On Point

State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt

Issue/Holding: A trial court has inherent and statutory authority (§ 906.11) to order that a defendant provide a pretrial summary of the specific “McMorris” evidence (violent acts of the alleged victim the defendant knew about, as relevant to self-defense) he or she wants to introduce at trial:

¶26      Given the limited nature of the evidence covered in this order——that is, the requirement that McClaren give notice of the specific McMorris evidence he wants to introduce and which he was aware of on the night of the incident——this order fits comfortably into Wis. Stat. § 906.11’s description of the court’s sphere of control.  The court is, in fact, required to “exercise reasonable control” over the “present[ation of] evidence” so that it can be done effectively and with minimal wasted time.  See State v. Wallerman, 203 Wis. 2d 158, 168, 552 N.W.2d 128 (Ct. App. 1996).  Both concerns were specifically mentioned by the circuit court with regard to this order.  This is precisely the type of admissibility of evidence questions that circuit courts should be attempting to resolve in advance of trial. ^[9] …

¶28      Under the circumstances presented here, where McClaren seeks to introduce McMorris evidence in support of a self-defense claim, the circuit court has the authority under Wis. Stat. § 906.11, in conjunction with Wis. Stat. § 901.04(3)(d), to order the defendant to disclose prior to trial any specific acts that he knew about at the time of the incident and that he intends to offer as evidence so that admissibility determinations can be made prior to trial.

The disclosure order is constitutional: the court analogizes to alibi-disclosure, Williams v. Florida, 399 U.S. 78 (1970), ¶35, while stressing that the trial court’s order “absolutely required” reciprocal prosecutorial disclosure, ¶¶38-39. As for enforcement of the order, guidance is taken from Taylor v. Illinois, 484 U.S. 400 (1988):

¶43      We agree with the State.  The United States Supreme Court has established a test for excluding evidence and has said that under certain circumstances, exclusion of evidence does not violate a defendant’s constitutional rights.  There are sanctions short of excluding evidence, of course.  The Court cited a case, for example, that “[gave] consideration to the effectiveness of less severe sanctions, the impact of preclusion on the evidence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.”  Taylor, 484 U.S. at 415 n.19 (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)).  However, as Taylor makes clear, even the sanction of excluding evidence against a defendant is constitutionally permissible in certain cases, such as where there have been willful violations “motivated by a desire to obtain a tactical advantage.”  Taylor, 484 U.S. at 415.¶44      As we noted above, Taylor states well the balancing of interests that goes into a court’s oversight of a trial:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant’s right to offer the testimony of witnesses in his favor.  But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.  The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.

Id. at 414-15 (emphasis added).¶45      Whether a violation merits the extreme sanction of exclusion must be determined by a circuit court after a violation has occurred, and under the parameters set forth by the United States Supreme Court in Taylor.

…

¶50      … It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was “willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,” the test set forth in Taylor.

Potentially vast as the implications might be, it is probably wise to treat the holding as narrow, a mere matter of the timing of something that would have to be disclosed sooner or later anyway.

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue/Holding:

¶7        Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. ^[3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).We generally do not consider arguments not raised in the circuit court. See Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388.

¶8        We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to Wis. Stat. § 971.37. At the hearing on Kaczmarski’s motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.

---

 ^[3] The State uses the term forfeit and waiver interchangeably in its briefs. We note that our supreme court in State v. Ndina, 2009 WI 21, ¶¶29-30, __ Wis. 2d __, 761 N.W.2d 612, has determined that “forfeit” is the more appropriate term in the context presented here.

 

 State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen

Issue/Holding:

¶14       As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___, 762 N.W.2d 449. ^[2] Huff did not object to the trial court’s decision to not have the tapes reported as they were played, and accordingly, the error was forfeited and we thus analyze the issue under an ineffective-assistance-of-counsel rubric. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42. ^[3]

See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here.

Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42

For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: On a trial for stalking, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details), but may not bar altogether submission to the jury of the stipulation:

¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton’s 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

That leaves the little matter of State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), which holds that on OWI trial, the existence of priors may be stipulated out of the jury’s sight and sound completely:

¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander’s holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations.

…

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, ^[19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant’s propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

But: a few paragraphs earlier, the court canvassed “the legislative history of stalking statutes in Wisconsin and nationally,” ¶34, stressing widespread recognition that stalkers often commit increasingly … you guessed it, violent acts, ¶36. Nope, conviction of a prior violent crime, where there’s a general understanding of stalkers’ tendency toward escalating violence, would mean little if anything to the jury. We are left, then, with Alexander as sui generis; better than nothing, given that it could have been overruled.

Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08

Issue/Holding: Counsel’s ignorance of VCCR Art. 36 rights available to foreign national client was deficient:

Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992). The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. See 5 28 C.F.R. § 50.5. The law was on the books; the violation was clear. Simple computer research would have turned it up.The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In support of its argument, the Government asserts that no court had ever held that the Vienna Convention created individually enforceable rights in the criminal setting. This is simply incorrect … .

…

…(T)he Article 36 violation should have rung a bell with a reasonable attorney.

Significant caveats apply (as always! otherwise we’d have much less to do). The crux of this holding is that the VCCR safeguards individual rights, else you’d have a no-harm/no-foul summary affirmance. The 7^th was way out in front of the curve on that principle, Jogi v. Voges, 480 F.3d 822 (7^th Cir. 2007) (Art. 36 confers individual rights). Because Jogi was decided after Osagiede’s case was litigated in the trial court, it wasn’t determinative on the question of what his attorney should have known. But it certainly shows the 7^th’s leanings. And now the court has leaned still further, and determined that even before Jogi, reasonable competence required familiarity with the right to consular assistance. Here’s where it gets interesting, though. Our state courts have taken an entirely different tack, and have held “that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [he or she] has no standing to assert any remedy pursuant to the Vienna Convention,” State v. Jose Carlos Navarro, 2003 WI App 50, ¶1.

Now what? You’ve got 7^th Circuit caselaw distinctly saying that the right is privately enforceable and that therefore counsel must be aware of its potential benefit, so that any failure to assert it is the product of considered strategy. But you’ve also got controlling state caselaw saying that this right is not privately enforceable, and that the defendant therefore doesn’t have standing to assert a violation. Our state courts aren’t (outside of judicial mandate in a specific case) obligated to follow the 7^th down this path. Neither Osagiede nor Jogi overrule the holding of Navarro. Technically, then, you might be able to ignore this new development and suffer no consequence. But, of course, that is not the way you want to practice law, nor is it in your clients’ interests. The point to be aware of is that state-court assertion of an Art. 36 violation will require discussion of Navarro (either as a minimalist approach: limiting it to the distinguishable issue of suppressibility of evidence for a “direct” violation; or maximalist: seeking its outright reversal by the supreme court).

Re: VCCR and suppression of evidence, see here.

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208

For Doss: Robert R. Henak

Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:

¶81      …

[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify, three factors must be present: (1) the comment must constitute a reference to the defendant’s failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument.

State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (citing Robinson, 485 U.S. at 34).

…

¶92      We have previously declined to establish a bright-line test as to “whether a prosecutorial comment crosses over ‘into the forbidden area of comment on an accused’s failure to testify’ and ‘violates constitutional rights,'” State v. Moeck, 2005 WI 57, ¶74, 280 Wis. 2d 277, 695 N.W.2d 783(citing State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988)). Instead, such determinations must be made on a case-by-case basis. Moeck, 280 Wis. 2d 277, ¶74.

¶93      The court of appeals has adopted the approach taken by the Third Circuit that “[t]he test for determining whether remarks are directed to a defendant’s failure to testify is ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ Questions about the absence of facts in the record need not be taken as a comment on a defendant’s failure to testify.” State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984)(citations omitted). Applying this test, the court of appeals has ruled that by presenting a limited reply to a defendant’s claim during a pro se trial that the state was unable to prove its case, the prosecutor did not improperly comment on the defendant’s failure to testify. Id.; See also State v. Werlein, 136 Wis. 2d 445, 457, 401 N.W.2d 848 (Ct. App. 1987)([T]he prosecutor’s comments were made in rebuttal to defense counsel’s suggestion that these were legitimate explanations for the events leading to the shooting.”).

¶94      Thus, where Doss’s attorney argued that Doss’s behavior in depositing the estate funds showed nothing but good motives, it is not clear that the prosecutor’s statements about the absence of facts in the record should be taken as a comment on Doss’s failure to testify, particularly where there was no direct reference to Doss’s failure to testify. This is the type of case that straddles a fine line between permissible and impermissible commentary by the State. The U.S. Supreme Court has recognized that a prosecutor’s statement that falls short of a direct statement on a defendant’s failure to testify, but instead “‘refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony,'” is at most an attenuated violation of Griffin v. California, 380 U.S. 609 (1965), and Robinson, 485 U.S. at 34, and may not actually constitute a violation at all. United States v. Hasting, 461 U.S. 499, 503, 506 & n.4 (1983). Therefore, Doss has not established that her counsel’s failure to object was deficient performance. See Johnson, 133 Wis. 2d at 217; Strickland, 466 U.S. at 688.

So? Did the closing argument amount to a comment on failure to testify or didn’t it? The court doesn’t purport to say. Apparently, it doesn’t have to. Trial counsel, in the first instance, waived the issue by not objecting, ¶83. More problematically, the court now seems to say that when an issue isn’t clear-cut, counsel can’t be deficient by failing to react. Thus, this case “straddles a fine line” and therefore Doss didn’t establish deficient performance. To be sure, the court doesn’t connect the dots quite that directly, but what else could it have meant? In this sense, the holding joins a lengthening list of cases to similar effect (see summaries collected here).

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue: Whether, following his in-custody invocation of right to counsel, Hambly’s subsequent statements that he didn’t know what was going on (eliciting the officer’s response that he’d sold cocaine to an informant) and wanted to talk to find out what his options were amounted to a initiation of contact authorizing interrogation within the Edwards rule.

Holding:

¶57      As in the Cunningham case, Rindt made a matter-of-fact communication of the evidence the police possessed. Rindt’s comment was not as provocative as that at issue in Easley, in which the investigator not only spoke of evidence against the suspect but also warned the suspect that he could face the death penalty. Detective Rindt’s comment may be favorably distinguished from the police conduct at issue in Innis, Easley, and Cunningham, because Rindt’s comment was reasonably responsive to the defendant’s own statement that he did not understand why he was under arrest.^[60]Confronting a suspect with incriminating physical evidence, or verbally summarizing the State’s case against the suspect, does not necessarily constitute the functional equivalent of express questioning. ^[61]

¶58      Although Meyer, the informant, was a childhood friend of the defendant, nothing in the record supports the suggestion that Rindt knew or should have known that his brief response would result in the defendant’s further statements. An objective observer could not have concluded that Rindt’s response to the defendant, who stated that he did not understand why he was under arrest, would likely elicit an incriminating response. Rindt merely stated that the defendant had sold drugs to an informant who had been cooperating with police during those transactions. We conclude that “[t]he compelling pressures of in-custody interrogation identified in Miranda as working ‘to undermine the individual’s will to resist and to compel him to speak’ were not present in the circumstances of this case.” ^[62]

…

¶66      For the reasons set forth, we conclude that Rindt’s words and conduct did not constitute interrogation; Rindt did not engage in express questioning or the functional equivalent of express questioning after the defendant effectively invoked his Fifth Amendment Miranda right to counsel. Rindt’s statement would not be viewed by an objective observer as the type of comment that would encourage the defendant to make some incriminating remark. A reasonably objective observer could not foresee that Rindt’s conduct and words would elicit an incriminating response from the defendant.

The court distinguishes State v. Ondra Bond, 2000 WI App 118, affirmed by equally divided vote, 2001 WI 56 on relatively narrow grounds (¶62: “Bond is significantly different from the present case”):

¶61      The officer in Bond did not make “a matter-of-fact communication of the evidence” against Bond; he made a cryptic remark that made sense only to the person who committed the crime for which Bond was arrested. Consequently, Bond’s comment understanding the officer’s words was an expected response, and thus the officer’s words were the functional equivalent of interrogation. One of the officers testified that the comment “was designed . . . to elicit a response from” Bond. ^[68] TheBond court of appeals concluded that the officer’s remark was the equivalent of interrogation in the absence of a Miranda warning and that Bond’s incriminating response had to be suppressed.

Note that the court not only did not overrule the court of appeals decision in Bond (which it certainly could have done) but instead all but explicitly ratified its holding by unreservedly relying on it.