On Point

State v. Ryan P. O’Boyle, 2013AP1004-CR, District 1, 2/4/14; court of appeals decision (1-judge; ineligible for publication); case activity

O’Boyle’ claimed his lawyer was ineffective for failing to move to strike the references in the complaint to “domestic abuse” because that isn’t a separate, stand-alone charge. He also claimed counsel failed to explain that the disorderly conduct count to which O’Boyle entered a plea was charged as an act of domestic abuse under § 968.075(1)(a). (¶¶1, 7, 13, 15). As to the first claim, the complaint didn’t charge “domestic abuse” as a separate charge, so there was no basis for filing a motion to strike the non-existent charge. (¶14). As to the second claim, the record refutes it. Even if O’Boyle’s lawyer didn’t explain the domestic abuse modifier, the complaint clearly refers to the modifier and O’Boyle was informed of the modifier on the record at both the initial appearance and the plea hearing. (¶¶16-17).

The court holds, however, that the domestic abuse surcharge under § 973.055 shouldn’t have been levied against O’Boyle because there was no factual basis for it. The court concludes that “[a]lthough not specifically mentioned, implicit in Wis. Stat. § 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in Wis. Stat. § 968.07[5](1)(a)1.—4.” (¶24). While O’Boyle and the victim had a child together, thus satisfying the threshold part of the definition of “domestic abuse” in § 968.075(1)(a)(intro.), his conduct isn’t covered by § 968.075(1)(a)1., 2., 3., or 4. Nor does O’Boyle’s conduct meet the criterion in § 973.055(1)(a)2. because his acts weren’t “against” an adult person with whom he resided or had a child in common: “O’Boyle was intoxicated and attempting to enter the house where he resided. None of his actions were directed at K.E. or N.E., nor was he hostile or violent.” (¶25). Thus, O’Boyle’s actions did not qualify as domestic abuse, and the reference to domestic abuse should be removed from the judgment and the surcharge vacated.

UPDATE: On re-reading, a significant flaw appears in the court’s analysis of whether O’Boyle’s conduct is covered by the domestic abuse surcharge statute, § 973.055. As noted above, the court says that “[a]lthough not specifically mentioned, implicit in Wis. Stat. § 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in Wis. Stat. § 968.07[5](1)(a)1.—4.” (¶24). Why is it “implicit” that a definition found in a different statute applies to § 973.055? Sure, both statutes deal with “domestic abuse”; but § 973.055 itself explains: a) what offenses it applies to (see the laundry list of statutes in § 973.055(1)(a)1.); and b) the relevant conduct—namely, an act by the defendant “against” a spouse, former spouse, co-habitant, etc., as set out in § 973.055(1)(a)2. In fact, the court itself addresses—as it should—whether O’Boyle’s conduct falls under § 973.055(1)(a)2. (¶25). So the court’s reference to and reliance on the definition in § 968.075(1)(a) has no basis in the text of § 973.055 and is wholly unnecessary. (NB: The definition in § 968.075(1)(a) does apply when the state alleges a defendant is subject to the enhancer under § 939.621(2) because he or she is a “domestic abuse repeater” as defined under § 939.621(1)(a).)

State v. Timothy A. Jago, 2013AP1084-CR, District 1, 2/4/14; court of appeals decision (not recommended for publication); case activity

Trial counsel was not ineffective for failing to move in limine to exclude other-acts evidence–specifically, evidence that Jago told the victim he has only pointed a gun at two people in his life, the victim and the man he killed in Illinois. (¶¶4, 16, 19). Jago’s trial lawyer reasonably relied on an agreement with the prosecutor to keep this statement out of evidence. (¶¶5, 14, 20). (Though the victim testified to the statement, it was not intentionally elicited by the prosecutor. (¶¶5-6).) In addition, the statement was not other-acts evidence, but an admissible statement of a party opponent, § 908.01(4)(b)1.; thus, a limine motion to exclude the statement as other acts evidence would have been denied. (¶21). Counsel can’t be deficient for failing to bring a motion that would have been denied, State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546 N.W.2d 406, 416 n.10 (1996). Moreover, there was no prejudice, as the trial court struck the statement and instructed the jury not to consider it, and juries are presumed to follow instructions, State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759, 768 (1994). (¶¶6, 21). Finally, the trial court properly exercised its discretion in denying Jago’s mistrial motion based on the victim’s testimony about the statement. (¶¶6, 32-34).

Jago’s other claims of ineffective assistance are also rejected. Specifically, trial counsel was not ineffective for “opening the door” for the state to present rebuttal evidence of other threatening acts toward the victim and then failing to make multiple objections to the testimony during the state’s rebuttal case. (¶¶13, 16, 22, 26). The other-acts evidence was clearly admissible to rebut the defense Jago offered during his own testimony, so trial counsel was not deficient and Jago wasn’t prejudiced. (¶¶8-12, 23-25, 27-28). Finally, trial counsel was not ineffective for failing to use the victim’s medical condition to attack her credibility because trial counsel had considered, strategic reasons for doing so–e.g., it was inconsistent with the defense theory that the victim was manipulative and motivated to lie to gain a financial advantage in the pending divorce; that it might make her more sympathetic with the jury; and that medical experts trial counsel talked to considered the medical condition theory speculative. (¶¶13-14, 29-31).

Whether you need a good laugh or a fresh, in-depth analysis on a hot legal issue, On Point has just the link for you!

New study ranks best jobs in America.  Can you guess where “lawyer” falls?  Hint:  somewhere after maintenance/repair worker.  Click here.

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New report examines juveniles serving mandatory life sentences without parole.  Here.

Seventh Circuit denies immunity to prosecutor accused of coercing testimony.  This article includes links to the decision.

The Confrontation Clause and the confusion created by Williams v. Illinois.  Read about here.

Have you ever felt like filing a frivolous lawsuit?  There’s an app for that!  Seriously.

State v. Mark Peterson, 2013AP1398, 1/29/14, District 2 (1-judge opinion, ineligible for publication); docket

After Peterson served a 120-day jail term imposed for failing to meet the conditions required to purge a contempt finding, he moved for an evidentiary hearing.  His goal was to show that serious errors had occurred at the hearing where the court ordered him to jail. The court of appeals found that since Peterson had already served his sentence, a hearing would just waste everyone’s time:

A court may “conserve scarce judicial resources by eliminating unnecessary evidentiary hearings.” State v. Velez, 224 Wis. 2d 1, 12, 589 N.W.2d 9 (1999). A new evidentiary hearing on the issue of whether to lift the 120-day jail term for contempt was unnecessary as Petersen already had served his jail time. The court properly denied Petersen’s motion and “conserve[d] scarce judicial resources.” Id.

This blanket statement is worrisome.  Peterson was proceeding under Wis. Stat. § 809.30 and asserting, among other things, that he had received ineffective assistance of counsel at the hearing where the court found that he failed to purge the contempt and sent him to jail.  While it’s true that the circuit court can’t give Peterson relief in the sense of restoring the 120 days he spent in jail, query whether that fact alone precludes a hearing and decision on the issues he raised.  For the record, Velez isn’t a contempt case and doesn’t answer the question.

State v. Javier Teniente, 2013AP799-CR, District 4, 1/30/14; court of appeals decision (1-judge; ineligible for publication); case activity

Teniente was on his boat in the chamber of Madison’s Tenney Locks waiting for the water to rise. Piqued by Teniente’s boisterous behavior, an officer standing on the wall of the lock engaged Teniente in conversation. (¶¶3-4, 15). This interaction wasn’t a seizure for Fourth Amendment purposes; instead, Teniente was seized only when the officer subsequently instructed him to pull his boat over to the dock:

¶16      When Roloff engaged Teniente in conversation, none of the circumstances indicating a seizure were present. Roloff was the only officer speaking to Teniente. There is no evidence that Roloff displayed his weapon or physically contacted Teniente. There is no evidence that Roloff used a harsh or authoritative tone of voice. And although Teniente could not leave the lock—a factor that was beyond Roloff’s control[2]—Teniente could have ignored Roloff’s attempt to converse with him. For these reasons, we conclude that the initial contact between Roloff and Teniente did not constitute a seizure. See [Florida v.] Bostick, 501 U.S. [429,] 434 [(1991)] (explaining that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions” as long as “a reasonable person would feel free ‘to disregard the police and go about his business’” (quoted source omitted)).

¶17      However, Roloff’s encounter with Teniente did not end after the initial contact, and Roloff eventually instructed Teniente to pull his boat over. We conclude that at this point, a reasonable person in Teniente’s position would not have believed that he or she was free to leave. Teniente was therefore seized when Roloff instructed him to pull over. …

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[2]  See United States v. Drayton, 536 U.S. 194, 201-03 (2002) (explaining that the movements of the defendants, who were passengers on a bus, were confined not as a result of coercive police conduct but as a “natural result of choosing to take the bus,” and holding that the defendants were not seized when law enforcement officers boarded the bus and began questioning passengers). 

State v. Darryl J. Badzinski, 2014 WI 6, reversing unpublished court of appeals decision; case activity

Badzinski was charged with sexually assaulting his niece, A.R.B., during a family gathering at the home of his parents. (¶¶8-9). A.R.B. testified the assault occurred in a specific room–the basement laundry room. (¶11). But there was also testimony from multiple defense witnesses that it was not possible for the assault to have happened in the laundry room. (¶¶15-16). During deliberations, the jury asked two questions. First, they asked if they had to agree on the “place” the assault occurred; the court told them they had to agree it occurred at Badzinski’s parents’ house. They then asked whether they had to agree on which room the assault occurred in; to this question the trial judge answered “no.” (¶20).

Badzinski claimed that because the only evidence of the crime was A.R.B.’s testimony, and that A.R.B. testified that the assault occurred in the laundry room, the room in which the assault occurred is a fact necessary to prove an essential element of the crime. Thus, he argued, the jury had to be unanimous about which room the assault occurred in. The supreme court rejects this claim.

While the a defendant has a right to a unanimous verdict on the essential elements of the crime, unanimity is not required with respect to the alternative means or ways in which the crime can be committed. Holland v.State, 91 Wis. 2d 134, 143, 280 N.W.2d 288 (1979); State v. Derango, 2000 WI 89, ¶14, 236 Wis. 2d 721, 613 N.W.2d 833. The essential elements of the crime charged in this case are (1) that the defendant had sexual contact with A.R.B. and (2) that A.R.B. was under the age of 13 years at the time of the alleged sexual contact, § 948.02(1)(e), so those are the only elements that the jury must have agreed upon unanimously:

¶32  … The location of the room is not a fact necessary to prove either of the essential elements in this case. A.R.B. testified that Badzinski’s actions occurred in the laundry room. The contrary evidence regarding the location of the assault was relevant to A.R.B.’s credibility. See Kohlhoff v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978). However, a jury does not need to accept a witness’s testimony in its entirety. State v. Balistreri, 106 Wis. 2d 741, 762, 317 N.W.2d 493 (1982); State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752. The jury could have believed A.R.B.’s testimony about the sexual contact itself without believing that it occurred in the laundry room. Indeed, [the state’s expert on child sexual assault victims] testified that child victims do not always remember the peripheral details of the assault.

¶33  Furthermore, … there was evidence in the record from which the jury could have concluded that the assault occurred elsewhere in the house. A.R.B. indicated that the assault occurred when she was playing hide-and-seek. Badzinski’s sister testified that the children would play games such as hide-and-seek upstairs. His brother-in-law testified that it would be possible for someone to masturbate in one of the upstairs bedrooms without anyone noticing. The jury could have reasonably inferred from this evidence that the assault occurred somewhere other than in the laundry room.

The court also rejects Badzinski’s argument that the trial court’s answer to the jury’s second question misled the jury into thinking A.R.B.’s credibility was irrelevant, thus allowing the jury to disregard A.R.B.’s testimony and to speculate beyond the evidence about where the assault occurred:

¶37  To prevail on an argument that the jury was unconstitutionally misled in violation of a defendant’s due process rights, a defendant must show: (1) “that the instruction was ambiguous” and (2) “that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.” [State v.] Burris, [2011 WI 32,] 333 Wis. 2d 87, ¶48[, 797 N.W.2d 430] (quoting Waddington v. Sarausad, 555 U.S. 179, 190 (2009)).

¶38  In evaluating these factors, we consider the instruction “in light of the proceedings as a whole, instead of viewing a single instruction in artificial isolation.” [State v.]  Lohmeier, 205 Wis. 2d [183,] 193[, 556 N.W.2d 90 (1996)]. …

….

¶46  In … context, the circuit court’s instructions were not ambiguous. It told the jury what elements the State needed to prove, that it could rely only on the evidence, that credibility was for the jury to decide, and that it did not have to agree on the room where the assault occurred. The court’s instructions were accurate. As long as the jury followed the instructions literally, it would be prevented from speculating beyond the evidence and would not be required to ignore evidence that may discredit A.R.B.

¶47  Even if the instructions were potentially ambiguous, considering the proceeding as a whole, it is not reasonably likely that the jury believed it could not consider the victim’s credibility and could reach conclusions based on speculation. The focus of the trial was on credibility and the room in which the assault occurred. Further, the jury instructions informed the jurors that credibility was an issue for them to decide, and required them to base their decisions on evidence and not rely on evidence outside the record. Under the instructions, the jury was free to consider and weigh all of the evidence presented at trial, including A.R.B’s credibility. It is unlikely that a single word answer from the court during deliberations would negate everything that preceded it.

Nor does the verdict show that the jury speculated beyond the evidence presented at trial, as there was evidence from which the jurors could have inferred that the assault in fact occurred somewhere else in the house. (¶49).

Village of Grafton v. Eric L. Seatz, 2014 WI App 23; case activity

“The issue presented is straightforward:  Must a court order the installation of an ignition interlock device when a defendant is convicted of first-offense operating while intoxicated (OWI) and also has a prior conviction for an OWI offense?  The answer is yes.” (¶1).

Seatz was arrested for OWI. His blood alcohol content was .13. He had a prior conviction, but it was more than 10 years prior to the offense date. Thus, in accord with § 346.65(2)(am)1. and 2. he was charged with a first offense. He argued the ignition interlock device requirement did not apply to him because § 343.301(1g)(b)2. refers to the convictions that are “counted” under § 343.307(1), which must refer to using the prior conviction to penalize him as a repeat offender. Because his prior conviction was outside the 10-year look-back period in § 346.65(2)(am)2., it isn’t “counted” for penalty purposes or, therefore, for purposes of ordering the ignition interlock device. (¶6). The court disagrees:

¶7        The significance of Wis. Stat. § 343.307(1) as it relates to Seatz is that his Michigan conviction constitutes a prior OWI conviction for purposes of the penalties and collateral consequences for OWI convictions in Wisconsin. See § 343.307(1)(d). Seatz does not challenge whether his 1997 Michigan OWI conviction is a prior OWI conviction under § 343.307(1). As the prior conviction occurred more than ten years before the 2012 charge, however, Wis. Stat. § 346.65(2)(am)2. prevents Seatz from being charged with or criminally penalized for a second offense under Wisconsin’s accelerated penalty scheme for OWI offenders. In contrast, Wis. Stat. § 343.301(1g)(b)2. requires an order for ignition interlock devices when a person violates Wis. Stat. § 346.63(1) and has one or more prior OWI convictions, including convictions counted under § 343.307(1)(d), i.e., OWI convictions from other jurisdictions. Unlike § 346.65(2)(am)2., § 343.301(1g)(b)2. provides no restrictions on how to count prior convictions under § 343.307(1) for purposes of ordering ignition interlock devices.

¶8        The ten-year look-back provision in Wis. Stat. § 346.65(2)(am)2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of whether a person has one or more prior OWI convictions under Wis. Stat.§ 343.307(1) and has no effect on orders for ignition interlock devices under Wis. Stat. § 343.301. The different language of §§ 346.65(2)(am)2. and 343.301(1g)(b)2. indicates that the legislature had different intentions for how each statute treats prior OWI convictions. Cf. Wis. Stat. § 343.30(1q)(b)3.; State v. Banks, 105 Wis. 2d 32, 42-43, 313 N.W.2d 67 (1981). The absence of an explicit attempt to incorporate the ten-year limitation from § 346.65(2)(am)2. into either § 343.307(1) or § 343.301(1g)(b)2. shows the legislature did not intend to apply the ten-year limitation to the ignition interlock device statute. See State v. Herman, 2002 WI App 28, ¶12, 250 Wis. 2d 166, 640 N.W.2d 539.

Note that the ignition interlock device requirement applies to OWI offenders regardless of their prior record if they have a BAC of more than .15 or if they refused a chemical test, § 343.301(1g)(a) and (b)1. (¶5).