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Due Process – Identification Procedure – Show-up

by on June 21, 2005

State v. Tyrone L. Dubose, 2005 WI 126
For Dubose: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the test for admissibility of a pretrial showup should be changed. (“A ‘showup’ is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.” ¶1, n. 1, quoting State v. Wolverton, 193 Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995).)

Holding:

¶2 We agree with Dubose that the circuit court erred in denying his motion to suppress the out-of-court identification evidence. However, we decline to adopt his proposed per se exclusionary rule regarding such evidence. Instead, we adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court’s decision in Stovall v. Denno, 388 U.S. 293 (1967). We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. Since the motion to suppress the out-of-court identifications of Dubose should have been granted here, because such identifications were unnecessarily suggestive, we reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings consistent with the standards adopted herein….

¶33      With Stovall as our guide, we now adopt a different test in Wisconsin regarding the admissibility of showup identifications. [9] We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification. See Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. of Personality & Soc. Psych. 525, 527 (1993). In a showup, however, the only option for the witness is to decide whether to identify the suspect. [10] See id.

¶34      We emphasize that our approach, which is based to some extent on the recommendations of the Wisconsin Innocence Project, is not a per se exclusionary rule like Dubose requests. Showups have been a useful instrument in investigating and prosecuting criminal cases, and there will continue to be circumstances in which such a procedure is necessary and appropriate. [11]

¶35      If and when the police determine that a showup is necessary, special care must be taken to minimize potential suggestiveness. …

…

¶38     On remand, we recognize that the exclusion of evidence of the out-of-court identifications “does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source. And properly conducted pretrial viewings can still be proven at trial and, would be encouraged by the rule prohibiting use of suggestive ones.”  People v. Adams, 423 N.E.2d 379, 384 (N.Y. 1981). … The court may uphold any in-court identification if the circuit court determines that it “had an origin independent of the lineup or was ‘sufficiently distinguishable to be purged of the primary taint.'” State v. McMorris, 213 Wis. 2d 156, 175, 570 N.W.2d 384 (1997) (quoting Wade, 388 U.S. at 241). In other words, if the circuit court determines that any in-court identification of Dubose was not tainted by out-of-court identifications, then the conviction should stand. “[T]he in-court identification is admissible if the State carries the burden of showing ‘by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the [out-of-court] identification.'” McMorris, 213 Wis. 2d at 167 (quoting Wade, 388 U.S. at 240.

[10] “‘There is a great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement.'” State v. Cromedy, 727 A.2d 457, 463 (N.J. 1999) (citation omitted).
[11] An example of this would be when the police apprehend a suspect during a Terrystop. If that person is suspected of committing a crime, but the police do not have the requisite probable cause to arrest and then to conduct a lineup or photo array, a showup could be considered necessary.

To the extent the decision reasserts the self-evident idea that a showup is inherently suggestive, its reformation of identification law is probably just incremental – see, e.g., U.S. v. Newman, 144 F.3d 531, 535 (7th Cir. 1998) (“We have noted many times that a show-up identification, in which witnesses confront only one suspect, is inherently suggestive and should be employed only if compelled by extraordinary circumstances”); Rodriguez v. Young, 906 F.2d 1153, 1162 n. 6 (7th Cir. 1990) (“Showups, however, will almost always lead to undue suggestion”); Brisco v. Phillips, 2005 U.S. Dist. LEXIS 14181 (E.D. N.Y. 7/16/05) (quoting LaFave, to effect that a showup is “the most grossly suggestive identification procedure now or ever used by the police”). However, the change is much more profound than that. Indeed, the decision is as noteworthy for what remains unresolved as for what it does say. Here are some of the more obvious points that will require clarifying litigation:

  1. Fourth amendment concepts. By holding that probable cause to arrest renders a showup “unnecessary” the court has seemingly imported into due process reliability analysis 4th A principles that ultimately exclude perfectly reliable evidence. (This point is made, somewhat discordantly, by one of the very authorities cited by Dubose, People v. Adams (rule suppressing showups and their derivative evidence “different in purpose and effect from” suppression rule relating to illegal searches and seizures). Maybe this makes sense, maybe it doesn’t, but it’s going to create a host of analytical problems, beginning with the idea that there isn’t a clearly marked border between reasonable suspicion and probable cause. See, e.g., U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (“the line between a lawful Terry stop and an unlawful arrest is not bright”). Should, then, the courts give benefit of doubt to the police in close cases? Maybe, but that’s hard to square with the court’s skepticism about eyewitness IDs (¶¶29-31). And that skepticism creates a real conundrum, one that, to be frank, the majority simply ignored but was adduced by the dissent with brutal efficiency: “the majority opinion provides those suspects for whom law enforcement has less evidence of guilt with less constitutional protection when that person comes to trial,” ¶87. Or, to put the matter this way: a showup doesn’t become any more accurate simply because it’s necessary; rather, a showup may be necessary despite its inherent problems. Systemic costs of unreliable evidence (conviction of the innocent; letting the guilty go unpunished; loss of public confidence, etc., etc.) very strongly suggest that all doubt be resolved against necessity, otherwise you’re just encouraging the use of unreliable evidence. And what this means is perhaps a sort  of hydraulic pressure on lower courts to find that maybe the police had reasonable suspicion but they didn’t have PC, so the procedure was “necessary.” And what if the suspect “consents” to the showup (even if the police had ample PC but did not, within the meaning of State v. Swanson, place the suspect in custody tantamount to arrest)?
  2. Burden of proof. Who has the burden of proving what, and by what standard? You won’t find the answers in the opinion. Necessity is inextricably bound up in search & seizure law, which is to say, whether the police had PC to arrest (if so, the showup was unnecessary; if not, then presumably necessary). The State has the burden of proving PC for a (warrantless) arrest. It makes no sense to require the defendant to prove PC to arrest when that’s paradigmatically a matter of State’s proof. Besides, just on a practical level it’s not fair; the State’s going to have access to records such as police logs that the defendant may not. In other words, the entanglement of 4th A (PC to arrest) with due process (reliability of ID) law has significant procedural implications. The burden ought to be on the State to prove the showup necessary. Yet, it’s not quite that simple, because the typical 4th A stances will be inverted: the defendant will seek to show that the police did have PC, the State that they didn’t. And, what happens when the defendant also raises an illegal-arrest argument? (Of course, identification evidence may be suppressible if derived from an illegal seizure, e.g., State v. Walker, 154 Wis.2d 158, 185-88, 453 N.W.2d 127 (1990).) Both sides will have to argue in the alternative: the defendant that the showup was unnecessary because there was PC for arrest, but maybe there wasn’t PC and the ID should be suppressed as fruit of an illegal arrest. None of this is, to use a word, necessrily bad. The net effect may be to halt the steady erosion of the test for probable cause. It’s just the practitioner will have to be sensitive to the potential for role-reversing sort of argumentation.
  3. Other ID procedure.
    • In-court ID. Why is an in-court ID any less inadmissible (because suggestive) than a showup? For one thing, an in-court ID is a showup, for that matter is even more of a set-piece. The accusatory machinery of the State, not the mere investigatory efforts of a handful of its agents, is now formally arrayed against the lone individual sitting in the defendant’s chair. How is that meaningfully distinguishable from a pretrial “procedure in which a suspect is presented singly to a witness for identification purposes”? And just how is such an undeniably suggestive procedure necessary, at least as defined byDubose? By the time it gets to trial, the case has long since passed through PC filters finer than that needed for arrest. The logic of Dubose inexorably rules out in-court IDs. Ought to, anyway, though the court plainly doesn’t seem to think so. (See below, re: reservation of admissibility of in-court ID notwithstanding unnecessarily suggestive showup.)
    • Line-ups and photo arrays. These are, the court says, “generally fairer than a showup,” ¶33, and it seems pretty obvious that the decision is meant to deter the use of showups so as to encourage use of  lineups and arrays. And yet, it’s not as if the court seems quite sold on these alternative, putatively “fairer” procedures, either. To the contrary, the court appears skepical of any eyewitness ID. Thus, the court laments “that eyewitness testimony is often ‘hopelessly unreliable,” ¶30, such that “it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and indetifications that were unreliable,” ¶31. Not quite a ringing endorsement. And so, the court’s generalized skepticism could reflect an inclination toward much more exacting scrutiny of fairness in lineup / array procedures. The court may well accept intimations of suggestiveness that would have been summarily dismissed before. In short, the court’s tolerance for any suggestion of suggestiveness appears to have undergone a sea-change.
    • Nor should any of this agonizing over mistaken IDs (cross-racial or not) be limited, of course, to suppression issues. Whether expert testimony and jury instructions are affected by Dubose will simply have to be played out. See, e.g, State v. Ledbetter, 275 Conn. 534; 881 A.2d 290 (2005) (court invokes supervisory authority to “direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure.” (Text of instruction follows, in linked opinion file.); Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) (“In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as ‘the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,’ we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification”).
  4. Taint analysis. What happens when you prove unnecessary suggestiveness (or, perhaps, the State fails to prove necessity), so that the showup is suppressed? The court says that in-court ID is nonetheless permissible, if “based on an independent source,” that is, if the State proves that the ID is based on observations “other than” the showup, ¶38, citing State v. McMorris. The court thus confidently implies that a reliable, admissible ID may well follow the taint of a showup. This part of the holding is a bit terse but the only reasonable reading is that the court is uncritically adopting McMorris and its 7-factor test for attenuating the taint of a Wadeviolation (denial of counsel at a post-charge lineup), ¶26. This approach could prove seriouslyflawed: “independent source” analysis is suitable for 4th amendment taint analysis, asMcMorris expressly recognizes, and makes sense when the goal is to deter police practices that, though improper, lead to reliable evidence, while the goal in this context is to suppressunreliable ID evidence. These are not necessarily compatible goals, and do not necessarily lead to compatible analyses. Does the mere fact that a lawyer isn’t at a lineup make the procedure unreliable? Of course not; the lineup is still reliable, it’s just that we want to discourage the practice of excluding counsel from the procedure. The 7 McMorris attenuation-factors, then, are more or less aimed at determining whether the witness could have ID’ed the person anyway, given that the lineup wasn’t suggestive or otherwise unreliable. But these factors have little if anything to do with a suggestive and therefore presumptively unreliable ID. (The whole idea, if you take the opinion literally, as you must, is that a showup creates grave risk ofirreparable misidentification; in the rare instance where some exigency is present, then that risk is presumably overridden.) The importation of 4th amendment law into this context may prove ill-advised. Still, the meta-message is that the court is now very receptive to arguments based on deterrence of illicit police practices.
  5. Relevant research. Dubose relies heavily on scientific research on eyewitness identifications, see, e.g. ¶35. Defense lawyers now have a responsibility to be fully aware of that research, and the various model guidelines on eyewitness identification promulgated by such organizations as the Wisconsin Department of Justice, the Avery Task Force, and the National Institute of Justice. Counsel should be arguing that, any time police deviate significantly from those guidelines, and where the deviation cannot be justified by some “necessity,” the identification procedure was unnecessarily suggestive and hence inadmissible.

But: see State v. Forest S. Shomberg, 2006 WI 9 ¶17 (expert testimony re: frailties of ID probably admissible by today’s, Dubose-type standards, but exclusion upheld under 2002 standards).

 

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Enhancement – OWI Prior, Collateral Attack – Procedure

by on June 21, 2005

State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen

Issue1: Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.
Holding1:

¶25      … For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “did not know or understand the information which should have been provided” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis.  2d 379, ¶46 (citing Bangert, 131 Wis.  2d at 274-75).  Any claim of a violation on a collateral attack that does not detail such facts will fail.

¶26      Applying the above principles to the facts of this case, we hold that Ernst’s attempt to initiate a collateral attack failed. … Ernst made no mention of specific facts that show that his plea was not a knowing, intelligent, and voluntary one.  Instead, Ernst simply relied on the transcript and asserted that the court’s colloquy was not sufficient to satisfy Klessig. … Since this was a collateral attack, the lack of specific facts resulted in a failure to establish a prima facie case that Ernst did not knowingly, intelligently, and voluntarily waive his right to counsel. …

Issue/Holding2: If the defendant does make a prima facie showing, then the procedures authorized by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) apply: the burden shifts to the State to prove by clear and convincing evidence that waiver of counsel was knowing, intelligent and voluntary, ¶27; the defendant may be questioned at the ensuing evidentiary hearing, ¶¶30-31; any 5th amendment claim of privilege against testifying at such a hearing is waived by putting the matter of knowledge of rights at issue, ¶33; if the defendant refuses to testify, the trial court may draw an adverse inference, ¶35.

As a casual aside, the court asserts, ¶33: “To make a prima facie showing a defendant is required to point to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. An affidavit from the defendant setting forth such facts would be necessary, in order to establish a prima facie case.” Assuming that this is not a slip (and it would be very unwise to make such an assumption), this requirement of an affidavit from defendant substantially deviates from current pleading practice: contrast this explicit requirement of an affidavit, with past indications that the defendant need “merely allege he or she did not know or understand the information that should have been provided at the plea hearing,” State v. John A. Jipson, 2003 WI App 222, 2003 WI App 222, ¶7, 267 Wis. 2d 467, 671 N.W.2d 18, citing Bangert, 131 Wis. 2d at 268-69; and to like effect, see generally, State v. Corey J. Hampton, 2004 WI 107. The court currently has on its calendar a Bangert sufficiency-of-pleading case, 2003AP2662-CR, State v. James E. Brown, rev. gr. 6/1/05 – perhaps that case will provide some clarification. In the meantime, though, you ignore ¶33 at your peril.

One additional point worth mentioning: can the State, under the guise of wide-open cross rule, examine the defendant on a range of incriminatory matters and then use that material at the ensuing trial? The court’s broadly stated waiver language is certainly worrisome if taken at face value. Fortunately, you don’t have to take the language at face value, because § 901.04(4) explicitly limits the wide-open cross rule when the defendnat is testifying as to a “preliminary matter,” as this surely is. And though it is therefore not necessary to go further, note as well the court’s express analogy to State ex rel. Goodchild v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965), and its recognition that “the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances” of the matter in controversy, ¶31 n. 10. Stress, of course, on “limited purpose,” which ought to be something of a counter-weight against the wide-open cross rule.

 

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Warrants – Good-faith Exception – “Indicia” of Probable Cause, Generally

by on June 21, 2005

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The good-faith exception is inapplicable when indicia of probable cause are so lacking as to render official belief in its existence unreasonable. This inquiry is distinct from the question of whether the supporting facts are clearly insufficient.

¶33      Under Leon‘s rationale, sufficient “indicia” of probable cause refers to more than the fact that one or more judges have approved and signed the warrant. “[I]t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23 (footnote omitted). The exclusionary rule will apply when “a reasonably well trained officer would have known that the search warrant was illegal despite the magistrate’s authorization.” Id. at 922 n.23.

¶34      In short, the very point of the third Leon circumstance is that the good faith exception will not apply when the warrant is based on an affidavit so lacking in indicia of probable cause that a law enforcement officer——who ordinarily should not be expected to second-guess the warrant-issuing judge——can be said to have unreasonably relied on the warrant.

Three other potential circumstances also avoid the exception under the Leon test (see ¶25), but insufficient indicia of probable cause is the only one raised by Marquardt or discussed by the opinion. As construed by this decision, the test appears to be less than exacting. The prior court of appeals decision held that the warrant lacked probable cause; this isn’t enough: “an ‘indicia’ of probable cause is not the same as a probable cause determination. Rather, the standard for ‘indicia’ is less demanding. It requires sufficient signs of probable cause, not probable cause per se,” ¶37. Wisconsin imposes two other requirements before good faith is triggered, State v. Eason, 2001 WI 98, ¶74, 245 Wis. 2d 206, 629 N.W.2d 625, but only one is at issue in this case: that the warrant was based on a “significant investigation.”

 

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Warrants – Good-faith Exception – Sufficient Indicia of Probable Cause

by on June 21, 2005

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The search warrant was supported by sufficient “indicia of probable cause” to trigger the good-faith exception, including the following: Marquardt had not been seen for two days following his mother’s homicide, raising suspicion about his absence; the victim was covered in a blanket, raising an inference that the perpetrator was familiar with, and remorseful about, the victim; there was no indication of burglary or sexual assault, suggesting that the victim knew her killer, ¶¶39-44.

To gauge how thin this showing truly was, consider the 2-Justice dissent’s point (¶¶83-84) that the most the supporting affidavits showed was that Marquardt was missing for two days, but that an adult son’s 2-day absence hardly supplies indicia of probable cause that he killed his mother. As to the blanket covering up the body: “The majority cites no study, no peer-reviewed article, no text, not even a TV crime show or an article in a popular magazine to show that such a theory is either legitimate or has gained common knowledge or use,” ¶85. That is, no linkage—none—to Marquardt.

 

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Arrest – Search-Incident, Generally

by on June 18, 2005

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search), it is not necessarily fatal that the search-incident preceded formal arrest.

This lesson has been drummed into our heads for decades now: arrest is determined under purely objective standards; long as the officer did something that can be characterized as tantamount to arrest, and long as that act was supported by probable cause, it just doesn’t matter s/he thought s/he was doing. The matter of timing of search in relation to arrest might be more complex, but the court doesn’t have much beyond abstract principle to say on this subject anyway, so we ought simply note it as a potential problem area and let it pass. Still … there is indeed more to be said, and the Chief says it in dissent, in a typically efficient and elegant manner, ¶¶37-48. Search-incident is circumscribed by the wonderfully self-descriptive “wing-span” rule. The dissent argues persuasively that Sykes’ property was well outside the reach of his wing-span, and thus searching it can’t possibly be justified under a search-incident rationale. The majority determines that it need not reach this issue, ¶21 and id., n. 6; whether or not that determination is procedurally sound is of no moment: just be sensitive to this rule and assert it when necessary.

 

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Grounds — Abandonment by Biological Parent, Occurring Prior to Adjudication as Parent, as Ground for Termination, §§ 48.02(13), 48.415(1)(a)3

by on June 15, 2005

State v. James P., 2005 WI 80, affirming, 2004 WI App 124

Issue: Whether biological father’s parental rights could be terminated on the ground of “abandonment” where he was not adjudicated as father until after alleged periods of abandonment.

Holding:

¶15 We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of “parent” in § 48.02(13), as he is a “biological parent,” notwithstanding that he has not officially been adjudicated as the child’s biological father. Because such an individual satisfies the definition of “parent,” he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child’s biological father, assuming he has failed to establish a “good cause” affirmative defense to the ground of abandonment.

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Competency of Court and Time Limit, § 48.422(2)

by on June 15, 2005

Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.

Holding:

¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court.  The court of appeals erred in extending the holding in Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of such a mandatory statutory time limitation under Wis. Stat. ch. 48. The circuit court did not hold the fact-finding hearing within the time limits established by § 48.422(2), and never granted a proper extension or continuance pursuant to Wis. Stat. §§ 48.315(1)(a) and (2), [2] and thus it lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. Accordingly, we reverse the decision of the court of appeals, which had affirmed the order of the circuit court.…

¶31      We also conclude that recent changes to the Children’s Code do not affect our decision in this case, nor did the changes overrule B.J.N. and April O. sub silentio….

…

¶36     Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children’s Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315. In this case, for example, the court perhaps could have granted a continuance if it had recognized good cause for the delay in open court or during a telephone conference on the record. Without such action, however, there is no choice for us but to follow the plain language of the statutes, and to hold that the court lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. …

[2] “The general requirements of § 48.315(2) control all extensions of time deadlines under the Children’s Code.” State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927.

Wisconsin Stat. § 48.315(2) states: “A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.”

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Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements for Evidentiary Hearing on Bangert Motion Relative to Nature of Charge

by on June 13, 2005

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶59      To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing. …

…

¶62      We share the State’s concern that this motion does not allege directly that the defendant did not know or understand certain information that should have been provided or addressed at the plea hearing. A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.

…

¶66      In this case, defense counsel persuasively documented deficiencies in the plea hearing transcript, but the motion did not allege directly that the defendant did not understand the nature of the charges against him. Counsel explained his decision not to submit an affidavit from the defendant or himself, but he did not explain why the defendant could not plead that he did not understand the nature of the charges. We are required to infer such an allegation from the totality of the motion. In this case, we accept counsel’s representations that the defendant lacked understanding about the charges and that the defendant’s “testimony will make this clear beyond dispute.”

¶67      In the ordinary case, defense counsel should plead with greater particularity a defendant’s lack of understanding. A defendant must identify deficiencies in the plea colloquy, state what he did not understand, and connect his lack of understanding to the deficiencies. See Hampton, 274 Wis.  2d 379, ¶57; State v. Giebel, 198 Wis.  2d 207, 217, 541 N.W.2d 815 (Ct. App. 1995). This procedure should prove fair to both parties.

The quoted language disturbs, in its suggestion of a requirement to “connect his lack of understanding to the deficiencies.” Neither case cited supports that proposition. In fact, Hampton, ¶57, stands for just the opposite; and Giebel merely says that the defendant failed to allege he didn’t know or understand the omitted information, hence fell short of his pleading requirement. If that were all, it might be enough to ascribe the phrase to a bout of imprecision. But that characterization is bit tougher to make given the court’s repetitive usage, “a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing,” which includes stress on “because.” And yet … the court upholds Brown’s motion which did not itself make any such connection between  ignorance of omitted information and decision to plead guilty. Moreover it simply isn’t conceivable that the court would cite without any explanation authorities that undermined rather than supported the principle. It is even less conceivable that the court overrule its own relatively recent decision, Hampton, in such a manner. Note, too, that Bangert(which is, after all, now being “revitalized,” ¶58) requires no such connection. Take similar account as well of State v. Kenneth V. Harden, 2005 WI App 252, ¶5 (“While some language in Bartelt was subsequently withdrawn in Bangert, [1] the holding that a defendant need not show that the misinformation ‘caused’ the plea has never been withdrawn. The precedent is binding on this court.”) Best then, not to make much of the language, potentially worrisome though it might be.

 

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