Moreover, if it’s available, evidence of specific acts is more powerful (¶68), while the comparatively lower probative value of reputation evidence (¶67) makes it easier for a trial court to exclude it under § 904.03.

Unfortunately, the court says McCaleb’s specific acts would not have been admissible because no character trait was an essential element of self-defense. (¶¶81, 84). Its discussion of this issue is merely conclusory, which is only to be expected since, as the court itself explains, Jackson didn’t raise this issue on appeal and apparently “agrees” the acts weren’t admissible under this theory. (¶¶81, 84). Despite the court’s lack of analysis, its conclusion isn’t easily dismissed as dicta, see Zarder v. Humana Ins. Co., 2010 WI 35, ¶¶52 n.19, 58, 324 Wis. 2d 325, 782 N.W.2d 682 (lower court may not dismiss as dicta statements from a supreme court opinion); State v. Picotte, 2003 WI 42, 61, 261 Wis. 2d 249, 661 N.W.2d 381 (when appellate court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, the decision is not dicta, but a judicial act of the court which it will thereafter recognize as a binding decision). Thus, arguing for the admission of specific instances of conduct to prove character in a case like Jackson’s will require an acknowledgment of the court’s treatment of the question and an argument that, if it isn’t dicta, the supreme court’s analysis was cursory and its conclusion wrong.

A final practice note: Jackson argued in the court of appeals that trial counsel was ineffective for failing to make a sufficiently clear argument and evidentiary proffer for the reputation evidence. The supreme court doesn’t address this issue, apparently because (according to the state’s brief (p. 19) and Jackson’s reply brief (p. 10 n.9 )) Jackson didn’t specifically renew the ineffective claim in his petition for review. Ultimately it didn’t matter here, as the court’s conclusion harmless error conclusion no doubt means it would also have concluded any deficient performance was not prejudicial.

David L. Riley v. California, USSC 13-132

Question presented:

Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.

Lower court opinion: People v. Riley, No. D059840 (Cal. App. 4th Dist., Feb. 8, 2013) (unpublished)

Docket

Scotusblog page

United States v. Brima Wurie, USSC 13-212

Question presented:

Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested.

Lower court opinion: United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)

Docket

Scotusblog page

The significance of the issue to be decided is obvious, and the Court’s decision in these cases will likely be only the first dealing with the revolution in digital devices. As Orin Kerr has written, “[t]he computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology‐specific rules.” Foreward: Accounting for Technological Change, 36 Harvard Journal of Law and Public Policy 403, 407 (2013).

Riley and Wurie are not formally consolidated, but the issues clearly overlap and intertwine, and they represent the division in the lower courts (described by Wurie, 728 F.3d at 3-7) that have addressed the question presented in the two cases. In Riley the defendant was stopped for a traffic offense and arrested; the police seized the smart phone he was carrying and twice examined it without a warrant. Data from the cell phone–including records showing when and where the phone was used and pictures and videos on the phone–linked Riley to a previous shooting. The search was held to be proper because it was incident to the defendant’s arrest. In Wurie, the defendant was arrested after making a suspected drug sale. One of the cell phones seized when he was arrested received repeated calls from a number identified on the phone as “my house.” After checking the phone’s call log the police found an address and (based on that and other evidence) obtained a warrant for the home which turned up additional evidence of drug dealing. The court rejected the government’s warrantless-search-incident-to-arrest rationale because it does not satisfy either of the two rationales for conducting such a search: Protecting arresting officers or preserving destructible evidence.

These two bases for search to incident were articulated in Robinson v. United States, 414 U.S. 218 (1973). Needless to say the world has changed since then, when a search through a person’s pockets which might contain keys, a wallet, cigarettes–in other words, a finite amount of personal property. No more, with latest-generation smart phones, which can contain (or be a portal to) reams of highly personal information: The equivalent of millions of pages of documents, thousands of photographs, hours of video, and connections to banking and medical and other confidential records stored on internet-connected servers. As Wurie put it,

We suspect that the eighty-five percent of Americans who own cell phones and “use the devices to do much more than make phone calls,” … would have some difficulty with the government’s view that “Wurie’s cell phone was indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book, that fall within the search incident to arrest exception to the Fourth Amendment’s warrant requirement.”

728 F.3d at 8 (quoted sources omitted). Of course, not every cell phone is a “smart” phone, which makes the Court’s grant in both of these cases more significant: Wurie involved the increasingly obsolete “flip” phone, the data storage capacity of which pales compared to the “smart” phone that was searched in Riley. Whether the technological differences between the two devices matters for the Fourth Amendment could be resolved by the Court.

As for the impact on federal and state practice in Wisconsin, Wurie criticized the reasoning of the decision in United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012), which upheld a search limited to obtaining a cell phone’s number and left the propriety of wider-ranging searches for another day. Thus, an affirmance of Wurie may well alter Seventh Circuit precedent. (Note, though, that Flores-Lopez expresses the same concern as Wurie about analogizing a cell phone to pre-digital property like a diary, 670 F.3d at 805, so its reasoning is not so starkly opposed to Wurie‘s as the latter suggests.) In Wisconsin, State v. Carroll, 2010 WI 8, ¶33, 233 Wis. 2d 299, 778 N.W.2d 1, held that the search of a cell phones image gallery wasn’t justified by exigent circumstances--i.e., by a concern the images would disappear before a warrant could be obtained. (On Point provides more detail on the case and its holdings here.) Whether the Court’s decisions in these cases will affect any of the reasoning in Carroll remains to be seen.

UPDATE (1/22/14): For a more detailed analysis of the questions presented in these cases, see this post at the Federal Evidence Review’s blog.

UPDATE (2/25/14): The always thoughtful Orin Kerr has this post about possible Fourth Amendment rules the Court might consider in deciding these cases.

State v. Raheem Moore, 2014 WI App 19, petition for review granted, 5/22/14, affirmed, 2015 WI 54; case activity

Moore, a 15-year-old charged with homicide, made incriminating statements to police 11 hours after he was arrested. His most incriminating statement–that he was the shooter and not merely an accomplice–came during a portion of the interrogation that was not recorded as required by § 938.195, which codifies the holding of State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110. The court of appeals rejects Moore’s arguments that: 1) his entire confession should be suppressed because it was involuntary; and 2) the statement he made during the unrecorded portion of the interrogation should be suppressed because of the violation of the mandate it be recorded.

The bulk of the opinion sets out the facts regarding Moore’s interrogation and, in light of those facts, assesses the voluntariness of Moore’s statement in accordance with the now-familiar standards of Jerrell C.J. (¶¶2-40). Though Moore was young and was interrogated over a long period of time, he had breaks for meals, cigarettes, and use of the bathroom, he had “experience” with the police, and the psychological pressure used was not inordinate. Thus, the court concludes, “this was not an instance of a young defendant ultimately ‘cracking’ under police pressure following hours of unrelenting, excessively manipulative interrogation. Rather, upon our independent review of the transcript, we agree with the State that Moore’s interviews are more accurately described as ‘a frank give-and-take between experienced detectives and an experienced juvenile suspect … who knew all along he did not have to talk to police and could demand a lawyer.’” (¶40).

The more interesting issue is whether the unrecorded statement Moore made (and its subsequently recorded reiteration) must be suppressed. Generally, to be admissible, a juvenile’s confession must be recorded, § 938.31(3)(b). There is an exception if the juvenile “refused to respond or cooperate in the custodial interrogation” if it was being recorded, but then only if there is a contemporaneous recording of the juvenile’s refusal, § 938.31(3)(c)1. The majority concludes that Moore did indeed “refuse to respond or cooperate” with a recorded interrogation during the portion in which he confessed to being the shooter, rejecting Moore’s argument he was only expressing a “preference” that the recording be stopped:

¶47      Contrary to what Moore argues, the transcript shows that this is not a case where he merely “expressed a preference” of having the recording turned off after detectives gave him the option of leaving it on or off. Rather, Moore broached the topic, and … he did so on two separate occasions. Moore explained in no uncertain terms that he wanted the recording off because he feared for his safety; he was afraid of his accomplice, Raynard Franklin. Although Moore had been assured earlier that the police did not share interview recordings with alleged accomplices or the public generally, he still wanted the recording device turned off. He was involved in a shooting, knew there would be consequences for the crime, and feared what might happen should Raynard find out that he told the police the truth. Moreover, the detectives took great care to ensure that Moore was affirmatively refusing to cooperate with having the recording turned off. [Moore]’s words and actions in these circumstances constituted a “refusal.” No magic words were required….

The concurring judge has a very different take, concluding Moore didn’t refuse to respond or cooperate, as he never asked directly that the recorder be turned off and did not affirmatively say he would not speak to the officers if the device remained on; instead, he just answered in the affirmative when the officers conducted a long series of leading questions about Moore’s discomfort with the recording device, the “obvious purpose” of which “was to make a record that turning off the recorder was Moore’s idea, not the officers’.” (¶50). With an unrecorded admission in hand, the police then devised a means to surreptitiously record Moore making the admission again. (¶¶22-23). The concurrence continues:

¶51      I conclude that this procedure runs contrary to the principles underlying Jerrell C.J. and Wis. Stat. § 938.31. A juvenile’s right to the safeguards of a recorded interrogation can be waived only in limited circumstances—much like a criminal defendant’s right to counsel. Whether a juvenile refuses to respond or cooperate is not ambiguous—either he refuses or he does not. Police officers should not guess or assume that a defendant is not cooperating to the extent that the officers have to seek guidance from their supervisors and then secretly record the defendant. Like the right to counsel, a demand to turn off a recording device stemming from a refusal to respond to questions or cooperate must be clear and unequivocal. Nothing in this text can fairly be considered an unambiguous refusal by Moore to continue the interview unless the recorder was turned off. Nor is there any explanation as to why police officers essentially gave Moore the right to choose whether to terminate recording an interrogation that our supreme court and the legislature mandated to be recorded.

¶52      Jerrell C.J., Wis. Stat. § 938.195, and case law explaining that the right to counsel must be clear and unequivocal, see Davis v. United States, 512 U.S. 452 (1994), all stem from the same underlying principals that defendants have a constitutional right to protect themselves against self-incrimination. If police officers can decide, without unambiguous statements, that a juvenile defendant will not cooperate if a recording device is on, then the instituted safeguards protecting these defendants will be swallowed by a system that allows officers to ask leading questions and create records to protect themselves while simultaneously disregarding the juvenile’s constitutional rights.

Readers can make their own assessment of this dispute using the pertinent exchange between Moore and the police is reproduced in the opinion (¶¶21-22, 46). Curiously, though, if the concurrence is right, it’s hard to see why it concludes the violation of § 938.31 is “harmless” (¶49) given that State v. Dionicia M., 2010 WI App 134, ¶¶3-4, 26, 329 Wis. 2d 524, 791 N.W.2d 236, held that the purpose of the Jerrell C.J. rule is not served by allowing an officer to turn on the recorder only after a juvenile has been convinced to confess, and therefore partially recorded statements are inadmissible.

State v. Michael T. Grant, 2013AP515-CR, District 2, 1/15/14; court of appeals decision (not recommended for publication); case activity

Grant was on trial for two counts of sexual assault involving two different victims. (¶¶1, 4-6). During deliberations the jury advised the court it had reached a verdict on one count but could not agree on the other. (¶8). In response the judge suggested taking the verdict the jury reached on the one count, announce it in open court, and send the jury back to deliberate on the remaining count. Trial counsel didn’t object. (¶8). The verdict was “not guilty” and that verdict, according to the defense investigator, caused an outburst in the court that visibly affected the jury. (¶¶8-9). The jury resumed deliberations and soon returned a guilty verdict on the second count. (¶9).

The court of appeals holds trial counsel wasn’t ineffective for failing to object to the taking of the partial verdict. Counsel cannot be expected to object to and argue an issue of law that is not settled, State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), and the law on partial verdicts in unsettled. There is no Wisconsin authority or precedent prohibiting the taking of partial verdicts, and the law in other jurisdictions is not clear enough that counsel should have taken notice and objected. (¶¶12-18).

As the court explains, some jurisdictions permit taking partial verdicts, though at least one court–while not holding the practice impermissible–reversed a conviction because it concluded taking a partial verdict likely prompted the jury to reweigh the evidence on the charges on which verdicts had been taken. United States v. Benedict, 95 F.3d 17 (8th Cir. 1996). The court does not, however, mention United States v. LaVallee, 439 F.3d 670, 691 (10th Cir. 2006), which criticized a trial court that directed the jury to return any partial verdicts it had reached because that “had the potential to infringe on the jury’s discretion to decide for itself what deliberative process to utilize and undoubtedly infringed on the jury’s discretion to decide when, if at all, to report a partial verdict.” If juries should have latitude to decide for themselves how to reach a verdict, jury here didn’t have that latitude, as the trial court effectively took over sua sponte the process of deciding how the jury should proceed and when to report a verdict.

For future reference, though, practitioners should note the court of appeals also quotes State v. Shomo, 609 A.2d 394, 398-99 (N.J. 1992), which held that even though partial verdicts are permissible, they are not a good idea:

Because of the potential compromise to either a defendant’s or the government’s interests, and the risk of interfering with jury deliberations, we strongly discourage routine use of partial verdicts. Nevertheless, trial courts possess the discretion to accept such verdicts absent a showing of prejudice to the defendant. Interim partial verdicts may be warranted, for example, when the jury has deliberated at length, when the charges against a defendant are rooted in unrelated facts, when the court has reason to be concerned that a juror may become ill before deliberations conclude, when there is risk of taint to the jury’s decision-making process, or when the State has indicated its intention to dismiss the unresolved counts.

The court says it “tend[s] to agree with the New Jersey Supreme Court that partial verdicts present an inherent risk of implying to the jury that the facts found in one count are correct, which it then may apply in its consideration of other counts where the facts are interlocking. When the underlying facts of the charges are interlocking, e.g., Benedict, 95 F.3d at 20, then the partial verdict is dangerous because the court is essentially involving itself in the jury’s deliberation process by accepting still-to-be deliberative facts as the foundation of a verdict in another charge.” (¶19). When the facts are not interlocking, on the other hand, as in this case, “we simply do not see the prejudice.” (¶20). Still, “since there is really very little value in announcing a partial verdict, it might be wise to heed the suggestion of the New Jersey Supreme Court and avoid partial verdicts altogether.” (¶20).

The court also concludes that the alleged “outburst” following the not guilty verdict did not constitute extraneous information that affected the jury’s verdict on the second count because the record doesn’t establish the outburst happened. The trial transcript does not note the event, the defense investigator’s description of the event was not corroborated by any other witness beyond trial counsel’s statement he heard a “shriek” or “outcry” or “outburst,” and the trial judge saw nothing out of the ordinary. (¶¶9, 10, 23-26).

.

State v. Lawanda R., 2013AP1661, District 1/4, 1/16/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly found that a parent with serious cognitive disabilities (she “functions at the level of a child less than ten years old” (¶8)) was unfit under § 48.415(2) on the sole basis that she failed to meet the conditions established by a continuing CHIPS order for the return of Will, her severely autistic son. The mother argued that under Kenosha County D.H.S. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, the termination of her parental rights violated due process because her cognitive limitations made it impossible for her to meet the conditions of the CHIPS order. The court of appeals disagrees.

Lawanda asserts that Jodie W. stands for the proposition that “return condition[s] that [are] impossible for a parent to meet [are] not narrowly tailored and therefore violate[] the parent’s right to substantive due process” (¶17), but the court reads Jodie W. as holding only that incarceration by itself does not demonstrate unfitness, and that the due process violation arose in that case because the circuit court found the mother to be unfit without regard to her actual parenting activities and without evidence that the conditions of return were created or modified specifically for the mother. (¶¶18-19, citing Jodie W., ¶¶49, 52). Thus:

¶20      Jodie W. dealt with the limited situation of an incarcerated parent who was unable to meet the conditions of return solely because of her incarceration. Contrary to Lawanda’s suggestion, Jodie W. does not stand for the proposition that in all situations in which a parent is unable to meet conditions of return, a finding of unfitness on the basis that the parent failed to meet those conditions violates the parent’s substantive due process rights. Furthermore, I read the supreme court’s mandate in Jodie W., that the conditions for return of the child be narrowly tailored as not being exclusively related to the ability of the parent to meet the conditions, but rather as also being based upon the requirements of what is necessary to adequately protect the child. Within that context, the conditions should reflect the individual ability of the parent, but only to the extent that the conditions can do so and still adequately protect the child.

¶21      Lawanda argues that the conditions of return and the circuit court’s evaluation of her failure to meet those conditions were not narrowly tailored to meet the court’s compelling interest in protecting Will from an unfit parent. However, Lawanda does not explain how or why the conditions were not narrowly tailored to her and Will’s situation, nor does she explain that there are any requirements which might be tailored to her particular cognitive limitations that would still adequately protect Will.

State v. Jermaine L. Rogers, 2013AP992-CR & 2013AP993-CR, District 1, 1/14/14; court of appeals decision (not recommended for publication); case activity: 2013AP992-CR; 2013AP993-CR

The trial court properly exercised its discretion in granting joinder under § 971.12(1) of two cases involving human trafficking, sexual assault, attempted pandering, and child enticement charges against two different victims, P.R. and K.D. Relying primarily on State v. Hamm, 146 Wis. 2d 130, 430 N.W.2d 584 (Ct. App. 1988), the court of appeals rejects Rogers’s argument that joinder was improper because of the differences in the ages of the victims, the time gap between the offenses, and the differences in the allegations. Instead, the court concludes, the offenses were of the “same or similar character”  because the evidence regarding each victim overlapped (in particular, the evidence showed a similar modus operandi for soliciting the victims). (¶¶12-14). For the same reason, the substance of the allegations with respect to each victim was similar, and the similarities of the character and substance of the allegations made the roughly three-year gap between the offenses not too remote in time. (¶¶15-16).

Nor did Rogers suffer substantial prejudice from the joint trial. State v. Locke, 177 Wis. 2d 590, 597, 502 N.W.2d 891 (Ct. App. 1993). His claim of prejudice is that the evidence regarding K.D. would not have been admissible at a trial limited to P.R. under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), because it was unduly prejudicial, and without the evidence regarding K.D. the evidence was insufficient to convict him of the crimes against P.R. The court disagrees with both assertions: The evidence would have been admissible, and in any event there was sufficient evidence based on P.R.’s testimony to convict him of the crimes against her. (¶¶17-19).

The court also rejects Rogers’s claims that his trial lawyer was ineffective on various grounds: failing to object to joinder (counsel did object, and joinder was proper (¶23)); failing to object to leading questions of a witness (no showing of prejudice (¶¶24-25)); failing to object to references to his nickname, “Pimp Rah” (again, no showing of prejudice (¶¶26-27)); cross-examining K.D. in a way that elicited evidence proving an element (the court disagrees the evidence proved the element, and there was plenty of other evidence to prove it (¶¶28-30)); and a conflict of interest because of a relationship with an other-acts witness called by the state (the court finds no conflict (¶¶31-33)).

Finally, the court rejects sufficiency challenges to three of the counts. (¶¶34-40).