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Joinder of charges was valid

State v. James D. Carter, 2016AP1054-CR, District 1, 7/5/17 (not recommended for publication); case activity (including briefs)

Carter was charged in a 20-count information with various crimes, most of them involving theft and forgery arising out of a scam Carter perpetrated against multiple victims using the same basic modus operandi in October and November. But he was also charged with a burglary in June, which wasn’t part of the scam and looked nothing like the acts committed during the scam. (Pages 3-5). [NB: We’re citing to pages rather than paragraphs because on pages 6-7 and 12-15 the paragraph numbering is messed up.] The court of appeals rejects his argument that the burglary charge was improperly joined to the other charges.

Under § 971.12(1) two or more crimes may be charged together if they “are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan.” But these words matter less than the judiciary’s policy of favoring joinder because it promotes judicial administrative efficiency and convenience, a policy conveniently incorporated into the seven-factor test for analyzing joinder under State v. Salinas, 2016 WI 44, ¶43, 369 Wis. 2d 9, 879 N.W.2d 609. (Pp. 10-11). Applying that test, the court of appeals holds that burglary and the other charges were “connected together” because, during the execution of a search warrant to look for evidence of the crimes committed during the scam, the police found evidence of the burglary. (Pp. 11-13). Oh, and all the crimes occurred in Milwaukee County over a five-month period. (P. 13). And, of course, a single trial conserves court time. (Pp. 13-14).

Can’t get more “connected together” than that, can you? Quizzical readers may wonder how conserving court time matters when deciding whether different crimes are “connected together”—or, more generally, how the policy of judicial convenience is relevant to whether one of the specific standards in the statutory language is met. It sure ain’t obvious. Yes, the court of appeals is just following through on the reading of the joinder statute in Salinas, which, we said here, engaged in tendentious and conclusory discussions of the facts and a confusing, even bizarre, reading of the pertinent language of § 971.12(1). But if this is a harbinger of things to come, joinder will come to turn less and less on commonality or connection or the plain language of the statute and more on the courts’ concerns about dockets.

Carter also argues that another count—possession of an assault-style rifle by a felon—was properly joined but should have been severed due to its unfair prejudice. (Pp. 14-15). Carter hasn’t shown the required substantial prejudice, the court of appeals holds. The evidence about the gun was in addition to evidence about four other guns also found during the execution of the search warrant, the jury acquitted him of charges of possession of those guns, and the evidence about the gun was not presented in an inflammatory or hyperbolic way. (Pp. 16-17). Nor does it matter that Carter couldn’t testify about the assault weapon charge because it was tried with other charges, as he hasn’t shown he had important evidence to present on that count and strong reason to refrain from testifying on the other counts, as required by State v. Nelson, 146 Wis. 2d 442, 457-58, 432 N.W.2d 115 (Ct. App. 1988). (Pp. 17-18).

Finally, there was sufficient evidence to support the guilty verdict on the assault-style rifle charge. The gun was found in a room in an apartment that the leaseholder said Carter slept in, articles of Carter’s personal property were found in that room, and the jury could infer he knew the gun was there because of where in the room it was found. (Pp. 20-22).

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