On Point

Village of Hales Corners v. David E. Adams, 2013AP1128, 1/14/13, District 2  (1-judge opinion, ineligible for publication); case activity

Welcome to another court of appeals decision holding that police had reasonable suspicion to stop a person for drunk driving.  In this particular case, an informant tipped off a police dispatcher, who then informed an officer in the vicinity about a possible drunk driver.  Armed with a vehicle description and a license plate number, the officer found the van in question parked legally at restaurant and observed the driver steadying himself as he exited from it.  The informant remained on the line with the dispatcher the entire time of the stop and ultimately provided his identity and contact information to the police.

The court of appeals held that the informant’s tip was sufficiently reliable to give the arresting officer reasonable suspicion to stop the defendant.  See State v. Williams, 2001 WI 21, ¶36, 241 Wis. 2d 631, 623 N.W.2d 106.

¶20 In sum, the citizen caller’s tip was detailed and made to dispatch contemporaneous to its occurrence while the caller remained on the phone; furthermore, Officer Sayeg corroborated the facts relayed to him by dispatch and independently observed Adams stumbling from the driver’s seat of his vehicle. Because we conclude that those facts form reasonable suspicion for the stop, we affirm.

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

Did the trial court err in instructing the jury that voluntary consumption of any drug precludes a finding of “mental defect” under § 971.15, where the defendant claimed he suffered from a temporary mental defect based in part on his use of a prescription drug as directed by a doctor?

Did the court of appeals erroneously exercise its discretion in granting a new trial in the interest of justice?

The state’s petition complained only about the court of appeals’ application of its power to grant a new trial in the interest of justice based on an instructional error, but the supreme court’s order granting review specifically directs the parties to address the issue of whether the instruction was legally correct and, if not, whether the error was harmless. Thus, the decision in this case could be significant on two fronts: It will tell us whether voluntary use of a prescription medication as directed by a physician precludes recourse to a mental defect defense based on the effects of that medication; and it may be another shot across the bow to the court of appeals regarding the application of the interest of justice standard by the court of appeals. Here’s the background:

Anderson raised an NGI defense to intentional homicide charges. He claimed his self-control was impaired by a temporary mental defect arising from a combination of four factors: his own preexisting mildly impaired ability to exert self-control; a major depressive disorder that was not appropriately treated; a side effect of Strattera, a prescription medication he was taking; and his ingestion of alcohol. (¶2).

When instructing the jury about the meaning of “mental defect” the trial court included the following language: “A temporary mental state which is brought into existence by the voluntary taking of drugs or alcohol does not constitute a mental defect.” (¶3). Anderson argued this was erroneous because it failed to distinguish between the voluntary use of  illegal drugs and the use of prescribed medication. That distinction matters, Anderson argued, because the use of a prescription medication in accordance with a physician’s advice shouldn’t preclude a mental defect claim based on the effects of the medication given State v. Gardner, 230 Wis. 2d 32, 41, 601 N.W.2d 670 (Ct. App. 1999), which held a person may have recourse to an intoxication defense when a prescription drug renders the person unable to distinguish right from wrong, even if the person was forewarned of the prescription drug’s intoxicating effect. (¶¶4-5). Anderson also argued that the instruction failed to distinguish between minimal or moderate drinking and excessive use of alcohol leading to intoxication, which matters because the cases holding that alcohol use precluded a mental defect defense–e.g., State v. Kolisnitschenko, 84 Wis. 2d 492, 494, 498-99, 267 N.W.2d 321 (1978); Loveday v. State, 74 Wis. 2d 503, 506, 247 N.W.2d 116 (1976)–involved excessive drinking and didn’t establish a bright-line rule that consuming any alcohol makes the defense unavailable. (¶¶3, 38; see also Anderson’s brief-in-chief, available here).

The court of appeals concluded Anderson had forfeited these objections to the instruction because at the instructions conference he didn’t articulate with enough specificity the basis for his objection to the inclusion of “drugs” and made no objection to the inclusion of “alcohol.” (¶¶6-11, 38). But the court went on to conclude the claim of instructional error as to the “drugs” reference entitled Anderson to a new trial in the interest of justice. First, the court rejected the state’s argument that Gardner and Kolisnitschenko hold that a mental defect defense is not available if the defendant’s mental state was the result, even in part, of his ingestion of alcohol, which means Anderson couldn’t raise the defense because his own evidence showed his mental state was partly due to drinking alcohol. (¶¶13-19, 24). The court concludes neither case adopted a broad, blanket rule of law that any use of alcohol makes the defense unavailable. (¶¶20-23, 25-28). Further, the court concludes, those cases show the instruction’s general reference to “drugs” resulted in the real controversy not being tried:

¶37      …. On its face, the “voluntary taking of drugs” instruction told the jury that, to the extent Anderson’s defense was based on the taking of Strattera, the jury must reject that defense if Anderson took the Strattera voluntarily, in the sense that he voluntarily consumed the pills. That sensible interpretation of the instruction is contrary to case law holding that the use of prescription drugs, in keeping with medical directions, is generally not voluntary. We are unable to say with confidence that such an understanding of the instruction did not lead the jury to bypass the central controversy in this case, namely, whether Anderson took Strattera pursuant to his doctor’s advice and whether such prescribed consumption of Strattera caused Anderson to have a qualifying mental defect, as advanced by Anderson’s expert witness.

The supreme court’s decision, then, will resolve the availability of a mental defect defense for a defendant claiming his mental status resulted from the use of a drug as prescribed by a doctor and responsible alcohol consumption.

As for the interest of justice issue, just last term the supreme court stressed that interest of justice reversals should be limited to “exceptional” cases. State v. Avery, 2013 WI 13, ¶55 n.19, 345 Wis. 2d 407, 826 N.W.2d 60. (See our post for more details.) This case gives the supreme court another opportunity to clarify (or criticize) the court of appeals’ application of the standard, so lawyers asking the court to grant relief in the interest of justice will want to keep an eye on this case, as it may affect how you make your argument. In particular, note that even though it granted relief, the court of appeals said Anderson’s mental defect defense was “weak.” (¶39). The state argues it’s so weak any instructional error is harmless, and that a new trial should not be ordered in the interest of justice when the error was harmless. If the supreme court follows that line of thinking, it will be a sea-change; the current test for ordering a new trial in the interest of justice based on the real controversy not being tried doesn’t require a finding that a different result would probably occur on retrial. Vollmer v. Luety, 156 Wis. 2d 1, 19-20, 456 N.W.2d 797 (1990).

Review of a published court of appeals decision; case activity

Issues (composed by On Point): 

Wis. Stat. § 904.10 provides that evidence of statements that a person made in court in connection with an offer to the prosecuting attorney to plead guilty or no contest to the crime charged or any other crime is not admissible in any criminal proceedings against the person who made the offer.  The questions here seem to be whether Myrick made an offer to plead guilty or no contest and,  if so, whether the statements he sought to exclude were connected to any such offer.

Myrick was convicted of 1st-degree intentional homicide.  Pursuant to an offer from the DA, Myrick testified against a co-actor in a separate prosecution.  In return, the DA “agreed” to amend the charge against him to felony murder with an underlying charge of armed robbery and recommend a period of 12-13 years of initial confinement in prison. As promised, Myrick testified at the preliminary hearing against his co-actor but then stopped cooperating.  The DA used Myrick’s testimony against him at Myrick’s own trial claiming that Myrick never made an offer to plead guilty.   According to the State’s court of appeals’ brief, the DA did not offer to negotiate a plea, he only offered to make an offer to negotiate a plea after Myrick testified.  Think “an offer to offer” or a “proposal to propose, maybe” or a futures option.  Presumably SCOW will interpret §904.10 and apply it to the offer made here.  As noted in our prior post, there are 5 cases applying the statute.  The one the circuit court relied on, State v. Nash, 123 Wis. 2d 154, 366 N.W.2d 146 (Ct. App. 1985) seems distinguishable in that testimony used to impeach the defendant in that case was given after the plea negotiation process had ended.  Here, notes the court of appeals, Myrick’s testimony was given during the plea-bargaining process.

Here’s an issue in search of a published decision.  In 2011, Wisconsin amended Wis. Stat § 907.02 to require circuit courts to apply the Daubert test for the admissibility of expert testimony. Thus far, no Wisconsin appellate court has interpreted and applied the new § 907.02, so we don’t know the standard for reviewing circuit court decisions pursuant to the statute.  The old test for the admission/exclusion of expert testimony wasn’t too complicated, and on appeal the question was simply whether the trial court had exercised its discretion erroneously.  State v. Shomberg, 2006 WI 9, ¶10, 288 Wis. 2d 1, 709 N.W.2d 370.

Without getting bogged down in the nitty gritty, the new § 907.02, designed to fortify the trial court’s “gatekeeper” role, is more complex.  According to a Wisconsin Lawyer article, one of the “daunting tasks” for the Wisconsin trial judge is that she must now select from a long, non-exclusive list of possible factors those that to determine whether the expert’s methods and principles are reliable.  Then she must weigh the expert’s principles and methods against those factors.  In addition, she must conduct the required analysis re relevance, qualifications, helpfulness and so forth.

The appellant in State v. William A. Johnson, Appeal No. 2013AP65, raised these issues and argued that Wisconsin should use the same two-step standard of review that the Seventh Circuit uses.  That is, the court of appeals first reviews the circuit court’s understanding of the expert evidence rule–its choice of legal framework–de novo.  Then it reviews the circuit court’s decision to admit or exclude evidence for an erroneous exercise of discretion.  See e.g. Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008); Goodpastor v. City of Indianapolis, 736 F.3d 1060 (7th Cir. 2013).  Step one focuses on the trial court’s gatekeeper role–did it properly vet the expert.  That is reviewed de novo.  Step two is whether the trial court committed an abuse (or erroneous exercise) of discretion in admitting or barring the expert testimony.  Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010).

Johnson’ appellate brief presents detailed research on these issues.  The court of appeals’ summary disposition  here notes that the standard of review for trial court decisions applying the new law is an issue of first impression for Wisconsin.  Johnson has filed a petition for review.  Advocates interested in this issue cannot cite the court of appeals’ decision as precedent.  However, they may want to take a look at the extensive research presented in Johnson’s appellate brief.

Polk County  Human Services Dep’t v. Boe H., 2013AP1719, District 3, 1/14/13 (not recommended for publication); case activity

This appeal turns on the court of appeals’ application of the law of the case doctrine,  so it’s necessary to recap some procedural history.

After a jury found Boe mentally ill, a proper subject for treatment, and dangerous under the “fifth standard”, Wis. Stat. § 51.20(1)(a)2.e, the circuit court committed him to the DHS for 6 months.  Boe spent the first 30 days in a hospital.  Because § 51.20(13)(g)2d.a, says that a person committed per this standard may be “treated only on an outpatient basis” after 30 days, the DHS then moved him to a group home.  Near the end of 6 months, the DHS petitioned for to extend his commitment.  The court granted the petition and continued Boe’s placement in the group home for 12 months.  Boe appealed (Boe I). During briefing, the DHS petitioned to extend his commitment again and won.  Boe appealed (Boe II).

In Boe I, Boe argued that his placement in a group home violated § 51.20(13)(g)2d.a’s “outpatient treatment” requirement.  The court of appeals disagreed.  See Boe I and our prior post on it here.  Boe raised the very same issue here in Boe II, arguing, among other things, that because extension orders last only one year, this is a new case.   No dice, said the court of appeals:

¶12 . . . “The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82 (citation omitted).  The purpose of the law of the case doctrine is that “courts should generally follow earlier orders in the same case and should be reluctant to change decisions already made, because encouragement of change would create intolerable instability for the parties.”  Id. (citation omitted).

¶13 However, the rule is not absolute.  Id., ¶24.  “There are now certain circumstances, when ‘cogent, substantial, and proper reasons exist,’ under which a court may disregard the doctrine and reconsider prior rulings in a case.”  Id. (citation omitted).   Specifically, our supreme court has stated, “[A] court should adhere to the law of the case ‘unless the evidence on a subsequent trial was substantially different, [or] controlling authority has since made a contrary decision of the law applicable to such issues.’”  Id. (citation omitted). More broadly, our supreme court has stated, “It is within the power of the courts to disregard the rule of ‘law of the case’ in the interests of justice.”  Id. (citation omitted).

¶16 . . . Our decision in Boe I regarding Boe’s placement in the group home established the law of the case.  Here, Boe has pointed to no change in the law or substantially different evidence that would compel us to disregard the law of the case.  Further, the arguments Boe advanced in his reply brief do not persuade us it is in the interest of justice to revisit our decision in Boe I regarding the Department’s ability to place Boe in a group home.

The briefs are confidential but the decision indicates that Boe’s “interests of justice” arguments were that: (a) Boe I was unpublished; (b) Boe II is a new case; (c) Chapter 51’s annual review requirement shows that stability between the parties is not the goal in these case; and (d) Boe I challenged the court’s authority to place him in a group home, Boe II challenges the DHA’s authority to place him in a group home.

State v. Jesse J. Delebreau, 2014 WI App 21, petition for review granted, 5/23/14, affirmed, 2015 WI 55; case activity

You remember State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741? That’s the one that considered whether Montejo v. Louisiana, 556 U.S. 778 (2009), upended the Wisconsin rule that police may not question a person without an attorney present when the person has been charged with a crime and has either retained counsel or received appointed counsel.  See State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. Forbush yielded a “lead” opinion by 1 justice (which no other justice joined), 2 separate concurrences, a dissent, and 4 separate rationales.  The decision was mess and thus confusing to the lower courts and the bar. This On Point post teased out the justices’ positions and is worth rereading if you are following this issue.

Fast forward to 2014. The court of appeals has boldly gone where the Forbush court could not. It has held that Montejo, in fact, overruled Dagnall, at least as to the 6th Amendment right to counsel (never mind the state constitutional right to counsel).   Let’s see what happened in this case.

Delebreau was taken into custody as part of a drug investigation. After police referred charges to the DA, he asked to speak with someone on the local drug task force. Before police could respond, the State charged Delebreau, and he appeared in court with a public defender. The next day police responded to his request, gave him Miranda warnings, obtained a waiver, and got 2 recorded statements from him. The court of appeals held that Delebreau thereby waived his 6th Amendment right to counsel and thus the trial court properly admitted his statements at trial. It expressly adopted these excerpts from Montejo:

[W]hen a defendant is read his [or her] Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment:

As a general matter … an accused who is admonished with the warnings prescribed by this Court in Miranda … has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one. [Patterson v. Illinois, 487 U.S. 285, 296 (1988).]

 The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances. Montejo, 556 U.S. at 786-87. As noted previously, Montejo overruled the Jackson rule, which presumed a waiver to be invalid when a charged defendant was already represented. See id. at 792-97.

Points of interest.  (1) This marks the first time any Wisconsin appellate court has attempted to discern the rule of Forbush.  Slip op. ¶13. So why is it unpublished? Perhaps the court of appeals lacks confidence in its decision. That would certainly be understandable. See former Judge Michael Brennan’s guest post on “Forbush and the Riddle of a Fragmented Court” here. Pay special attention to the comments on his post. (2) Delebreau also raised a novel argument–that in order to waive a 6th Amendment right to counsel, the State can’t just use Miranda, it must follow the demanding procedures of Faretta v. California, 422 U.S. 806 (1975) and State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, which must be satisfied before a defendant may proceed pro se in court. The court of appeal flicks this off with “the argument is poorly developed” and “we are in no position to overrule the United States Supreme Court on a matter of federal constitutional law.” Slip op. ¶17, ¶19. Boy oh boy, lots of ammunition here for a petition for review.

UPDATE: 3/7/14: Though it was not recommended for publication, the opinion has been published after all.

State v. Fontaine Washington, 2011AP2462-CR, District 1, 1/17/14; court of appeals decision (not recommended for publication); case activity

Washington fled from officers trying to stop the car he was driving. (¶2). Before Washington was finally stopped and arrested, the officers in pursuit saw him throw something “shiny” out the car window; a search of the area where the object was thrown turned up a gun about 30 feet off the roadway. (¶3). Washington was charged with being a felon in possession of a firearm, but he denied possessing, much less throwing, the gun, and went to trial. Washington was convicted, though the state’s experts testified they didn’t find Washington’s DNA or fingerprints on the gun and there was no evidence the gun had scratch marks or grass stains indicating it was thrown 30 feet from a moving car. (¶4).

Washington moved for a new trial, alleging counsel was ineffective for failing to present the defense that he could not have thrown the gun police recovered because it was found too far from the road to have been tossed from a moving vehicle. (¶5). In particular, he alleged counsel failed to elicit the fact that the gun was found 30 feet from the roadway and that he would have had to have thrown the gun more than 30 feet given the width of the road and presence of parked cars. (¶5). In addition, postconviction counsel developed demonstrative evidence about the difficulty of throwing a gun 30 feet from a car by conducting an experiment in which a similarly weighted toy gun was thrown six times from a moving car at the same site; the longest throw that experiment obtained was just over 21 feet from the roadway. (¶¶5-6).

Defense counsel testified she did not strategically reject the distance defense; instead, she said, the defense didn’t occur to her, for she “didn’t conceptualize that 30 feet would be a possible or impossible distance to throw.” (¶14). Thus, at trial she did nothing to suggest it was improbable, if not impossible, for Washington to have thrown the gun that far while driving. She also agreed that if he was unable to throw the gun where it was found, he would have had a possible defense. While failure to present a particular defense doesn’t automatically mean counsel was deficient, State v. Koller, 2001 WI App 253, ¶53, 248 Wis. 2d 259, 635 N.W.2d 838, the court concludes counsel’s performance was deficient under the circumstances of this case. (¶¶13-16).

A useful reminder that wondering about the small, seemingly innocuous facts might open a whole new perspective on the case and suggest possible defenses.

Further, counsel’s deficiency prejudiced Washington’s defense:

¶18      The State’s case with regard to the possession charge was entirely dependent on the testimonies of Officers Burch and Burger—both of whom testified that Washington threw a “shiny object” from his car window—and the subsequent recovery of a firearm in a vacant field on North Mother Simpson Way. Because the jury was not aware of where exactly the gun was recovered, the jury could have assumed that the gun was recovered within easy throwing distance of Washington’s car. Evidence that the gun was recovered approximately 30 feet from a roadway, and, consequently, that the throw was practically impossible, would have been probative given the following undisputed facts:  (1) Officer Lewis testified that she responded to reports of gunfire in the same area at around the same time she was contacted by Officers Burch and Burger; (2) the gun had neither Washington’s DNA nor fingerprints; (3) no argument was made that the gun had scuff marks suggesting the gun had hit the ground after being thrown 30 feet from a moving vehicle; (4) Washington consistently denied possessing a gun; and (5) neither registration records nor other witness accounts linked Washington with the recovered firearm. The lack of evidence suggesting the probability of Washington’s ability to throw a gun 30 feet or more from a moving vehicle undermines our confidence in the outcome.

A procedural note: The circuit court initially denied Washington’s postconviction motion without a hearing. After Washington appealed the court of appeals remanded for a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). (¶5). Before the hearing Washington filed an amended motion alleging, as an alternative to his IAC claim, that the results of the throwing experiment constituted newly discovered evidence. (¶6). The circuit court found counsel was not ineffective, but granted a new trial based on the newly discovered evidence. (¶7). In addition to arguing that Washington didn’t satisfy the test for newly discovered evidence, the state objected that the trial court didn’t have the competency to consider the newly discovered evidence claim, as the remand contemplated only a Machner hearing. (¶8). Citing State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest possible grounds”), and State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (“[W]e may affirm the circuit court’s order on different grounds”), the court of appeals doesn’t decide the merits of the state’s claims because it concludes, unlike the circuit court, that Washington’s defense counsel was ineffective. (¶8).