On Point

Village of Muscoda v. Samuel R. Anderson, 2012AP2216, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police had probable cause to administer a PBT where: the officer noticed an odor of intoxicants emanating from Anderson or his vehicle; Anderson had bloodshot eyes and slightly slurred speech and admitted he had consumed five drinks over the course of the night; and Anderson’s performance on the walk-and-turn and one-leg-stand tests suggested he might be intoxicated. (¶¶2-4, 8-10). The lack of erratic driving, the possibility that Anderson’s eyes were bloodshot and his speech was slurred for reasons other than intoxication, and the minimal clues from the field sobriety tests do not change that result. (¶¶11-13).

Further, the court holds numeric result of the PBT is admissible to establish probable cause for arrest under§ 343.303, rejecting Anderson’s argument that the  definition of “result” under Wis. Adm. Code § Trans 311.03(12) and (13) allows only the admission of the fact the test showed the presence of alcohol:

¶16      …. The language of § 343.303 plainly states that a law enforcement officer may administer a PBT and rely on the PBT result in court to demonstrate probable cause for an arrest, where a defendant challenges the arrest, as in this case. We observe that the statute makes no reference to the administrative code to define “result” and thus Anderson’s attempt to narrow the meaning of “result” as a qualitative measure lacks support in the statute.  In addition, the only reasonable reading of the term “result,” when read in context of the entire statute, is as a measure of the amount of alcohol in a person’s blood at the time the test was administered.  Anderson’s narrow reading of “result” renders meaningless the use of a PBT result for the purpose of determining probable cause for arrest. Even Anderson points out on appeal that using the PBT result for the narrow purpose of ascertaining whether alcohol is present in a person’s blood only duplicates what an officer can readily observe from smelling a person’s breath or checking for slurred speech and bloodshot eyes.  To give meaning to the term “result,” we conclude that the legislature intended for the numeric result of a PBT to be admissible at a hearing to establish probable cause for an arrest, where the defendant challenges the arrest.

State v. Leshurn Hunt, 2010AP2516, District 4, 5/16/13 (not recommended for publication); case activity

Issue:  Was defendant’s decision not to testify at trial knowing, intelligent and voluntary on the grounds that; (a) the court conducted a defective colloquy; (b) the defendant was coerced to waive his right to testify; and (c) the defendant received ineffective assistance of counsel?

Holding:  Hunt’s waiver was fine.  The legal test is set forth in State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434, 666 N.W.2d 485: “The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel.” “The colloquy should be simple and straightforward exchange between the court and the defendant outside the presence of the jury.”  Id., ¶41.

Hunt argued that the trial court violated Weed‘s “simple and straightforward” requirement because proceedings weren’t simple or straightforward.  Initially, Hunt intended to testify, so the court conducted a colloquy focused on that intent.  Then Hunt changed his mind, but the court did not conduct a new colloquy on Hunt’s waiver of the right to testify.  The court of appeals found the colloquy that was conducted met Weed‘s requirements.  It noted that Weed did not “establish a rule on the proper method of conducting the colloquy,” and Wis JI-Criminal SM-28 suggests sample questions for the inquiry, but not requirements.  Slip op., ¶18.

[C]ourts must have the flexibility when conducting a waiver colloquy to allow the opportunity for defendants to ask follow-up questions, as was the case here, and to afford the court an opportunity to explain in greater depth the constitutional rights at issue and the consequences of waiving those rights to ensure that the decision on whether to testify is knowing, intelligent, and voluntary. Id.

As for Hunt’s coercion claim, based on an alleged “combination of judicial error, prosecutorial tactics, and . . . trial counsel’s performance,” the court of appeals rejected it.  Apparently, the prosecutor, defense counsel, and the judge engaged in several discussion about what Hunt could testify to, and how the State could impeach him.  According to the court of appeals, hey were “typical of exchanges that take place during a jury trial. None . . . could be reasonably viewed as misleading, inaccurate or confusion.”  Id. ¶26.  The fact that they influenced Hunt’s decision not testify does not demonstrate coercion.

Finally, Hunt’s assertion that his trial counsel’s ineffective assistance an unknowing and involuntary waiver failed too due to the undeveloped nature of the argument.  Id., ¶¶30-31.

State v. Travis M. Ranta, 2012AP1663, District 4 (1-judge, ineligible for publication); case activity

Police were called to a campsite where the defendant admitted to drinking with underage individuals.  An hour later, another officer was called to the same site, where he observed the defendant behaving in a “belligerent, uncooperative [and] loud” manner.  A PBT showed the defendant had a .156 BAC, so he was informed that he couldn’t drive his truck out of the campsite.  That ticked him off.  An hour later, the second officer saw the same truck speeding down the road at twice the speed limit.  He stopped the truck, determined that the defendant was driving, and saw that he had blood shot eyes and smelled of alcohol.  The officer administered 3 field sobriety tests, and the defendant passed them, though he did exhibit 3 clues of intoxication.  So the officer administered a 2nd PBT, which showed a BAC of .11, and then arrested the defendant for OWI.

Issue/Holding: Did the arresting officer have probable cause to administer the second PBT?  The answer is “yes.”  ” To determine whether an officer had ‘probable cause to believe,’ we consider the totality of the circumstances known to the officer at the time the PBT was administered, taking into account the officer’s training and experience.  See State v. Kutz, 2003 WI App 205, ¶¶11-12, 267 Wis. 2d 531, 671 N.W.2d 660.” ¶10.  Based on the facts above–plus the fact that the arresting officer had been told the results of the first PBT and knew that alcohol dissipates from a person’s blood stream at a rate of .02 per hour–he had probable cause to administer the second PBT to the defendant.  According to the court, successful completion of field sobriety tests does not preclude a PBT.  The officer must a take a “common sense view of the fact based on a totality of the circumstances.  State v. Felton, 2012 WI APP 114, ¶10.  He appropriately relied on the hearsay results of the 1st PBT.  An expert is not needed to testify about the rate of alcohol dissipation.  The arresting officer’s training and knowledge is sufficient. Kutz, 267 Wis. 2d 531, ¶12.

State v. Aaron S. Loos, 2012AP2154-CR, District 3, 5/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Though Loos was convicted of one misdemeanor and one felony at the same time, the maximum one-year term of probation for the misdemeanor under § 973.09(2)(a)1r. could not be increased by one year under § 973.09(2)(b)2. That statute may be applied only to increase the maximum term of probation on a felony conviction, not a misdemeanor conviction. State v. Reagles, 177 Wis. 2d 168, 171-76, 501 N.W.2d 861 (1993), § 973.09(2)(b)2. Thus, the term of probation for the misdemeanor must be reduced from two years to one year. (¶¶9-12).

After Loos moved for postconviction relief, his probation was revoked and he was sentenced to jail on the misdemeanor. (¶¶4-7). He argued that his sentence after revocation must be vacated because revocation proceedings did not begin until after the expiration of the maximum allowable one-year term of probation. The State does not respond to this argument, so the court deems it conceded. Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded). Accordingly, the jail sentence imposed after revocation must be vacated. (¶13).

Given the state’s concession, the court does not detail the basis for vacating the sentence beyond noting that revocation proceedings commenced over one year after Loos was placed on probation.  (¶¶5, 13). In a nutshell, unless DOC acts under § 304.072(1) or (3) to toll probation or preserve jurisdiction (by commencing an investigation, issuing a violation report, or issuing an apprehension request concerning an alleged violation prior to the expiration of probation), it no longer had jurisdiction to supervise or revoke; that, in turn, means the court had no jurisdiction to sentence. State v. Stefanovic, 215 Wis. 2d 310, 319, 572 N.W.2d 140 (Ct. App. 1997); Bartus v. DHSS, 176 Wis. 2d 1063, 1082-83, 501 N.W.2d 419 (1993).

State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:

• Failing to introduce C.A.’s attendance records: C.A. testified the the assaults occurred on three days “right in a row” and “three straight days” in “the 20’s of May,” but trial counsel’s failure to introduce records showing she was not in school on three consecutive calendar days in that period was not prejudicial because the records show she was in attendance three consecutive school days and the jury could reasonably have concluded she meant three straight school days, not calendar days. (¶¶14-16).
• Failing to impeach C.A. with her preliminary hearing testimony regarding the duration of the assaults: C.A.’s description of the duration at the prelim  (“two seconds”) differed from her trial testimony (“a minute”), but the differences were so “minute” that it would not have caused the jury to doubt her credibility. (¶¶17-19).
• Failing to present evidence that C.A. was exposed to sexually explicit terms via her peers: C.A.’s use of sexually explicit terms to describe the assaults was not to corroborate them based on words she learned from Howlett, but to describe his behavior. Because it was her detailed description of the assaults that persuaded the jury, evidence of where C.A. learned the explicit language would not affect the reliability of the verdict. (¶¶20-22).
• Failing to object to leading questions put to the investigating officer and to hearsay in the officer’s testimony: Assuming counsel was deficient for not objecting, the officer’s testimony was not prejudicial because it did not create an impression the officer endorsed or believed C.A.’s testimony, and the hearsay, which consisted of repeating C.A’s allegations, was “too brief” to reinforce C.A.’s own detailed testimony about the assaults. (¶¶23-28).
• Failing to introduce testimony regarding C.A.’s reputation for untruthfulness: Though one of C.A.’s teachers would have testified to her reputation for being untruthful, failing to present the witness was not prejudicial. The teacher had ties to Howlett, weakening the weight of the evidence, especially when compared to C.A.’s very detailed account of the assaults, which included details typically beyond the grasp of children and thus showing it was unlikely she fabricated the claims. (¶¶29-30).
• Failing to impeach C.A. about an allegation she stole a cell phone from a teacher: Howlett contended C.A. stole a phone from his bus, and then claimed he gave it to her in exchange for sexual contact. (¶¶3, 4, 33). Trial counsel was not deficient in failing to elicit an allegation regarding an earlier phone theft because, the court concludes, the evidence was not admissible under any of the theories Howlett offers. It was not habit evidence under Wis. Stat. § 904.06(1) because there was insufficient evidence to establish a pattern or routine. (¶¶33-34). It was not offered for a proper purpose to be other acts evidence under Wis. Stat. § 904.04(2)(a), but was simply propensity evidence that she stole a phone before. (¶¶33, 35). Nor was it a specific instance of prior conduct under Wis. Stat. § 906.08(2), as C.A. never testified to her character for truthfulness. (¶¶33, 36).
• The cumulative impact of trial counsel’s errors: Having dispatched each individual claim, the court of course concludes there is no cumulative effect. (¶38).

State v. Brian L. Jackson, 2012AP1008-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Sufficiency of the evidence

In a necessarily fact-specific discussion (¶¶4-5, 10-12), the court of appeals holds there was sufficient evidence to support Jackson’s conviction for being a felon in possession of a firearm despite the existence of evidence to the contrary, which included the lack of Jackson’s DNA on the gun (and other objects) he supposedly discarded during a foot pursuit and the fact the officers lost sight of the men they were pursuing at various times during the chase:

 ¶13      The … testimony of Officers Dukic and Flannery was more than sufficient for a jury to conclude that Jackson did in fact possess the gun in question.  Even though there are contrary inferences the jury could have drawn from the evidence, this does not mean that the jury could not have concluded that Jackson did in fact possess the gun.  Viewing the evidence most favorably to the State and the conviction, as we are required to do, see [State v.] Booker, [2006 WI 79,] 292 Wis. 2d 43, ¶22, we cannot conclude that it “‘is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt[,]’” see id. (citation omitted).  Therefore, we cannot reverse his conviction.  See id.

Plain error

In another fact-specific discussion, the court rejects Jackson’s arguments that several alleged errors which were not objected to at trial constitute “plain error”–that is, obvious and substantial 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. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. Specifically, the court rejects claims that: (a) the prosecutor asked improper leading questions and made improper remarks during closing argument (¶¶19-22, 24-29); (b) the trial court erred in prohibiting the arresting officer from testifying about the DNA report (the crime lab analyst testified about the DNA report instead) (¶¶31-35); and (c) the standard jury instruction regarding possession was confusing and the trial court should have instructed the jury regarding identification (¶¶36-38).

Jackson apparently also raised these issues in a postconviction motion alleging ineffective assistance of counsel, but the circuit court denied him an evidentiary hearing. While he argued the trial court erred in denying him a hearing, the court of appeals rejects the claim because he does not allege facts showing that he was entitled to a hearing. (¶40). See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (defendant must allege facts sufficient to entitle him to relief; conclusory allegations will not suffice).

From The Huffington Post:

Texas Judge’s Order Upholding ‘Bikini Tops For Strippers’ Law Is Completely Hilarious

From ABA Journal:

Judge jails lawyer and client over tardy arrival for jury selection
(Practice pointer: don’t be late for court.)

Partners ahoy! DLA Piper charters cruise ship for meeting
(Is this is the silk stocking firm’s twist on the SPD conference?)

Judge boldly uses Star Trek references in opinion blasting lawyers who sued porn downloaders
(Imagine the appeal!)

Can remote texter be liable if driver is distracted by message? Appeals court mulls novel theory
(See what appellate attorney “Skippy’ Weinstein had to say on the subject.)

From Above the Law:

It’s Time You Legally enforced Your Love for Your Mom
(Sunday is Mother’s Day. Give your mom a Momtract.)