On Point

State v. Antoine Lamont Massey, 2012AP1124-CR, District 1, 3/5/13; court of appeals decision (not recommended for publication); case activity

A daughter of the leaseholder had both actual and apparent authority to consent to a search of the apartment, including the back bedroom in which drugs were found, applying, among other cases, State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), and Illinois v. Rodriguez, 497 U.S. 177 (1990):

¶23      The evidence presented by the State during the suppression hearing supports the trial court’s decision that Lewis had actual and apparent authority over the entire house, including the back bedroom. Lewis was the adult daughter of Boyce, the house’s leaseholder, who was left in charge of the house while Boyce was incarcerated. Boyce entrusted Lewis to pay the bills, and to watch her younger sisters who lived in the home. As part of her duties, Boyce expected Lewis to check in daily and to occasionally sleep in the back bedroom. In other words, Boyce had given Lewis “run of the apartment” while she was there. See United States v. Garcia, 690 F.3d 860, 862-63 (7th Cir. 2012) (neighbor who had “run of the apartment” to watch the defendant’s children while he worked had actual authority to consent to search of the home); see also Sobczak, 338 Wis. 2d 410, ¶12 (houseguest who is given “‘the run of the house’” may give actual consent) (citation omitted) [petition for review granted June 13, 2012].

****

¶25      Furthermore, even if Lewis did not have actual authority to consent to the search, Officer Lopez reasonably believed she had such authority. Officer Lopez testified, and the trial court found his testimony credible, that Lewis told him that Boyce had left her in charge, that she was paying the rent, that she was in charge of her sisters who lived at the house, and that she occasionally slept in the back bedroom. A reasonable person hearing this information would believe that Lewis had the actual authority to consent to a search of the entire house, including the back bedroom.

Relying on State v. St. Martin, 2011 WI 44, ¶¶3-7, 334 Wis. 2d 290, 800 N.W.2d 858, the court also rejects the contention  Lewis did not have authority to consent to a search of the back bedroom because he had a greater privacy interest in the bedroom than she did: “Even if true, and we do not conclude that it is, his complaint is irrelevant. As the State correctly points out, even if Massey had a privacy interest in the back bedroom, at the time the police asked Lewis for permission to search, Massey was under arrest in a police car and was not present to object to the search.”

Voluntariness of consent

Under the factors listed in State v. Bermudez, 221 Wis. 2d 338, 348-49, 585 N.W.2d 628 (Ct. App. 1998), Lewis voluntarily consented to the search of the home where: she was not handcuffed and police did not have their guns drawn; she was in her mother’s house, a place she likely felt safe; and there was no evidence demonstrating that Lewis had reason to feel scared or tricked at the time she consented to the search. (¶¶29-30). Massey’s reliance on Lewis’s suppression hearing testimony that police entered the residence with their guns drawn and ordered her out of the way, intimidating her, is rejected: “The trial court explicitly found that Officer Lopez was more credible than Lewis. And if even if the police did make a show of force when they entered the home to arrest Massey, there was no such show of force later when Lewis consented to the search.” (¶30).

The trial court also made findings of fact about the voluntariness of Lewis’s consent based on a recording the officer made of her second consent to search, and because the recording is not in the record, the court of appeals assumes the trial court’s interpretation is accurate. (¶31).

State v. Stephen Robert Felix Schurk, 2012AP1501-CR, District 1, 3/5/13; court of appeals decision (1 judge; ineligible for publication); case activity

Schurk was not entitled to plea withdrawal even though the judge did not specifically inform Schurk that he was not bound by the parties’ plea agreement because the information was conveyed to Schurk in other ways:

¶11      …. [The court’s] colloquy advised Schurk that with regard to certain aspects of the sentencing, the court was free to decide what amounts he could be fined, how long his license would be revoked, and that the sentences could be consecutive. Thus, besides having been advised in the guilty plea questionnaire that the trial court was free to craft the sentences, Schurk knew that the trial court was free to decide other aspects of the sentences. Moreover, the trial court did follow the plea negotiation, so Schurk obtained what he requested. Given this scenario, no manifest injustice occurred.

See also State v. Johnson, 2012 WI App 21, ¶12, 339 Wis. 2d 421, 811 N.W.2d 441 (defendant not affected by the defect in his plea colloquy where he received the benefit of the agreement).

Nor did the judge’s failure to ask Schurk if his plea was “coerced” make the colloquy inadequate because the guilty plea questionnaire, which Schurk admitted reading and signing, included a statement that he had decided to enter the plea “of my own free will” and had “not been threatened or forced to enter this plea.” (¶12). Schurk’s claim that he was “coerced” to plead to the charges in this case to avoid the state making a prison recommendation in another case is also rejected, as “a desire to accept a plea negotiation that insures a lesser sentence is not coercion,” citing Rahhal v. State, 52 Wis. 2d 144, 151, 187 N.W.2d 800 (1971).

State v. Lee Yang, 2012AP1126-CR, Districts 1/4, 2/28/13; court of appeals decision (not recommended for publication); case activity

Yang was being interrogated about the shooting death of his ex-wife’s boyfriend when he invoked his right to counsel. Interrogation ceased and he was taken to jail. (¶¶3, 5). Several hours later, Gomez, a homicide detective, visited Yang in jail. (¶7). Gomez had not been involved in the earlier interrogation, but he did help execute a search warrant at Yang’s home, during which he learned Yang was a Vietnam war veteran. (¶¶4, 6). Gomez was a veteran, too, and considered Vietnam vets to be “heroes,” so he “wanted to see if Yang needed anything, ‘such as food other than the jail’s bologna sandwiches.” (¶7). Yang had difficulty understanding English, but during a five-minute encounter Gomez conveyed he was a fellow vet and that it was an “honor” to speak with Yang; “explained through hand signals to call him if he needed anything, such as food or water”; and gave Yang his business card. When Yang attempted to talk about his ex-wife, Gomez stopped him. (¶¶8-9). Some hours later Yang wordlessly handed Gomez’s card to the jailer. Assuming this act meant Yang wanted to talk to Gomez, the jailer called Gomez. When Gomez and a translator went to Yang’s cell, he confirmed he wanted to talk about the allegations even though no lawyer was present. (¶¶11-15). Yang was given Miranda warnings and, after questioning, confessed. (¶15).

Once Yang invoked his right to have counsel present during interrogation, he was not subject to further interrogation until counsel has been made available to him, unless he himself initiated further communication or conversation with police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). As analyzed by the court, the issues on appeal are whether Gomez’s visit to Yang constituted interrogation after Yang’s invocation of his right to counsel, and, if it did not, whether Yang initiated the later interrogation by handing Gomez’s business card to the jailer.

Functional equivalent of interrogation

The court holds that Gomez’s visit to Yang’s jail cell was not the functional equivalent of interrogation and therefore did not violate the rule in Edwards:

¶25      … Gomez’s conduct was significantly more neutral and attenuated than the officers’ conduct in Innis, Cunningham, and Hambly—all cases in which courts held that no interrogation, or its functional equivalent, had occurred. Here, Gomez did not confront Yang with incriminating physical evidence, make offhand remarks about the risks of failing to discover a weapon, or summarize facts about the State’s case against Yang. Rather, Gomez’s words and conduct constituted nothing more than small talk regarding military service and whether Yang needed anything, such as food or water. Gomez’s initial visit lasted no more than five minutes. Gomez did not perform any express questioning, nor did he even mention the investigation or the facts leading to Yang’s arrest. When Yang mentioned his ex-wife, Gomez immediately indicated to Yang to stop talking. Based on these facts, we agree with the circuit court’s conclusion that an objective observer would not conclude that such “small talk” was likely to elicit an incriminating response. See State v. Kramar, 149 Wis. 2d 767, 789, 440 N.W.2d 317 (1989) (finding that an officer’s “small talk” with the defendant about school and his family was not interrogation because it was not reasonably likely to elicit an incriminating response).

The court also concludes the record does not show that Gomez used his knowledge Yang was a veteran to appeal to Yang’s vulnerability or that  Gomez’s visit was designed to elicit an incriminating response:

¶27      Nothing in the record suggests that Yang was disoriented or upset by the topic of war service, nor does the record suggest that Gomez used Yang’s war service to persuade Yang to discuss matters relating to the investigation. See Cunningham, 144 Wis. 2d at 278 (quoting Innis, 446 U.S. at 302 n.8) …. Rather, the circuit court found that Gomez credibly testified that he told Yang to contact him for “food, water or comforts,” and that the small talk was not an “open invitation necessarily to simply … contact [Gomez] if [Yang] ha[d] anything … to say, which might be more of an open invitation to give [Gomez] a statement.” We also note that Gomez’s testimony that he and Yang communicated by hand signals demonstrates a significant language barrier that supports the finding that no interrogation, or its functional equivalent, occurred.

Initiation of further communication by defendant

Yang’s act of handing the jailer Gomez’s business card, combined with his initial statements to Gomez when he returned to Yang’s cell, constituted an initiation of interrogation under either test expressed in Oregon v. Bradshaw, 462 U.S. 1039 (1983):

¶32      Yang argues that his holding of the business card out his cell door did not demonstrate a willingness generally to discuss the investigation (under the Bradshaw plurality’s test) nor did it constitute dialogue about the subject matter of the criminal investigation (under the Bradshaw dissent’s test). We agree that by itself the physical act of holding the business card out to Brown did not constitute further communication about the investigation. However, immediately upon his arrival to Yang’s cell, Gomez asked Yang, through an interpreter, if Yang had asked for him. Yang confirmed that he had, thereby confirming that his presentation of Gomez’s card meant that he wanted to talk to Gomez. Moreover, Yang then stated that he wanted to speak about the allegations. The circuit court found Gomez’s testimony to be credible regarding these events. Yang’s confirmation that he wanted to speak with Gomez, along with his immediate statement about wanting to discuss the allegations, demonstrated an obvious interest and willingness to discuss the investigation and constituted dialogue about the subject matter of the criminal investigation. Therefore, these facts support the circuit court’s finding that Yang initiated communication with Gomez under both Bradshaw tests.

The court distinguishes State v. Conner, 2012 WI App 105, 344 Wis. 2d 233, 821 N.W.2d 267, where police officers brought Conner to an interrogation room on their apparently mistaken belief that Conner had requested to speak with them, although Conner had already requested counsel three times, and, after the interrogation ended, Conner never asked to resume discussions with the detectives. “Here, when Gomez appeared, Yang confirmed that he had asked for Gomez by holding out Gomez’s business card and then immediately stated that he wanted to discuss the allegations.” (¶33).

A straightforward application of Edwards—or is it? The court asks if Gomez’s conduct amounts to interrogation and then asks if Yang initiated further contact as that is understood under Bradshaw. But this approach obscures another issue: Whether Yang initiated contact on his own, or whether Gomez’s conduct led Yang to initiate contact.

Edwards holds that a suspect who has invoked the right to counsel can’t be interrogated again until counsel has been made available, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” (451 U.S. at 484-85). Some courts have very logically read this to mean the “impetus” for the conversation must come from the accused, not the police. E.g., Metcalf v. State, 681 S.W.2d 344, 345 (1984). It also means, as a standard treatise puts it, that “if there has been some kind of police conduct preceding and allegedly contributing to the defendant’s supposed ‘initiation,’ the question becomes how that conduct is to be judged in determining where the ‘impetus’ lies.” LaFave, et al., Criminal Procedure § 6.9(f), at 844-45 (3d ed.2007). LaFave notes two views of what police kind of conduct counts here: Some courts—like the court in this case—treat police conduct as relevant only if it amounts to interrogation; others say the conduct need not amount to interrogation.

The decision to focus on whether there was interrogation probably flows from language in Edwards itself, which prohibits “further interrogation” unless the suspect has his lawyer present or initiates contact. But even if the paradigmatic case may well involve police engaging in interrogation, Edwards’s injunction against further interrogation can’t mean police may do anything short of interrogation to get the suspect to initiate further interrogation; that opens up an end-run around Edwards. The Court has recognized this, though perhaps only obliquely. Bradshaw, for instance, describes Edwards’s rule as designed to protect an accused from being “badgered” in the way Edwards was, 462 U.S. at 1044, and Smith v. Illinois, 469 U.S. 91, 98 (1984), citing Bradshaw, says: “In the absence of [Edwards’s] bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.”

That said, for police conduct that is not interrogation to rise to “badgering” or “overreaching” that violates Edwards, it will likely have to be egregious. A recent example is Dorsey v. United States, No. 06-CF-1099, 2013 D.C. App. LEXIS 3 (D.C. Cir. Jan. 3, 2013) (en banc), where the defendant asked for a lawyer after several hours of interrogation but was thereafter subjected to what the court aptly termed “badgering with a vengeance,” which included some further interrogation. Rejecting the government’s claim that the only relevant questions for the “initiation” test are what the defendant did and said to initiate contact, the court said Edwards’ suspect-initiation requirement was meant to provide meaningful additional protection against “badgering” tactics and therefore those tactics must be relevant to whether the suspect made a valid initiation.

Gomez’s conduct was obviously nothing like the “badgering with a vengeance” in Dorsey. But as Smith says, “badger[ing]” or “overreaching” can be “explicit or subtle, deliberate or unintentional.” Even giving credence to Gomez’s respect for Vietnam vets, he was, after all, connected to the investigation by having helped execute the search warrant, and his conduct certainly resembles the first half of a “good cop/bad cop” routine: Conveying respect for Yang and concern about his needs, trying to build trust and rapport and an “exchange dynamic” so that Yang will confess. Focusing on whether Gomez’s conduct constituted interrogation means the court gives only glancing attention (¶27) to the possibility Gomez’s acts provided impetus for Yang’s initiation, even though they weren’t likely to elicit immediately an incriminating response. But even if closer attention to that question wouldn’t change the result here, it might be worth thinking about in other cases where a suspect has invoked the right to counsel, was thereafter subjected to police contacts not amounting to interrogation, and later “initiated” further interrogation by contacting police.

State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.

While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child?  The answer may surprise you.

Here’s what happened.  Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof.  He says he put a seat belt on her, but not a helmet or other protective gear.  As Gimino turned a corner, his daughter was thrown out of the go-kart and sustained road rash on the left side of her body and a puncture wound on her right leg.  Gimino carried his daughter home, washed her wounds, applied an antibiotic, administered Motrin, and checked her throughout the night to make sure she did not have a concussion.  Initially, he did not call his daughter mother due to restraining orders between the two.  He did call her aunt (and ultimately the mother herself)  and told them that the child was injured by falling off of her bike.  Later, he admitted that the injury occurred when the child fell from the go-kart.

The State charged Gimino with 2 counts of recklessly causing harm to a child under Wis. Stat. § 948.03(3)(b).  The first count was based on the fact that Gimino took his daughter for a spin on the go-kart.  The second was based on the fact that he treated his daughter’s injuries at home instead of taking her to the hospital.  After a bench trial, the court convicted him on both counts.  On Postconviction and appeal, Gimino presented and lost the following arguments.

Sufficiency of the evidence

As to the go-kart count, the court of appeals held:

This evidence is easily sufficient to support Gimino’s conviction. It shows that he failed to properly restrain a very young child in a vehicle with open sides and then drove dangerously fast around a curve, causing B.G. to fall out and sustain serious injury. This conduct created a situation of unreasonable risk of harm and demonstrated conscious disregard for B.G.’s safety.  (Slip. op., ¶ 14).

As to the “failure to seek medical attention” count, the court of appeals held:

 As is readily apparent by now, the evidence supports a finding that B.G. was ejected forcefully from the go-kart onto hard pavement. The risk of an internal head injury or other internal injury is obvious. And, as to B.G.’s visible injuries, Gimino plainly created the unreasonable risk of infection and needless additional pain. Dr. Saunders testified that, due to the type of accident, there was the potential B.G. had suffered a closed head injury, a fracture, or infection if her wounds had not been properly cleaned. Even Gimino evinced an awareness of the risk of a possible closed head injury because he asserted he woke B.G. up throughout the night to make sure she did not have a concussion. (Slip. op., ¶ 21).

The court noted that Gimino had initially lied to 2 people about the cause of his daughter’s injuries and that B.G.’s mother testified that he didn’t seek medical treatment because he did not want to get into trouble for having B.G. in a go-kart. Looking at the evidence in the light most favorable to the State, the court found sufficient evidence to convict Gimino of recklessly failing to seek medical treatment for his daughter. (Slip. op., ¶ 25).

This holding opens a can of worms.  The statute at issue, Wis. Stat. § 948.03(3)(b), requires proof that the parent’s conduct “created a situation of unreasonable risk of harm to and demonstrated a conscious disregard for the safety of the child.  See Wis-JI-Criminal 212.  So where exactly is the line between taking your kid on a go-kart without a helmet and a good safety restraint and taking your kid sledding, horseback riding, iceskating, skateboarding or for a short spin on the handlebars of your bike?  Looks like a steep and slippery slope toward criminal liability for parents.

Parent’s right to decide care, custody and control of children

Now, there are a number of interesting side issues re bodily harm, admission of expert testimony, ineffective assistance of trial counsel, forfeited arguments, undeveloped arguments, arguments sandbagged in reply briefs and so forth, but let’s get to Judge Sherman’s juicy concurrence.

I accept the inevitability of the majority opinion, given the forfeiture of the issue of parental prerogative to make decisions in the child’s best interest, as noted in the majority’s footnote 7. Yet, I find the prosecution of Gimino for failing to seek medical attention for his daughter so outrageously repugnant, and the potential for future mischief from not addressing it so high, that I am compelled to write separately. (Slip. op., ¶46).

The concurrence cites the fundamental right of parents to make decisions regarding the care, custody, and control of their children.  See Troxel v. Granville, 530 U.S. 57, 66 (2000).  Noting the absence of authority directly on point, Judge Sherman wrote:

In an admittedly non-exhaustive search, I was unable to find a published state or federal case in which a parent’s conviction for child abuse for not seeking medical attention was upheld on appeal, where the injuries or illness were not life-threatening.  (Slip. op., ¶ 53).

[I]n the interest of providing guidance for future prosecutorial decisionmaking, I cannot refrain from criticizing the decision to bring the second charge in the first place. The prosecution of a parent for failure to provide medical care where the injuries are relatively minor and the only issue is how best to manage the child’s pain and prevent infection, both matters which do not present serious danger to the child, is overreaching. See id. It is also against the great weight of both precedent and practice. (Slip. op., ¶ 56).

Hmmmm. A little forfeiture never stopped an appellate court from addressing a legal issue that it wanted to reach.  See State v. Kaczmarski, 2009 WI App. 179, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702.  Seems like the court sought to avoid the tough, substantive issue highlighted by the concurrence. A variation of the issue, involving a parent’s use of prayer to treat a child’s fatal illness, is pending in SCOW right now.  State v. Leilani Neumann, 2011AP1105-CR.

By MICHAEL TOBIN, Deputy State Public Defender

The historic U.S. Supreme Court decision in Gideon v. Wainwright was a major step towards fairness and equality in our criminal justice system.  This year’s 50th anniversary of the decision gives us reason to reflect on the effect of the decision.

Clarence Earl Gideon filed a handwritten petition challenging his conviction because the State of Florida had denied him the right to counsel.  Neither the underlying criminal charge (breaking and entering) nor his sentence (five years imprisonment) would ordinarily have been of major interest beyond the parties directly involved.  However, by the time the case was argued on January 15, 1963, Gideon v. Wainwright had sparked national attention because of the potential that the case would result in the appointment of counsel for poor defendants across the nation.

Gideon was represented by attorney Abe Fortas, who had been appointed by the U.S. Supreme Court.   The American Civil Liberties Union (ACLU), with leave of the Court, also joined in Gideon’s argument that defendants in state criminal cases had a constitutional right to appointment of counsel.  The Florida Attorney General represented the respondent (Corrections Director Wainwright), and the attorneys general of Alabama and North Carolina sided with Florida.  Their counterparts in 22 states, however, supported Gideon.  The number of states advocating for the right to counsel is an impressive aspect of the Gideon case.

The Court noted that in our adversary system, “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.^[1]  In ruling unanimously for Gideon, the Court recognized that our justice system requires not only this prosecutorial machinery, but also competent defense counsel to help the defendant understand the legal process, prepare the case, and advocate on his or her behalf.

Fair trials and equal justice require that regardless of financial status, defendants must have “the guiding hand of counsel at every step of the proceedings.”^[2]  Justice Black wrote for the Court that the “noble ideal” of every person standing on equal footing before the court “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”^[3]

Clarence Gideon

As we recognize the 50th anniversary of Gideon v. Wainwright, we should also realize that landmark cases are not necessarily self-executing. They establish broad principles that must be interpreted and implemented in a world of diverse viewpoints and limited resources.  Gideon’s “noble ideal” is the principle of equal justice for all persons charged with crimes.  Implementation of this principle, however, has been and remains a challenge.

The right to counsel is susceptible to court decisions^[4] and to systemic challenges such as excessive caseloads, inadequate compensation, and practices that encourage defendants to waive the right to counsel.^[5]  Our best efforts are essential, in the policy arena and in the courthouse, to help us “achieve a fair system of justice,”^[6] as envisioned by the Court 50 years ago.

Fifty years after Gideon, Wisconsin continues the state’s historical commitment to the right to counsel.  Although no jurisdiction is immune to the practical difficulties in making indigent defense a funding priority, the Wisconsin State Public Defender (SPD) is generally recognized as a model program for client-centered representation, mixed system of staff and private bar, comprehensive and innovative training programs, prompt appointment of counsel, and leadership in statewide and county justice initiatives.

Two items in the Governor’s pending budget bill are important next steps in strengthening the right recognized in Gideon.  Pay progression for public defenders is essential to maintain parity with prosecutors’ salaries^[7] and to provide both defenders and prosecutors with the ability to pursue careers in these professions.  Increased funding for private attorneys is critical to fix a biennial shortfall that has left attorneys unpaid for several months.  Other initiatives remain to be addressed, most notably an increase in the SPD pay for the private bar.  However, these two budget items, if enacted, will promote equal justice in Wisconsin.

While we honor the Gideon opinion announced 50 years ago in Washington, D.C., we should also recall what occurred five months later in Panama City, Florida.  After his conviction was reversed because he was deprived of the assistance of an attorney, Clarence Gideon again stood trial for allegedly breaking into the Bay Harbor Poolroom.  With the assistance of an attorney, he was acquitted.^[8]

^[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The Court also noted that defendants with sufficient funds find it necessary to hire attorneys.  Id.

^[2] Gideon, 372 U.S. at 345.

On February 20, the Governor introduced his proposal for the 2013-2015 biennial budget.  The items specific to the State Public Defender agency are a positive first step in the process.  Here is a brief list of those major provisions:

1.  Pay Progression for ASPDs

• The system is similar in structure to the bill that was proposed last session
• Attorneys move up to the next step on a newly-created seventeen step ladder
• Both ADAs and ASPDs received full funding, but the ADA dollar amount is higher simply due to more staff

2.  General pay adjustment for state employees

• Indications are that a general wage increase is a real possibility, per the following statement from the Governor’s office:

$61.9 million [allocated] in FY13 and $46.4 million in FY14 for compensation reserves. (The Governor’s office would not confirm a state employee raise rate, but said there would be a “wage adjustment” for all state employees).

3.  Additional funding for next biennium to eliminate structural deficit in Private Bar appropriation

4.  Increased funding for experts in Chapter 980 proceedings

• $337,000 in additional funding

 There are provisions in other agency budgets that would affect the criminal justice system and our clients.  Again, a brief list:

1.   Collection of DNA

• Collected on conviction in most misdemeanor cases
• Collected upon arrest for felonies and certain misdemeanors related to sexual assault crimes as well as certain juvenile adjudications
• Funded in part by increase in DNA surchargeCrime victim/witness surcharge made applicable to each count and judicial discretion to waive surcharge is removed

2.  Transfer of OJA to DOJ

3.  Increased funding and 73 positions to increase forensic patient capacity at Mendota

4.  Expand Coordinated Service Teams

5.  Expanded Comprehensive Community Services

6.  Creates Office of Children’s Mental Health Services

7.  Extends Foster Care age to 21 for children with an individualized education plan

We will continue to update you as the budget moves through the legislative process.  It is important to remember that we are still early in that process and there are still many points at which the budget can be altered.

 At this point it looks like agency briefings before the Joint Finance Committee may start in the last two weeks of March; followed by hearings around the state in April; Joint Finance votes beginning at the end of April or beginning of May; and final action by the full Legislature at the end of May or beginning of June.

State v. Brent T. Novy, 2013 WI 23, affirming 2012 WI App 10; case activity

Evidence excluded from state’s case-in-chief because of discovery violation is admissible as rebuttal evidence

The trial court excluded the state from presenting fingerprint evidence in its case-in-chief because the state failed to properly disclose the evidence under Wis. Stat. § 971.23(1)(g). But after Novy testified, the court allowed the state to put the evidence in during its rebuttal case. The supreme court concludes the circuit court had discretion to admit the evidence:

¶40      …[T]he discretion afforded circuit courts has been reaffirmed numerous times since the enactment of the discovery statute. See Konkol, 256 Wis. 2d 725, ¶¶15–18. In Konkol, the court of appeals determined that the circuit court had erroneously excluded rebuttal evidence, where the circuit court had concluded that the State’s use of the evidence in rebuttal was an attempt to circumvent the disclosure requirements of Wis. Stat. § 971.23(1)(d). Id., ¶¶5–7, 18. Relying on our decision in Lunde, 85 Wis. 2d at 91–92, the court of appeals in Konkol reaffirmed the principle that the proper analysis for determining whether evidence is “bona fide rebuttal evidence” is not whether the evidence could have been admitted in the State’s case-in-chief, but rather whether the evidence became necessary and appropriate upon presentation of the defense’s case. Konkol, 256 Wis. 2d 725, ¶18.

¶41      This test for bona fide rebuttal evidence effectively harmonizes the plain language of the sanctions provision in the discovery statute and the discretion of the circuit court. The sanctions provision of the discovery statute, Wis. Stat. § 971.23(7m)(a), provides that “[t]he court shall exclude” evidence for which the State failed to comply with the disclosure requirements. Here, the circuit court did just that: upon determining that the State failed to provide proper access to the fingerprint cards, that evidence and related testimony was excluded from the State’s case-in-chief.

¶42      However, notwithstanding the initial exclusion, such an exclusion need not be absolute because circuit courts retain significant discretion to admit rebuttal evidence, even when such evidence was not disclosed for use in the case-in-chief. See id. (relying on Lunde, 85 Wis. 2d at 91–92);…

Because the fingerprint evidence contradicted a claim made by Novy in his testimony, it was admissible as “necessary and appropriate” rebuttal evidence. (¶¶43-45). A concurrence by Chief Justice Abrahamson (joined by Justice Bradley) argues § 971.23 does not clearly authorize admission of physical evidence (like fingerprints) on rebuttal, but concludes any error in this case was harmless. (¶¶57-76).

If the fingerprint evidence had been used in the state’s case-in-chief it would have been primarily relevant to a bail jumping charge that was dismissed at the close of the state’s case. (¶¶9, 11). The dissent in the court of appeals (¶¶26-29) (and our post on the court of appeals’ decision) suggested that the dismissal of the bail jumping charge would make the fingerprint evidence irrelevant and turn it into inadmissible extrinsic evidence to impeach on a collateral matter—unless the now-dismissed bail jumping was proper other-acts evidence, something never considered by the trial judge or the court of appeals’ majority. The supreme court dismisses this suggestion, however. The bail jumping charge alleged Novy had unauthorized contact with the victim of a pending stalking charge, and the date of the charge occurred during the time period for a second stalking charge against the victim for which Novy was also on trial. Thus, the court says, the fingerprint evidence was still relevant to establish the course of conduct for the second bail jumping charge. (¶44 n. 8). Nonetheless, keep in mind the rule of relevancy and proper methods of impeachment, as they may sometimes give you grounds to argue to limit the state’s rebuttal.

Trial court’s finding juror was not sleeping resolves claim of denial of impartial jury

The court rejects Novy’s claim that his rights to an impartial jury and due process were denied when the trial court denied his motion to remove a juror who was sleeping during his closing argument because the trial court did not find the juror was sleeping or inattentive, a prerequisite to his motion to strike the juror under State v. Hampton, 217 Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998):

¶51      In explaining the reason for her ruling, the circuit court did not find that the juror was sleeping, and therefore, Novy did not establish a fact necessary to his motion to strike. On this record, we cannot say that the circuit court’s findings are clearly erroneous because they did not include a finding that the juror was sleeping. Because we accept such findings, we do not discuss this legal challenge further.

The concurrence disputes the majority’s reading of the record, though ultimately concludes the trial court’s finding of lack of prejudice to Novy was reasonable. (¶123). Given the court’s agreement on the result, we won’t summarize their factual dispute here; for readers with the time and inclination, the various portions of the record are set out at length in ¶¶50-51 and 77-102, and attendant footnotes.