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Exculpatory Evidence – Police Personnel Records; Postconviction Procedure – Serial Litigation Bar: Supplement to Still-Pending Motion

State v. Christopher J. Anderson, 2009AP3053-CR, District 1, 3/27/12

court of appeals decision (not recommended for publication); pro se; case activity; prior history: 2008AP504-CR

Anderson’s prior appeal established that “the trial court erred when it denied his request for an in camera review of [police] personnel files because he had both a constitutional and statutory right to any exculpatory or impeachment evidence in the files,” 2008AP504, ¶10. (Anderson, convicted of possession of cocaine with intent to deliver, argued that the files were relevant to his theory of defense that the arresting officers framed him.) On remand, the circuit reviewed the files, and ruled that they contained nothing exculpatory. The court of appeals now affirms on the merits.

¶15      “When the [circuit] court conducts an in camera inspection, it determines whether the records contain information that is material to the defense of the accused.”  State v. Richard A.P., 223 Wis. 2d 777, 785, 589 N.W.2d 674 (Ct. App. 1998) (emphasis added). Before we can review the circuit court’s determination, we must also conduct an independent review of the confidential records examined by the circuit court.  Id.  See also State v. Solberg, 211 Wis. 2d 372, 383, 564 N.W.2d 775 (1997) (“If the circuit court had the authority to review the privileged records, then the court of appeals also had the authority to do so.”).  We may find that disclosure of confidential records is necessary “‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’”  Richard A.P., 223 Wis. 2d at 785 (citation omitted).  “We review the [circuit] court’s decision regarding the withholding of information from records it has reviewed in camera ‘under the clearly erroneous standard.’”  State v. Darcy N.K., 218 Wis. 2d 640, 655, 581 N.W.2d 567 (Ct. App. 1998) (citation omitted; emphasis added).  “A circuit court properly exercises its discretion in this regard if it ‘applies the relevant law to the applicable facts and reaches a reasonable conclusion.’”  Id(citation omitted).

¶16      We have reviewed the confidential records contained in the record and conclude that the circuit court did not erroneously exercise its discretion. …

The trial court properly imposed a serial-litigation bar against consideration of a supplemental motion filed while Anderson’s § 809.30 motion for postconviction relief was still pending.

¶26      Whether Anderson was barred from raising additional claims in his second postconviction motion is a question of law that we review de novo.  See State v. Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).  Anderson raised a multitude of additional issues in his supplemental motion, including double jeopardy and additional allegations of trial counsel ineffectiveness.  As our supreme court held in State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994), appellants must demonstrate a sufficient reason to raise a constitutional issue that could have been but was not raised in a previous motion for postconviction review.  None of the reasons raised by Anderson constitute “sufficient reasons.”  Anderson’s pro se status does not exempt him from the requirement discussed in Escalona.  Indeed the case makes no exception for unrepresented litigants, to do so would be contrary to Escalona’s policy of “finality in … litigation.”  See id. Anderson elected to proceed pro se after his trial and was notified by the circuit court that all potential claims for relief must be brought forth in one motion.  He has not overcome the Escalona bar.

¶27      Anderson also argues that there are no time limits to filing supplemental postconviction motions, and because his original motion was still pending before the circuit court when his supplemental motion was filed, the court should have considered the merits.  As discussed, Anderson raised entirely new issues in his supplemental motion.  Allowing appellants to raise new issues after filing an initial postconviction motion simply by labeling the new motion “supplemental” would also run contrary to Escalona’s principle of finality.  See id. We decline to carve such an unprecedented all-encompassing exception from the clear policy of Escalona.

Could be an instance of, right result but for the wrong reason. The “serial-litigation bar” assures place of honor to “finality” at the postconviction table: here, though, finality hadn’t yet made an appearance, precisely because the motion was still pending. Something must have – and was, as we will see – been going on. The facts matter; they always do. CCAP reflects the relevant trial-level events: the Notice of Intent was filed 10/6/05; counsel was appointed, transcripts prepared and, after lengthy maneuvering, counsel was allowed to withdraw so Anderson could represent himself; Anderson filed his pro se § 809.30 motion on 9/7/06; a Machner hearing was held 7/13/07, following which the court set a briefing schedule; and the court of appeals set a deadline of 12/21/07 for ruling on the motion – while that (and various other procedural wrangling by Anderson) was going on, Anderson filed on 12/3/07 the supplemental motion in question. So, not only had this case been in postconviction status a very long time, but significant resources expended on hearing Anderson’s claim and having it brought to a head, only to have him at the last minute throw still more issues into the hopper. Whatever else might be said, the equities probably didn’t favor him. It might, then, be said that the matter had been litigated by the time Anderson sought to raise additional matters. That could be one way of looking at the case, and if so, it makes the case more or less sui generis, at least on its facts. Nonetheless, the decision’s language is sufficiently broad (it suggests that a court may bar consideration of further issues merely because they are “supplemental” to a pending motion) as to cause genuine concern, if unmoored to the facts described above. Indeed, if the decision is applied uncritically, it runs afoul of the spirit of the supreme court’s recent discussion in State v. Sutton, 2012 WI 23, ¶20, which, although addressed to motions for reconsideration of a postconviction ruling, has valence relative to amendments to motions: “On reconsideration, the court may have relied on Wis. Stat. § 802.09 by analogy to allow liberal amendment of the motion.  Section 802.09 provides that leave to amend pleadings ‘shall be freely given at any stage of the action when justice so requires.’[12]  Although a motion is not a pleading,[13] the § 802.09 directive to freely give leave to amend pleadings has been applied to § 974.06 motions.[14].” Footnote 14 of Sutton approvingly cites State v. Rohl, 104 Wis. 2d 77, 93, 310 N.W.2d 631 (1981), for the idea that, “It is within the discretion of the trial court whether to allow an amendment to the pleadings. … We believe it is also within the discretion of the trial court whether to allow an amendment to a motion for postconviction relief pursuant to sec. 974.06, Stats.” And that principle is probably how Anderson is best understood – notwithstanding the latitude granted postconviction litigants to amend their pleadings, Anderson’s attempt came so utterly late in the game that the postconviction court properly exercised discretion in disallowing the attempt.

{ 2 comments… add one }
  • Robert R. Henak March 29, 2012, 8:44 am

    Bill is right that this decision significantly distorts both the holding and the spirit of Escalona-Naranjo, likely due to the fact that Anderson is not represented by counsel and was unable to identify the substantial defects in the kind of arguments the state often raises in cases such as this.

    Escalona-Naranjo, by its terms, applies ONLY to collateral post-conviction motions under Wis. Stat. s.974.06. Because it was a case of statutory interpretation of s974.06(4), it does not in any way justify refusal to consider the merits of a supplemental motion during the direct appeal process. Indeed, Escalona-Naranjo and s.974.06(4) require exactly the opposite result.

    974.06(4) provides that the defendant filing a collateral attack under 974.06 after pursuing a direct appeal or a prior 974.06 motion must show “sufficient reason” why the issues to be raised were not raised (or were inadequately raised) in the prior motion or appeal. Because this is Mr. Anderson’s direct appeal, s. 974.06(4) thus has no rational application to him.

    974.06(4) also specifically provides that the “sufficient reason” requirement applies only when the defendant fails to meet the requirement that “All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion.” Here, Anderson did exactly what 974.06(4) required: He raised his claims in his original and a supplemental motion.

    Escalona-Naranjo does not suggest otherwise. It does not support a “finality uber alles” approach to postconviction motions and specifically states that is not its intent. Rather, the Court stated that the purpose of its decision was to make sure that defendants did exactly what Anderson did: raise all of his claims as part of the direct appeal process.

    Even if the Court did not misread Escalona-Naranjo, its decision also overlooks other controlling authority, and not just Sutton, again no doubt due to the fact that Anderson was pro se.

    First, the Court’s function is “‘to do justice between the parties,’” Larry v. Harris, 2008 WI 81, ¶23, 311 Wis.2d 326, 752 N.W.2d 279 (citation omitted), not to allow one party to take advantage of the others lack of legal skills.

    Second, the applicable legal standard for allowing amendment or supplementation of pleadings or motions requires that such they be allowed absent prejudice to the opposing party. Wiegel v. Sentry Indemnity Company, 94 Wis.2d 172, 184, 287 N.W.2d 796 (1980). Accordingly,
    “refusal to allow an amendment would be an erroneous exercise of discretion: (1) when justice requires an amendment of the pleadings, or (2) when it appears that an omission is material and that such omission or failure is through mistake, inadvertence, surprise, or excusable neglect.”
    Schatz, 2003 WI 80, ¶34 (citing Wiegel, 94 Wis.2d at 184-85) (Emphasis in original). See also Foman v. Davis, 371 U.S. 178, 182 (1962) (applying parallel requirements of Fed. R. Civ. P. 15(a)):
    In the absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. – the leave sought should, as the rules require, be “freely given.”

  • Robert R. Henak March 29, 2012, 8:54 am

    To finish my post – the applicable legal standard under Scatz, Foman, and now Sutton requires:
    1. That amended or supplemental motions be freely allowed absent prejudice to the opposing party or similarly significant reason suggesting culpable fault on the part of the moving party sufficient to overcome the court’s obligation to do justice between the parties, and
    2. the court erroneously exercises its discretion when the amendment is material and the failure is the result of mere mistake or oversight by the movant.

    The result here may have been justified here given the facts and the applicable standard. However, that standard is significantly different than the much harsher, “sufficient reason” standard erroneously applied by the Court here.

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