On Point

State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly denied the defendant’s Wis. Stat. § 974.06 postconviction motion, which claimed that his trial  lawyer was ineffective for not objecting to references to the truthfulness of his confession during a Goodchild hearing to determine voluntariness of the confession and that his postconviction lawyer was ineffective for failing to challenge his trial lawyer’s effectiveness. It is well settled that the truthfulness of a confession can play no role in determining whether the confession was voluntary, yet Stream was asked questions about the truthfulness of his confession during the suppression hearing by both the prosecutor and his own lawyer. (¶¶2-3, 10). The court concludes, however, that Stream has not shown that the trial court relied on the truthfulness of the confession in finding it was voluntary. Thus, even if his lawyers performed deficiently, Stream has not shown prejudice. (¶¶11-12).

Stream does not fare as well as his co-defendant, Agnello, whose trial lawyer did object to questions about the truthfulness of the confession. While the trial court overruled the objection, the supreme court held the trial court erred and so reversed and remanded the case for a new hearing at which the state would have to prove his confession was voluntary. State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999). (¶¶4-5). An illustration, then, of how the same error can play out differently based on whether trial counsel objects or not. Agnello’s lawyer’s objection meant the state had to prove the trial court’s error was harmless, while Stream had the burden to prove both deficient performance and prejudice.

State v. Robert L. Tatum, Case No. 2011AP2439-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

Denial of right to self-representation – competence to represent oneself

The circuit court properly denied Tatum the right to represent himself based on his limited education and understanding of legal procedures, as evidenced by his statements and behavior in court. (¶13). While the circuit court found Tatum competent to proceed under Wis. Stat. § 971.14, that standard differs from competence to represent oneself. (¶12).

Search and seizure – probable cause to search; automobile exception

Police had probable cause to search Tatum’s vehicle for evidence of a shooting based on various witness statements about his connection to the house where shooting occurred and the whereabouts of his car. (¶¶7, 23). Further, the car was lawfully searched and seized without a warrant under the automobile exception, which is based on the ready mobility of cars, even though Tatum had been arrested and claimed it was his “primary residence” and therefore entitled to greater privacy. (¶¶7, 24-25).

State v. John Doe, 2012AP414-CR, District 1, 1/23/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly exercised its discretion in denying the defendant’s motion for sentence modification based on his assistance to law enforcement. The circuit court considered the factors established by State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, for determining when post-sentencing assistance to law enforcement is a new factor, and concluded that the defendant’s assistance was not significant and useful. (¶¶7, 9-10). The defendant was not called to testify in the case in which he provided assistance because the prosecutor believed he had damaged his credibility by his conduct in the case in which he was seeking sentence modification and because other witnesses could provide the same evidence the defendant provided.

State v. Kevin O’Connor, 2012AP1638-CR, District 2, 1/23/12; court of appeals decision (1-judge, ineligible for publication); case activity

Police lawfully stopped defendant because the vehicle he was driving did not have a visible front license plate. While there are exceptions to  the statute requiring vehicles to display a front plate (Wis. Stat. § 341.15), the “great majority” of vehicles on the road are required to have a front plate. Because the officer did not see one on the defendant’s truck, he was justified in stopping the defendant to investigate further. (¶¶8-9). Further, the officer’s failure to state he was aware of the exceptions to the front-plate rule does not mean he made a mistake of law that invalidated the stop under State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999); he testified he believed a front plate was required in this case and so could stop the vehicle to investigate further. (¶¶4-5, 9 n.3).

State v. Jack Minniecheske, 2012AP1133, District 3, 1/23/13; court of appeals decision (1-judge, not eligible for publication); case activity

 Because Wis. Stat.  § 950.04(1v)(m) gives victims the right to provide statements at sentencing, the circuit court properly considered a victim impact statement despite defendant’s objection to it as “frivolous” and his claim the victim stole his property. “Moreover, given Minniecheske’s sentence, a fine and costs, there is no indication in the record that the court sentenced Minniecheske more harshly because of the allegations in the victim impact statement.” (¶8). The court also rejects the defendant’s claim that the submission of the victim impact statement means he should be allowed to withdraw his plea: “The [circuit] court’s review of the victim impact statement does not amount to a manifest injustice.” (¶9).

State v. Tamara Jo Potter, 2012AP1605-CR, District 3, 1/23/13; court of appeals decision (1-judge, ineligible for publication); case activity

Police lawfully stopped the defendant based on information from an anonymous tip that was corroborated by the officer’s observations. Minnesota police told Douglas County dispatch that it had received a tip of a “swerving” car heading into Superior. An officer in Superior located a car meeting the description and followed it. The officer stopped the car after independently observing it “drift” in its lane of travel. (¶¶2-4). Analogizing to Alabama v. White, 496 U.S. 325 (1990), the court concludes that the officer’s corroboration of the information in the tip gave the tip indicia of reliability. (¶¶12-13). Further, distinguishing State v. Post, 2007 WI 60, ¶38, 301 Wis. 2d 1, 733 N.W.2d 634 (weaving within a single traffic lane doesn’t provide reasonable suspicion), the court concludes that the information in the tip, along with the officer’s observations of driving like that described in the tip, provided reasonable suspicion to stop the vehicle. (¶¶14-16).

State v. Viliunas, 2012AP2284-CR, District 2, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity

State’s destruction of video from police car’s dashboard camera did not violate OWI defendant’s due process rights. The defendant, who was found in the driver’s seat of a ditched car, claimed another person had been driving—although not until his jury trial, which occurred over a year after the incident, and after Viliunas had missed two earlier trial dates. The video was destroyed six months after the incident in compliance with police department policy. (¶¶2, 4-5). Applying State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, the court rejects Viliunas’s claim:

¶6        The State’s destruction of evidence violates a defendant’s due process rights if the police (1) failed to preserve evidence that is apparently exculpatory or (2) acted in bad faith by failing to preserve potentially exculpatory evidence. [Munford, 330 Wis. 2d 757, ¶20]. Since Viliunas does not argue that the police acted in bad faith, he must show that the evidence was apparently exculpatory as opposed to potentially exculpatory. See id  In order to do so, he must demonstrate that “(1) the evidence destroyed ‘possess[ed] an exculpatory value that was apparent to those who had custody of the evidence … before the evidence was destroyed,’ and (2) the evidence is ‘of such a nature that the defendant [is] unable to obtain comparable evidence by other reasonably available means.’” Id., ¶21 (citation omitted) …

¶7        Viliunas argues that the exculpatory value of the evidence was apparent based on his testimony conflicting with Schmitz’s testimony. The problem with Viliunas’ argument is that the conflicting testimony occurred after the video was destroyed by police. As the trial court noted in its decision, while the dash cam video might have shown whether the car was running when the police arrived, it would not have shown whether the keys were in the ignition. And even if the car was not running, finding Viliunas in the driver’s seat of his vehicle in a ditch with the keys in the ignition would be sufficient to circumstantially prove that Viliunas drove the vehicle into the ditch. See State v. Mertes, 2008 WI App 179, ¶16, 315 Wis. 2d 756, 762 N.W.2d 813. In other words, there was nothing apparently exculpatory about the video at the time of its destruction.