On Point

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell

Issue: Whether statements made when confronted with documents produced in violation of § 968.135 subpoena procedure are suppressible.

Holding:

¶81 The defendant’s motion to suppress the incriminating statements in the present case is substantially similar in nature to a motion to quash the subpoena. Both motions prevent the State’s using evidence derived from the subpoena. The documents are derived from the unlawful subpoena and the incriminating statements are derived from the documents derived from the unlawful subpoena.

…

¶87 When the legislature allows a motion to quash or limit a subpoena to prevent the State from enforcing a subpoena issued in violation of Wis. Stat. § 968.135, it is absurd and unreasonable to allow the State to use incriminating statements derived directly from such a subpoena and to gain an advantage by violating the statute. The legislature could not have intended that the statute would be interpreted in such a way to allow circumvention of the carefully drafted legislative requirements and safeguards for the issuance of a subpoena under Wis. Stat. § 968.135. ^[42]

State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, affirmed, 2008 WI 67, ¶48 n. 7 (reconsideration denied, 2008 WI 118)
Pro se

Issue/Holding: ¶13 n. 4:

We are disturbed by Reddin’s presumption to give, and Judge Murray’s acquiescence to receive, Reddin’s ex parte advice about the scope of Hipp’s ability to have issued subpoenas for the production of his witnesses at the John Doe hearing, and we remind the bench and the bar of SCR 60.04(1)(g) (“A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding” other than in carefully delineated circumstances.), and SCR 20:3.5 (“A lawyer shall not: … (b) communicate ex parte with [a judge] except as permitted by law or for scheduling purposes if permitted by the court.”). See also State v. Washington, 83 Wis. 2d 808, 824–825, 266 N.W.2d 597, 605 (1978). The Rules of Professional Conduct were amended, effective July 1, 2007, by S. Ct. Order 04-07, 2007 WI 4. Supreme Court Rule 20:3.5(b) is unchanged. The new Rules of Professional Conduct may be accessed at: http://www.legis.state.wi.us/rsb/scr/5200.pdf.

Disturbed, but not quite enough to do anything about it, even though the judge also apparently obstructed Hipp’s attempts to order transcripts, ¶15 n. 5:

¶15 Hipp also seeks an order removing Judge Murray as his John Doe judge, and Reddin from further participation. We have no doubt but that Judge Murray will on remand fulfill his responsibilities as an impartial magistrate. See State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597, 605 (1978). [5] We express no opinion whether Hipp may, on remand, seek relief under either Wis. Stat. §§ 801.58(7) or 971.20(7), the substitution-of-judge statutes in civil and criminal cases, as that issue has not been presented or briefed. We also decline to interfere with the authority of the Milwaukee County district attorney to assign his deputies and assistants as he sees fit. See Wis. Stat. § 978.03(1) & (3).

Also see State ex rel. Gibson v. H & SS Dept., 86 Wis.2d 345, 355, 272 N.W.2d 395 (Ct. App. 1978) (“In attempting to maintain the appearance, as well as the actuality of neutrality, there has long existed a distaste for ex parte communications while a case or hearing is pending. This concept has been codified in standard ten of Wisconsin’s Code of Judicial Ethics … .”).)

UPDATE: Above remarks ratified, 2008 WI 67, ¶48 n. 7:

We also note that Reddin’s actions in preventing Hipp’s witnesses from appearing are problematic. Before the January hearing, Reddin took it upon himself to advise the subpoenaed witnesses that they did not have to appear. Judge Murray concedes in his brief that Reddin’s actions were inappropriate. He states that Reddin should have instead filed a motion requesting Judge Murray to quash the subpoenas. We agree.The court of appeals expressed concern regarding Reddin giving, and Judge Murray’s willingness to receive, ex parte advice regarding Hipp’s ability to have subpoenas issued. It reminded “the bench and the bar” of the obligations presented by SCR 60.04(1)(g) and SCR 20:3.5(b) and the requirement that the behavior of the John Doe judge “should be such as not to impair his or her ability to make an independent determination of probable cause.” State v. Washington, 83 Wis. 2d 808, 824, 266 N.W.2d 597 (1978). We join with the court of appeals in its expression of concern.

As the court is well aware, a Doe proceeding isn’t adversarial. A Doe judge is, well, a judge; thus: “To the extent that circumstances arising in the John Doe investigation require the adjudication of adversarial motions or orders … the John Doe statute contemplates, and caselaw has consistently required, that the John Doe judge convene and act as a court,” In Matter of John Doe Proceeding, 2003 WI 30, ¶81, 260 Wis.2d 653, 660 N.W.2d 260. Why mention the obvious? Precisely because the court didn’t – which means that the court simply took as given that of course the Codes of Conduct apply, even if the proceeding is investigatory rather than adversarial; that is, the bar on proscribed contact will be given broad effect.

State v. Eugene D. Rhodes, 2008 WI App 32, PFR filed 1/15/08
For Rhodes: Joseph E. Redding

Issue/Holding: Counsel’s “forceful” advice that defendant enter a guilty plea wasn’t in and of itself a “fair and just” reason sufficient to require pre-sentencing grant of a motion to withdraw the plea:

¶11      Rhodes proffers his attorney’s “forceful advice” as the coercion present here. We reject such a contention. Defense counsel’s professional belief was that if Rhodes went to trial he would be convicted. This was based on the ruling that the detailed confession would be admitted and upon defense counsel’s investigation of potential alibi witnesses that simply did not pan out. Under such circumstances, a defense counsel would be remiss to advise a defendant to go to trial, knowing that a conviction was highly likely. Moreover, it was undisputed fact that after the “forceful advice,” defense counsel told Rhodes that whether to go to trial was ultimately his decision. Rhodes concedes this fact, but still elected to plead guilty.

State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989) distinguished (¶12): no showing the plea was entered hastily; trial court not persuaded by Rhodes’ claim of innocence; etc.

State v. Christopher S. Hoppe, 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a plea colloquy that merely established that the defendant was “satisfied” he understood “everything in the questionnaire and waiver of rights and the elements of the charges” sufficed under State v. Bangert, 131 Wis.  2d 246, 389 N.W.2d 12 (1986), given that the questionnaire covered these matters.

Holding:

¶14      … Here, the issue is whether, when the court incorporates the plea questionnaire into the colloquy, the contents of the plea questionnaire become an intrinsic part of that colloquy. We hold that it does.

…

¶16      That is precisely what occurred here. The plea questionnaire and waiver of rights form used here recited each constitutional right subject to being waived, and required that the box before each right be checked to signify an understanding that a plea would result in that right being relinquished. …

¶17      The form became State’s Exhibit Number 1 and was made part of the record. Judge Kennedy addressed Hoppe personally, as Wis. Stat. § 971.08 directs, and specifically invoked the plea questionnaire Hoppe had completed. The court ascertained that Hoppe had gone over the questionnaire with both attorneys; that he understood “everything in the questionnaire and waiver of rights and the elements of the charges you’re going to be pleading to,” and that a copy of the elements was attached; that Hoppe was satisfied he made a free, voluntary and intelligent plea with all of his rights in mind; that both attorneys were satisfied that Hoppe’s plea was free, knowing and voluntary; and that there was a factual basis for the plea. This colloquy, which establishes that Hoppe voluntarily and knowingly waived his constitutional rights, exceeds that in Hansen, where we deemed inadequate a plea colloquy limited to little more than asking the defendant if he had “gone over” the plea questionnaire with his attorney. See Hansen, 168 Wis.  2d at 755.

¶18      A plea questionnaire’s proper use can lessen the extent and degree of the colloquy otherwise required. See Hansen, 168 Wis.  2d at 755-56. AsMoederndorfer suggests, a written form both gives a defendant the opportunity to receive and digest critical information outside the courtroom’s possibly intimidating atmosphere, and aids the court in assessing the defendant’s understanding. See Moederndorfer, 141 Wis. 2d at 827-28. We do not interpret Howell or Brown as reading into Bangert, Moederndorfer or Wis. Stat. § 971.08 a requirement that, plea questionnaire in hand, the court must revisit the particulars of each item with a defendant, such as Hoppe, who has expressed his full understanding and gives the court no reason to believe that such is not the case. We thus say here what Moederndorfer only implies: a plea questionnaire is not outside the plea hearing; it is part and parcel of it.

The long and short of it: assuming the plea questionnaire accurately canvasses the required material, a colloquy establishing simply that the defendant went over and “understands” the questionnaire contents is adequate. The result should free up a lot of court time, otherwise taken up with the superfluous exercise of informing the defendant of the rights waived, elements necessary to the crime, direct consequences of the plea, etc. Whether this result is correct or not, one little procedural sticking point: the circuit court held an evidentiary hearing and denied relief on the merits, so why is the court of appeals getting its hands dirty with the irrelevant detail of whether a hearing should have been held? If this procedural issue hasn’t previously arisen in a Bangert setting, it has, underBatson; State v. George Melvin Taylor, 2004 WI App 81, ¶ 23 n. 5, holds that

once a neutral explanation has been offered, “and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis.  2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303.

In other words, the prima facie train already left the station, and the court of appeals had no business trying to board it. But board, commandeer, and return it to the terminal, the court did, and the price of a Bangert ticket to ride has just gone up. (Hoppe loses anyway, on the merits, because the trial court made credibility determinations against him, ¶¶28-24.)

State v. David A. Dearborn, 2008 WI App 131, affirmed, 2010 WI 84, ¶2 n. 3
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.

All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note, though: the court plainly means to apply the result to § 946.41, even if but glancing reference is made, ¶14 n. 5 (“These definitions of “resist” and “obstruct” are the same as those in the pattern jury instructions for Wis. Stat. § 946.41.”); and ¶17 n. 12 (“we do not intend to suggest there is a difference in meaning between the term “obstruct” in the two statutes, and we do not see any significant difference between the dictionary definition we employ here and the definition in Wis JI—Criminal 1766”). Anticipate, then, attempts to import this holding into § 946.41, notwithstanding that resisting (1765) and obstructing (1766) are embodied by entirely separate pattern instructions.

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue/Holding:

¶29 The State was required to prove three elements beyond a reasonable doubt to convict LaCount of securities fraud. First, the prosecution had to establish that LaCount sold Wills a security, here, an investment contract. Wis. Stat. § 551.41. Second, the prosecution had to prove that LaCount made an “untrue statement of a material fact or [omitted] to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they [were] made, not misleading . . . .” Wis. Stat. § 551.41(2). Third, the prosecution was required to prove that LaCount acted willfully. Wis. Stat. § 551.41. …

Issue/Holding:

¶30 We are satisfied that the State proved beyond a reasonable doubt that LaCount sold Wills a security, here, an investment contract. We are not persuaded by LaCount’s argument, which relied on the United States Supreme Court decision of SEC v. Edwards, 540 U.S. 389, 393 (2004), that Wills had to depend solely on LaCount’s efforts to realize a profit for the transaction to be an investment contract. In Edwards, the Court defined an investment contract for purposes of federal securities law. Id. LaCount’s argument fails because Wisconsin securities law is far broader in its definition of an investment contract than is federal law. Wisconsin courts have held that managerial efforts need not come only from the efforts of a person other than the investor. See Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 505 N.W.2d 408 (Ct. App. 1993). Specifically, Fore Way Expresscited the relevant section of the Wisconsin Administrative Code in holding that an investment contract was any “‘investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor.'” Id. at 712, citing Wis. Admin. Code § DFI 1.02(6)(a) (Dec. 2004).

¶31 We agree with the Fore Way Express court that an investor may have a role in the managerial efforts of an investment contract, so long as the investor does not provide the essential managerial efforts for the investment contract. Our holding today also is consistent with the Wisconsin Administrative Code, which defines an investment contract as “[a]ny investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor.” Wis. Admin. Code § DFI 1.02(6)(a) (Dec. 2004). The judge’s instructions to the jury in this case, as reflected in the record, were fully consistent with Wisconsin law. Furthermore, we are satisfied that Cohen’s testimony was consistent with Wisconsin law.

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶21      Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. ^[3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party’s failure to object.  State v. Mayo, 2007 WI 78, ¶29, 301 Wis.  2d 642, 734 N.W.2d 115. See also 7 Daniel D. Blinka, Wisconsin Evidence § 103.7 (2d ed. 2001). Plain error is “‘error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.'” State v. Sonnenberg, 117 Wis.  2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial.” Id. Courts should use the plain error doctrine sparingly. Id. For example, “‘where a basic constitutional right has not been extended to the accused,'” the plain error doctrine should be utilized. Id. (citing Virgil v. State, 84 Wis.  2d 166, 195, 267 N.W.2d 852 (1978) (Beilfuss, C.J., concurring); ” Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule.” State v. King, 205 Wis.  2d 81, 91, 555 N.W.2d 189 (Ct. App. 1996) (citing to a number of Wisconsin cases applying the plain error doctrine).¶22      However, “‘the existence of plain error will turn on the facts of the particular case.'” Mayo, 301 Wis.  2d 642, ¶29 (citing Virgil, 84 Wis.  2d at 190-91). …

¶23      If the defendant shows that the unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless. ^[4] Id. (citing King, 205 Wis.  2d at 93). …

---

 ^[4]  “It is also consistent with federal case law for us to use a harmless error analysis in determining whether to invoke the plain error doctrine.” State v. King, 205 Wis.  2d 81, 92, 555 N.W.2d 189 (Ct. App. 1996). See also United States v. Olano, 507 U.S. 725, 734 (1993). However, unlike the state of Wisconsin where the State holds the burden, in the federal system the burden is on the defendant to show that the error was harmless. King, 205 Wis.  2d at 93. The concurrence advocates for stating the specific language that federal courts use in their plain error doctrine analysis. Instead, the majority decision today incorporates existing Wisconsin case law on that issue in order to clarify Wisconsin’s plain error doctrine. See ¶¶21 and 22 of this opinion. While the concurrence questions what would qualify as fundamental and substantial error under the majority’s test, the federal doctrine, as espoused by the concurrence, raises the same question. The concurrence also asks whether a fundamental and substantial error can be harmless. Under our analysis, any error that satisfies the first prong of our plain error doctrine, i.e., any error that is fundamental, obvious, and substantial, must then undergo the second prong of whether that error is nonetheless harmless. Today we find that the errors constitute plain error. In this case, we are not presented with facts that satisfy the first prong but are harmless under the second prong. In a future case, however, an error may satisfy the first prong but nonetheless be deemed harmless under the second prong’s seven factor test, and thus, the error would not constitute plain error.

“… in the federal system the burden is on the defendant to show that the error was harmless.” Typo, obviously: the burden there is to show the error was prejudicial. The majority appears committed to a two-part plain error analysis: “fundamental,” etc., error; and if so, harmlessness nonetheless. As the court also suggests, plain error is generally limited to constitutional error, as in this case (¶33). Note, as well, that the trial found that the absence of objection was based on counsel’s sound strategy, ¶¶1, 7, 17—the supreme court nonetheless engages in plain error analysis (and for that matter grants relief) without so much as factoring this into the result. It’s hard to see this as anything other than dismissal of the relevance of any strategic basis for lack of objection, at least for purposes of plain error analysis. Perhaps that follows from the fundamental nature of “plain” error, but the court doesn’t say explicitly that that is so.