On Point

State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis

Issue/Holding:

¶24     We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State. Thus, his statements were voluntary. Despite the fact that the statements were voluntary, however, we cannot say that an intelligent waiver occurred. First, Rockette never personally indicated that he wished to waive his rights. Counsel could not do that for him by simply arranging a meeting with the police. See Hanson, 136 Wis. 2d at 213. Moreover, we cannot say that any purported waiver was knowing and intelligent. Rockette’s statements were clearly admissible for impeachment purposes, see Schultz, 152 Wis. 2d at 417-18, yet, by telling Rockette that whatever he said could not be used against him, his attorney led him to believe that his statement could not be admitted in court at all. Rockette obviously did not know and understand the potential consequences of making a voluntary confession to the police because his counsel gave him erroneous information.

Note, as a matter of potentially interesting contrast, Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004) to the effect that even a “woefully inadequate performance” by counsel in advising the client to waive Miranda rights in the pre-charging context isn’t cognizable on federal habeas review (because of the absence of clear Supreme Court precedent on the issue). But that case did not, unlike this one, involve the failure to administer Miranda rights.

State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: Hassel’s noncustodial statement, “I can’t talk to you,” did not amount to a Miranda-protected assertion of rights, largely because such rights can’t be invoked “anticipatorily,” ¶¶8-15. (State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982) distinguished as a rule of evidence safeguarding against substantive use at trial of prearrest silence.)

State v. Charles W. Mark, 2005 WI App 62, affirmed, 2006 WI 78
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶14 … (I)f probationers are required to choose between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent, the statements are compelled. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); State v. Evans, 77 Wis. 2d 225, 232-35, 252 N.W.2d 664 (1977). Such statements are inadmissible for any evidentiary use in criminal proceedings. State v. Thompson, 142 Wis. 2d 821, 833-34, 419 N.W.2d 564 (Ct. App. 1987).

See also U.S. v. Saechao, 9th Cir No. 04-30156, 8/12/05:

The issue on this appeal is whether a probationer who provides incriminating information to his probation officer in response to questions from that officer, and does so pursuant to a probation condition that requires him to “promptly and truthfully answer all reasonable inquiries” from the officer or face revocation of his probation, is “compelled” to give incriminating evidence within the meaning of the Fifth Amendment. Because we conclude that the state took the “impermissible step” of requiring the probationer “to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” Minnesota v. Murphy, 465 U.S. 420, 436 (1984), we hold that his admission of criminal conduct was compelled by a “classic penalty situation” and the evidence obtained by the probation officer may not be used against him in a criminal proceeding. We therefore affirm the district court’s order suppressing the fruits of the state’s unlawful conduct.

State v. Christopher Anson, 2005 WI 96, affirming, 2004 WI App 155
For Anson: Stephen J. Watson

Issue/Holding: Given a statement taken in violation of the Anson’s 6th amendment right to counsel, in which Anson admitted to facts underlying one of the charges and was prominently mentioned in the opening statements and “evidentiary phase of the trial,” and as to which he filed an unsuccessful interlocutory appeal asserting that admission of the statement would “strategically force” him to testify, the State failed to prove beyond reasonable doubt that Anson would have testified despite introduction of the statement, ¶¶43-56.

As to the underlying principle:

¶27. This issue is governed by Harrison v. United States, 392 U.S. 219 (1968).Harrison teaches us that when a defendant takes the stand in order to overcome the impact of illegally obtained and used statements, his or her testimony is tainted by the same illegality that rendered the statements themselves inadmissible. See State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986). If such is the case, the defendant does not waive his or her right against self-incrimination and the testimony should be suppressed. See id. at 316-17. The factual basis for such a finding, however, is for the trial court. See id. at 322.

¶28. Even where the trial court finds that the defendant would have decided to testify regardless of whether or not his or her statements had been suppressed, Harrisontells us it does not necessarily follow that the defendant’s testimony is purged of the taint of the underlying illegality. On the contrary, Harrison teaches us that the natural inference is that the defendant would not have taken the stand and repeated the damaging statements if the prosecutor had not already placed the statements before the jury. See Harrison, 392 U.S. at 225-26.

¶29. We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson’s testimony. See id. at 225. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson’s testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. See id. at 225-26. If the trial court finds that a link in fact exists between the State’s constitutional violation and Anson’s subsequent decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.

Arents v. ANR Pipeline Co., 2005 WI App 61

Issue/Holding: ¶5 n. 2:

Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case. “[F]acts must be stated with absolute, uncompromising accuracy. They should never be overstated — or understated, or ‘fudged’ in — any manner.” Judge William Eich, Writing the Persuasive Brief, Wisconsin Lawyer Magazine, Vol. 76, No. 2 (Feb. 2003). The fact section of a brief is no place for argument.Furthermore, in its cross-appeal, ANR’s fact section contains few citations to the record and, for the most part, cites only to its own appendix. This is also improper. Such failure is a violation of Wis. Stat. Rule 809.19(1)(d) and (3) (2001-02) of the Rules of Appellate Procedure which requires parties to set out facts “relevant to the issues presented for review, with appropriate references to the record.” (Emphasis added.)

State v. Christine M. Quackenbush /  State v. Michael D. Lee, 2005 WI App 2
For Quackenbush: Tyler J. Tripp
For Lee: Thomas F. Locante, SPD, La Crosse Trial
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue¹: Whether, in light of State v. Iran D. Evans, 2004 WI 84, the court of appeals retains any authority under § 809.82 to extend the time for filing a notice of intent to pursue postconviction relief. Holding¹:

¶9. On its face, Evans is concerned only with extensions of the time to file a postconviction motion, when the ground for the motion could be construed as ineffective assistance of appellate counsel. The question, then, is whether Evans should be extended to bar extensions of the time to file a notice of intent to pursue postconviction relief, when the ground for the motion could be construed as ineffective assistance of trial counsel. We conclude that it should not be, and therefore we decide these motions by using the “good cause” standard provided in Wis. Stat. Rule 809.82. Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects.

Issue/Holding²:

¶11. In Evans, the supreme court noted that this court “’has a generally lenient policy about granting extensions that will enable a criminal defendant to prosecute an appeal.’” Evans, 273 Wis. 2d 192, ¶38 (citation omitted). We agree with this assessment, at least with respect to extensions sought within a limited period of time after the deadline for filing a notice of intent has passed. Although the court has not established firm guidelines for deciding extension motions, the judges of this court generally consider a number of factors in deciding whether to grant an extension. The longer the extension that is sought, the greater the showing that is generally required to satisfy us that there is good cause for granting it.…

¶14 Factors that we may consider in granting an extension for the filing of a notice of intent under Wis. Stat. Rule 809.82(2)(a) include the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant’s request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. When deciding extension requests, we also seek to screen out defendants who have simply changed their minds after experiencing confinement or after having their probation revoked, especially if a significant amount of time has elapsed since the conviction, and we consider the need of crime victims and the public for finality in criminal adjudications. These factors are not intended to be exhaustive, but merely to provide sense of the factors we consider when acting on extension requests.

¶15 Defendants who can establish that they were deprived of their statutory right to direct appellate review of their criminal convictions because of ineffective assistance of counsel are entitled to have their direct appeal rights reinstated, regardless of the presence or absence of other factors. …

…

¶17 … If counsel’s error in commencing the postconviction process causes deprivation of the entire process, prejudice is presumed. …

The message is clear enough: Evans didn’t really alter the postconviction landscape, except where appellate counsel screwed up. Given that trial counsel is responsible for filing the notice of intent, then, it ought to be the rare case in which the court of appeals lacks authority to extend the deadline. And although there appears to be something like a predisposition to grant extension in the routine case, the court is equally clear that the longer the delay the greater the likelihood of resistance. Results in the cases at hand: in one instance, a 3+-month extension is granted, because “the length of the extension sought is not unreasonable [and] counsel states that the delay is not attributable to the defendant,” ¶24; and in the other, a 1-day extension granted, given “an apparently good-faith admission of error by trial counsel” in filing the NOI, ¶25.

On the related if somewhat tangential issue of trial counsel’s constitutionally required duties with respect to filing the NOI, see generally Frazier v. South Carlina, 4th Cir No. 04-6500, 12/8/05 (decision as to whether to appeal is defendant’s so that if s/he specifically requests it, counsel must commence an appeal; and, where the defendant hasn’t specifically requested an appeal, counsel must ordinarily consult with the client on this decision).

State v. Keith E. Williams, 2005 WI App 122
For Williams: Christopher William Rose

Issue/Holding: The court of appeals has authority to extend the defendant’s deadline for filing cross-appeal to State’s appeal of postconviction grant of new trial:

¶4        However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). Williams’s right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30. The time for a person ^[3] to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended. See State v. Harris, 149 Wis.  2d 943, 946, 440 N.W.2d 364 (1989). The filing of a notice of cross-appeal is a continuation of the pursuit of postconviction relief under Rule 809.30. Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended.

¶5        Applying the same procedures to the defendant’s right to appeal and to cross-appeal comports with due process. See Harris, 149 Wis. 2d at 947 n.5.  It also preserves the defendant’s constitutional right to raise possible error on appeal. See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) (“Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.”).

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 ^[3]   Wisconsin Stat. Rule 809.30(1)(b) defines “person” to be a defendant seeking postconviction relief in a criminal matter and does not include the State.  The State’s time to appeal in a criminal matter may not be extended.

The court goes on to find, without discussion, good cause for the extension (¶6). The court merely notes, somewhat cryptically (¶2), Williams’ position “that it recently became apparent that a cross-appeal is necessary to obtain review of other issues in the event the circuit court’s decision granting a new trial is reversed.”