On Point

Review of unpublished court of appeals decision; case activity

Issue (composed by On Point)

Was Vogt seized for purposes of the Fourth Amendment when a police officer pulled up behind Vogt’s parked car, approached the car, rapped on the driver’s window, and directed Vogt to roll the window down?

Petitions for review aren’t available on the court’s website, so the issue statement is based on the brief filed in, and decision of, the court of appeals. The issues Vogt briefed was whether he was “seized” for purposes of the Fourth Amendment and, if so, whether the officer had reasonable suspicion for seizing him. The state argued only that the officer’s conduct didn’t amount to a seizure, noting the officer didn’t activate his lights, didn’t “charge” up to Vogt’s car, display a weapon, use strong or inordinate language, or otherwise confront Vogt in a threatening way. As we noted in our prior short post on the case, the court of appeals concluded that “when a uniformed officer approaches a vehicle at night and directs the driver to roll down his or her window, a reasonable driver would not feel free to ignore the officer.” (¶13).

The grant of review can’t be about the proper standard for determining whether there was a seizure, as that has been around a long time and was applied by the court of appeals. See United States v. Mendenhall, 446 U.S. 544, 554-55 (1980); State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834. Instead, the issue must be the import of the officer’s act of rapping on the window and “directing” it to be rolled down was a seizure. Other courts have held that knocking on a vehicle window to get the occupant’s attention and requesting (as opposed to ordering) the window be opened doesn’t amount to a seizure. See, e.g., People v. Clark, 541 N.E.2d 199 (Ill. App. 1989); Medley v. State, 630 So. 2d 163 (Ala. Ct. App. 1993); Jacobs v. U.S., 981 A.2d 579 (D.C. 2009). The court of appeals clearly considered this argument, noting that a “request” to roll down the window “might not be viewed as a seizure under these circumstances.” (¶13). But the court concluded the officer effectively ordered Vogt to open his window even though the parties disputed whether the officer “commanded” Vogt to roll down the window or merely “motioned” for him to do so: “those distinctions are not determinative in this case because without clarification, we must assume that the officer directed Vogt to roll down his window, rather than asking him if he would do so.” (¶13). It may be, then, that it is the court of appeals’ assumption that is at issue. It may also be whether the court of appeals conclusion based its decision too heavily on the directive to Vogt to roll down his window instead of considering the totality of the circumstances test. Stay tuned.

State v. Michael L. Cramer, 2012AP2547; District 1; October 15, 2013 (not recommended for publication); case activity

A jury convicted Cramer of 1st-degree reckless homicide for the death of his 10-week old son.  Both the Milwaukee County medical examiner and the attending physician testified for the State at trial. In their opinions, the baby died from blunt force injuries, including trauma to the head and brain.  The defendant’s expert testified that the baby’s injuries were caused by “resuscitated Sudden Infant Death Syndrome.”  Cramer’s postconviction motion argued that (1) the State presented demonstrably false testimony to the jury (i.e. death by “shaken baby syndrome”), (2) trial counsel was ineffective for failing to challenge it, and (3) the real controversy had not been tried.  He offered a second expert’s opinion to prove these points.

False testimony.  It’s true the State may not use false testimony to get a conviction because that would violate the defendant’s right to due process.  Giglio v. United States, 405 U.S. 150, 153-154 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959).  But, said the court of appeals, that’s not what happened in this case.

¶24 Cramer has not shown that the State used false testimony. Both Dr. Valvano and Dr. Tlomak were qualified expert witnesses, and we do not understand Cramer to contend in his postconviction motion or on this appeal that they were not. See Wis. Stat. Rule 907.02. Both physicians personally treated Matthew and saw evidence of his injuries first-hand. Both based their opinions on their training, experience, and knowledge. The fact that Dr. Plunkett (or Dr. Young for that matter) disagreed with their opinions does not make their testimony false. Indeed, Cramer’s argument that Drs. Valvano and Tlomak testified falsely is tenuous at best. For example, Cramer argues that Dr. Valvano’s testimony that: “There really is no controversy outside the courtroom. The American Academy of Pediatrics, pediatricians, neurosurgeons, it’s well accepted that violently shaking a baby causes injury to that baby” is false given the medical literature on which he relies. The medical-literature controversy however, is not that “violently shaking a baby causes injury to that baby” but rather whether shaking alone, without some type of impact, can cause the type of brain injury commonly associated with shaken baby syndrome in the past. See State v. Edmunds, 2008 WI App 33, ¶15, 308 Wis. 2d 374, 385, 746 N.W.2d 590, 596 (“[A] significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone[.]”). As we have seen, Dr. Valvano testified that Matthew died from abusive head trauma, not shaken baby syndrome.  Slip Op.

Ineffective assistance of counsel.  Because the record contained no evidence to support Cramer’s arguments on this point, the court of appeals concluded that the trial court appropriately denied his request for a Machner hearing.  Slip op. ¶ ¶29-30.

Interest of Justice.  According to the court of appeals, “[t]he ‘real controversy’ here was what and who caused Matthew’s death. . . Finding another expert after the trial who would have disagreed with the State’s experts does not mean the real controversy was not tried.” Slip Op. ¶ 32.  Or, put more eloquently:

Cramer’s interest-of-justice contention is but the wine of his other arguments, which we have already rejected, repackaged in a new container. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976) (“We have found each of these arguments to be without substance. Adding them together adds nothing. Zero plus zero equals zero.”). Id.

Gut reaction:  Cramer’s appeal tries to piggy back on the defense’s victory in Edmunds where the court of appeals tossed out a decade old conviction for homicide caused by shaken baby syndrome. The defense had filed a postconviction motion offering newly-discovered evidence to show that the expert opinions presented at the original trial (which challenged shaken baby syndrome) are no longer considered fringe views.  See prior On Point post here.

Questions presented:

1.  Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6)?

2.  Is a gun buyer’s intent to sell a firearm to another lawful buyer in the future a piece of information “required … to be kept” by a federally licensed firearm dealer under § 924(a)(I)(A).

Lower court opinion: United States v. Abramski, 706 F.3d 307 (4th Cir. 2013)

Docket

Scotusblog page

This case presents a significant question about the federal law that makes it a crime for a person buying a gun from a dealer “knowingly to make any false or fictitious oral or written statement … intended or likely to deceive … with respect to any fact material to the lawfulness of the sale ….” 18 U.S.C. § 922(a)(6). This is the provision the government uses to prosecute so-called “straw purchases”: the purchase of a firearm by one individual (the “straw purchaser”) on behalf of another individual (the “actual buyer”), a maneuver that allows the actual buyer to obtain a gun even if he is legally barred from buying one. This is a court-created doctrine, a legal fiction that treats the ultimate recipient of a firearm as the “actual buyer,” and the immediate purchaser as a mere “straw man.”

The courts agree that a buyer’s intent to resell a gun to someone who cannot lawfully buy it is a fact “material to the lawfulness of the sale.” But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun. The former, including the lower court in this case, conclude that the identity of the actual buyer is material regardless of whether the person can own the gun or not:

The identity of the purchaser is a constant that is always material to the lawfulness of the purchase of a firearm under § 922(a)(6). Thus, it can be reasoned that although the lawfulness of a sale may change depending on the identity of the purchaser, the fact that the identity of the purchaser is material to the lawfulness of the sale does not.

United States v. Frazier, 605 F.3d 1271, 1280 (11th Cir. 2010) (emphasis added). The other circuits, by contrast, hold that:

the plain language of the statute compels the conclusion … that § 922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the “lawfulness of the sale” of firearms…. Thus, if the true purchaser can lawfully purchase a firearm directly, § 922(a)(6) liability (under a “straw purchase” theory) does not attach.

United States v. Polk, 118 F.3d 286, 295 (5th Cir. 1997).

Though the Seventh Circuit hasn’t taken a side on this question, the Supreme Court’s resolution of this split will clearly be important for federal practitioners. What about state practitioners? The closest Wisconsin law is § 175.35. That statute imposes a waiting period for handgun purchases and requires a purchaser to provide identification and fill out a form which the dealer uses to conduct a background check to make sure the buyer may lawfully purchase the gun, § 175.35(2)(a) and (2g). The buyer “shall provide truthful information” on the form, § 175.35(2e), and failure to do so is a misdemeanor, § 175.35(3). There are no cases dealing with “straw purchases” under our statute, perhaps because a person falsifying information on the state form would also be falsifying information on the federal form and be prosecuted under federal law. Though our statute lacks the materiality language in the federal statute, it is clear the purposes of the two provisions are the same, so the Court’s decision in this case might make a difference in how § 175.35(2e) is interpreted–should it ever be invoked in a “straw purchase” prosecution.

State v. Deborah A. Nixon, 2013AP822-CR, District 2, 10/16/13; court of appeals decision (1-judge; ineligible for publication); case activity

Nixon was at the home of a friend who called the police because Nixon was being disorderly and wouldn’t leave; Nixon did leave for a while, but when she returned her friend called police again, who came and ended up arresting her for OWI. (¶2). At trial she testified that she drank as many as three beers after driving back to her friend’s house, but before the police arrived and arrested her. (¶3). The state’s blood analyst testified that based on Nixon’s  BAC of 0.089 at the time of the blood test, her BAC at the time of driving two hours earlier was between 0.119 and 0.125. (¶¶2, 4). That extrapolation assumes Nixon drank only before driving. But if Nixon drank three beers after driving as she testified at trial, her BAC would have been between 0.076 and 0.089, which is consistent with the blood test result. (¶5). Defense counsel didn’t elicit this fact from the state’s analyst or present his own expert to provide this information to the jury, and Nixon claims he was ineffective for failing to do so because it would have bolstered the credibility of her version of events. (¶5).

Despite its acknowledgment that “[t]his case revolves around credibility” (¶8), the court of appeals concludes counsel’s omission did not prejudice Nixon. Although an expert might have presented evidence that Nixon’s story was “within the realm of possibility based on her blood test results,” the omitted evidence “would not have tipped the scales of credibility away from the State’s witnesses and in her direction.” (¶8). In particular, the police testified Nixon was expressly asked before her arrest whether she had anything to drink after returning to her friend’s house, and she said “no” and never retreated from that claim over the course of the night. In addition, they saw no evidence of drinking except for one beer can that Nixon’s friend said had been left by Nixon before she drove. (¶4).

State v. Rodney Vincent McToy, 2013AP832-CR, District 1, 10/15/13, (1-judge; ineligible for publication); case activity

McToy pled guilty to two charges of misdemeanor bail jumping stemming from a domestic dispute with Ms. H. The parties briefed a straightforward Gallion issue:  Did the Milwaukee County Circuit Court erroneously exercise its discretion when it failed to provide a “rational and explainable basis” for the sentence it imposed—200 days in jail for one count and 2 years probation for the other? The court said very little about what happened in this case.  Instead, it focused primarily on separate domestic abuse cases involving the same victim against McToy in Waukesha County.  Indeed, the court admitted that: (1) it picked 200 days of jail time in order to ensure that McToy was in custody when the Waukesha case went to trial; and (2) it did not know how to address McToy’s “probationary needs.”

That’s okay, said the court of appeals.  The circuit court was right to focus on the abuse allegations and the victim’s refusal to cooperate in the Waukesha case.

As the circuit court recognized, “protection of the public” is a significant sentencing criterion.  Ms. H. is a member of the public, of course, and was fully entitled to the circuit court’s protection irrespective of whether she wanted it, or was too afraid to request it.  The circuit court’s on-the-Record explanation was both “‘rational and explainable.’”  See Gallion, 2004 WI 42, ¶49, 270 Wis. 2d at 562, 678 N.W.2d at 209 . . .  Thus, the circuit court noted both [sic] that “the protection of [Ms. H.] is an important” sentencing factor:  “How do I protect her if she doesn’t protect herself by staying away from the defendant?”  Further, the circuit court was fully justified in considering all of McToy’s history with Ms. H., irrespective of the criminal cases’ outcome.  Slip Op. ¶ 8. (citing State v. Frey, 2012 WI 99, ¶¶ 44-48; State v. Arredondo, 2004 WI App 7). . .

[A]s it explained to McToy, the two-year term of probation would help effectuate the circuit court’s “desire is to protect [Ms. H.]” as well as help McToy with his stated goal of avoiding Ms. H.  Contrary to McToy’s argument on this appeal, the circuit court considered that McToy needed to have an enforcing mechanism to keep him from Ms. H., something his history showed he was unable to do on his own.  Slip Op. ¶9. (Grammar error in Slip. Op.).

Okay. Fine.  But the decision also administers a strong tongue-lashing to McToy’s lawyer for filing appellate briefs that referred to the Waukesha cases as “unrelated” or “wholly unrelated” to the Milwaukee County case which gave rise to this appeal, though they involved the same victim.  Four times McToy’s briefs noted the difference between the charges in the Waukesha cases and the charges in the Milwaukee case.  And (as preferred by the court of appeals) McToy’s briefs mostly refer to the victim as “the victim” rather than naming her.  Nevertheless, citing SCR 20:3.3, the opinion cautions counsel that “lawyers owe full candor to the tribunals before which they appear” and that “[t]echnically correct but incomplete assertions can mislead or tend to mislead, as they do here, and this, too violates the obligation of unalloyed honesty.” Slip Op. ¶5.  (Emphasis in original).  It gets worse.

All On Point will say is that a quick, admittedly unscientific search for “SCR 20:3.3” or the term “candor toward the tribunal” on Westlaw turned up a fair number of recent District I cases accusing counsel of dishonesty.  State v. Lock, 2013 WI App 80; State v. Martin, 2013 WI App 55; Kirk v. Credit Acceptance Corp., 2013 WI App 32; In re Zachary K., 2012 WI App 132; Tierney v. Berger, 2012 WI App 91; Questions Inc. v. City of Milwaukee, 2011 WI App 126; Estate of Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101; State v. Devries, 2011 WI App 78; Pausch v. Cormier, 2011 WI App 121; State v. Neal, 2011 WI App 114.  Of course, Westlaw doesn’t pick up every decision, which means many escape scrutiny.

Districts II, III and IV seem more restrained.  So, are lawyers appearing in the District I court of appeals less honest than lawyers practicing in the other three districts or is there, perhaps, some other explanation for this unhappy trend?

State v. Marker Alan Sperber, 2013AP358-CR, District 3, 10/15/13 (not recommended for publication); case activity

This appeal turns on Wis JI-Criminal 2670, which explains the 5 elements of the crime the Sperber was charged with–a hit and run causing death to the victim.  The 2nd element requires that the defendant know that his vehicle was involved in an accident involving a person.  The problem here was that Sperber was driving in the dark on wet roads flanked by blackened snowbanks.  He knew he hit something but thought it was a large garbage can.  He was wrong.  It was a man in a wheelchair, and the man had died from the accident.

The case went to trial.  During deliberations, the jury asked the judge these questions about the 2nd element of the offense:

[D]oes the defendant have to be aware that he hit a person at the time of the accident or in the days following the incident in order to fulfill the requirements for the second item?  Slip Op. ¶22.

Are we trying to determine [Sperber’s] guilt of knowing he hit a person or a trash can immediately after the accident happened or whether or not he knew before or on the day he was taken into custody?  Slip op. ¶23.

Both times the judge declined to answer the question and instead told the jury just to read Instruction 2670.  Defense counsel (and the State) agreed with the response.  The jury convicted Sperber.

Ineffective assistance of counsel.  On appeal Sperber claimed that his trial lawyer was ineffective for failing to ask the judge to tell the jury that it had to determine whether Sperber knew he struck a person at the time he left the accident scene.  The State conceded deficient performance but argued there was no prejudice because the instruction’s meaning is “obvious.”

Wrong, said the court of appeals.  Because the jury repeatedly asked for clarification “the instruction’s meaning was neither obvious nor self-explanatory to Sperber’s jury.”  Slip op.  ¶27.  Furthermore, the written, pattern instruction may have misled the jury because:

The knowledge section instructs the jury, “Knowledge must be found, if found at all, from the defendant’s acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon knowledge.” (Emphasis added.) Thus, rather than limiting itself to only those facts bearing on Sperber’s knowledge when he left the accident, the jury very well may have believed they should consider all facts and circumstances up through the time police arrested him at his home.  Slip op. ¶28.

 New trial in the interest of justice.  The court of appeals ruled for Sperber on this point too.

The only contested issue at trial was whether Sperber knew the accident involved a person. The jury twice asked for clarification on this issue, demonstrating it was confused as to when knowledge was required for conviction under the statute. This was a pure question of law that the court should have clarified. Although a circuit court enjoys broad discretion when instructing the jury, “[w]hen a jury makes explicit its difficulties[,] a trial judge should clear them away with concrete accuracy.” See Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); see also State v. Booth, 147 Wis. 2d 208, 212-13, 432 N.W.2d 681 (Ct. App. 1988) . . . Slip op.  ¶34.

Points of interest:  The written jury instruction that the trial judge told the jury to review isn’t in the appellate record.  Slip op. fn. 2.  Oops.  Are we sure the jury actually had the instruction to review? And query whether the pattern jury instruction needs to be amended in order to avoid this sort of confusion in the future?

State v. Raynard Rashawn Jackson, 2012AP1854, 2012AP1861, and 2012AP1862, District 1, 10/15/13; court of appeals decision (not recommended for publication); case activity: 2012AP1854; 2012AP1861; 2012AP1862

Jackson was alleged to have been involved in a shooting, and as part of their investigation the police constructed a photo array to show to three eyewitnesses, all of whom identified Jackson. (¶¶2, 10-11). The array consisted of photos of Jackson and five other persons. (¶10). Each photo was placed in a folder, and a folder with a photo of someone other than Jackson was selected to be the first folder; the remaining five were then supposed to be shuffled so the officer showing the array wouldn’t know which folder contained Jackson’s photo. (¶10). The police used this method up to a point: They shuffled the folders for the first eyewitness, but instead of reshuffling them they showed the folders in the same order to the remaining two witnesses. (¶11). The court declines to address Jackson’s argument that this departure from the “best practices” standard rendered the array unduly suggestive because he did not raise this objection at trial. (¶¶20, 22). In addition, Jackson’s argument the second and third witnesses may have taken cues from the officer showing the photos is purely speculative. (¶¶21-22).

As part of pretrial discovery the state provided a “lineup reference sheet” that displayed all the photos used in the array–though not in the order shown to the witnesses–along with a police report describing the method used to show the array to the witnesses–which explained that Jackson’s photo was in the fourth folder. (¶12). The provision of the “reference sheet” did not violate § 971.23(1) because all the photos used in the array were disclosed and the police report explained the order in which they were presented to the witnesses. (¶12). In any event, any discovery error was harmless because Jackson’s identity was not the real issue at trial, for all three witnesses knew Jackson somewhat before the incident. (¶13). Because there was no discovery violation, or because any violation was harmless, trial counsel wasn’t ineffective for failing to move to exclude the photo array evidence. (¶15).

If Jackson’s identity isn’t the real issue, what was? Whether Jackson fired a gun during the incident. The court rejects his claim the evidence was insufficient to convict him of reckless endangerment and felon in possession of a firearm because none of the witnesses saw him shoot a gun. While that is true, all of the witnesses testified that they either heard gunshots shortly after Jackson’s arrival, saw Jackson chase the person who was shot at, or saw Jackson with a gun at some point prior to the shooting. The jury could reasonably infer from the testimony of these witnesses that Jackson possessed a gun and fired shots at the victim, and therefore the evidence was sufficient to support Jackson’s convictions. (¶¶26-28).