On Point

On review of court of appeals certification; case activity: Pinno; Seaton

Issue (from certification):

Is the failure to object to the closure of a public trial to be analyzed upon appellate review under the “forfeiture standard” or the “waiver standard”?

See our previous post for further discussion.

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

1. Whether the jury instructions on self defense as it pertained to second degree reckless homicide fairly and adequately explained the defense to the jury.

2. Whether trial court erroneously excluded evidence of the victim’s reputation for violence.

Petitions for review aren’t available on the court’s website, so issue-formulation is educated guesswork based on the decision of the court of appeals. With that caveat, it appears the case presents important instructional and evidentiary issues that recur in battery and homicide cases where the defendant claims he acted in self defense.

Jackson, convicted of second-degree reckless homicide as a lesser-offense alternative to the charge of first-degree intentional homicide, argued that his theory of self-defense was impeded by the judge’s omission of the following language from the instructions: “If the defendant was acting reasonably in the exercise of the privilege of self-defense, his conduct did not show criminally reckless conduct.” The court of appeals rejected the argument, stressing that this language isn’t part of the pattern self-defense instruction and that the instructions added substantial defense-requested language emphasizing the role of self-defense in the various types of homicide. (¶14).

Because Jackson was charged with intentional homicide but got lesser-offense instructions on first- and second-degree reckless homicide and argued self-defense, there was no doubt a welter of instructions dealing with intentional and reckless crimes and, concomitantly, the two standard methods for instructing on self defense that correspond to those crimes (Wis. J.I.-Criminal 801 and 805). As noted in our post on the court of appeals decision, there is a question whether the standard instructions explain the entire connection between the element for first degree reckless conduct, with its “utter disregard” element, and self-defense, though Jackson was convicted of second-degree reckless, which does have an “utter disregard” element, and wasn’t able to make that argument. Be that as it may, the supreme court’s decision in this case will clarify whether the standard instructions on these issues are correct or need to be revisited.

On the second issue, Jackson sought to introduce evidence of the victim’s reputation for violence, citing three specific incidents of assaultive behavior. But Jackson did not know of those incidents at the time of the shooting, so it would not constitute evidence under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (evidence of the putative victim’s violent character is admissible only if the defendant knew of same). Instead, he argued the victim’s reputation for violence was offered to prove the victim’s motive, opportunity, and lack of accident or mistake, and so was admissible under Wis. Stat. § 904.04(2)(b) (allowing “evidence of a pertinent trait of character of the victim of the crime offered by the accused”) and provable by evidence of reputation or of specific instances of conduct if the character trait is an essential element of a charge, claim or defense under § 904.05. The court of appeals held the victim’s character trait was not relevant to the self defense claim because Jackson didn’t know about it. (¶20). If this issue was renewed in the petition, the case will clarify the admissibility of reputation evidence not otherwise admissible under McMorris.

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

1. Whether there was sufficient proof that Mary F.-R. evidenced a “substantial probability of physical harm” to herself or others and was therefore dangerous under Wis. Stat. § 51.20(1)(a)(2).

2. Whether Wis. Stat. § 51.20(11) is an unconstitutional violation of equal protection because it provides for a jury of six in ch. 51 trials, while a person whose commitment is sought under ch. 980 is entitled to a jury of twelve.

Petitions for review aren’t posted on the court’s website, so issue-formulation requires some educated guesswork. The listed issues above are taken from the decision of the court of appeals. Whether Mary F.-R. has renewed both issues, or recast one or both in some way, remains to be seen. With that caveat, here’s some background.

As explained in our prior post about the case, the court of appeals rejected Mary F.-R.’s claim the evidence was insufficient to support the jury’s “dangerousness” finding. While the supreme court would not ordinarily grant review just to address sufficiency of the evidence in a particular case, this case does have the additional issue about the size of a jury under ch. 51. In any event,  some guidance on the question of what constitutes sufficient evidence to commit under § 51.20 would be welcome, as lawyers who handle ch. 51 cases sometimes marvel at how little evidence it takes.

On the second issue the basic argument is that persons committed under ch. 980 and ch. 51 are “similarly situated” for purposes of equal protection analysis, State v. Williams, 2001 WI App 263, 10, 249 Wis. 2d 1, 637 N.W.2d 791; thus, ch. 51 respondents should, like those under ch. 980, get a 12-person jury. The court of appeals held Mary F.-R. had forfeited the claim by not raising it in the trial court, but the supreme court can decide an issue even if it was not raised in the circuit court. County of Columbia v. Bylewski, 94 Wis. 2d 153, 171-72, 288 N.W.2d 129 (1980). If the issue was renewed in the petition for review, then, the supreme court will presumably reach it despite the forfeiture.

State v. James G. Brereton, 2013 WI 17, affirming 2011 WI App 127; case activity

Search and seizure of vehicle — attaching GPS tracking device

After lawfully stopping Brereton, the police removed him from his car, towed it to a lot, and, after obtaining a warrant, attached a GPS tracking device. The car was returned to Brereton, and ensuing monitoring led to information connecting him to a crime. Brereton challenged the seizure of his vehicle, contending it was not supported by probable cause. He also claimed the GPS tracking of his vehicle used more advanced technology than contemplated under the warrant, resulting in an unreasonable execution of the warrant. The court rejects both arguments:

¶2   First, we conclude that the seizure of Brereton’s vehicle was supported by probable cause that the vehicle was, or contained, evidence of a crime, and was therefore permissible under the Fourth Amendment.  The seizure was supported by witnesses’ reports that a car matching the make, model, and license plate number of that particular vehicle had been seen at the locations of recent burglaries in the area.  Additionally, after officers lawfully stopped Brereton and his co-defendant Brian Conaway in the suspect vehicle, they discovered that the vehicle identification number (VIN) did not match the license plate, and that the occupants of the vehicle were notably similar to the two men seen at multiple recent burglaries.  Accordingly, the three-hour seizure of Brereton’s vehicle, whereby officers were able to install the GPS device, did not constitute an unreasonable seizure under the Fourth Amendment, as applied to automobiles.  Moreover, in light of Brereton’s Fourth Amendment interest in avoiding government usurpation of his property for the purpose of conducting surveillance on him, the officers’ decision to obtain a warrant prior to conducting the GPS search was proper.

¶3   We also conclude that the technology used in conducting the GPS search did not exceed the scope of the warrant allowing GPS tracking of Brereton’s vehicle.  Judge Carlson issued the warrant based on the probable cause set forth through the facts recited in a detective’s affidavit.  The affidavit and warrant’s language contemplated the installation of a GPS device that would track the vehicle’s movements.  That the device provided officers with real-time updates of those movements did not alter the kind of information to be obtained under the warrant, or the nature of the intrusion allowed.  Therefore, the officers’ execution of the warrant was not unreasonable. Accordingly, we affirm the decision of the court of appeals.

The court of appeals, which also held that both the seizure of Brereton’s vehicle and the particular GPS device used were reasonable, issued its decision before United States v. Jones, 132 S. Ct. 945 (2012),  so the supreme court’s decision takes Jones into account.

Jones held that placing a GPS device on a car and using that device to monitor the car’s movements constitute a search, with the majority basing its decision on common-law trespass doctrine extant at the time of the Founding: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” 132 S. Ct. at 949. While the police in Jones had a warrant, they attached the device one day after the warrant expired and in a neighboring jurisdiction, so the government was left to argue that attaching the device was not a search—a claim all nine justices rejected, though for different reasons. In light of Jones, the court acknowledges that placing the device on Brereton’s car was a search, and even adopts the rationale of the concurrences that warrantless GPS tracking would constitute a search even in the absence of a trespass because it violates a subjective expectation of privacy that society recognizes as reasonable. (¶34, citing Jones at 954–55 (Sotomayor, J., concurring)).

Beyond the fact the case is our supreme court’s first gloss on Jones, note that the court held that the three-hour warrantless seizure of the car to install the device was reasonable under the cases establishing the so-called “automobile exception” to the warrant requirement, such as United States v. Ross, 456 U.S. 798 (1982),  and Chambers v. Maroney, 399 U.S. 42 (1970). (¶¶41-44). The majority’s analysis on this point is criticized by Chief Justice Abrahamson’s dissent, which concludes the seizure was unreasonable because it was too long, was not based on any exigency, and didn’t involve a search of the car for evidence, but instead transformed the car into a surveillance device—and that itself requires a warrant, as the majority acknowledged. (¶¶69-84).

Warrant — scope; coverage of particular GPS device

The court rejects Brereton’s complaint that the particular device the police used was not covered by the warrant, holding that the language in the affidavit did not bind law enforcement to a specific GPS technology and that a device with instantaneous transmission of the car’s location, as opposed to one that stores the information for later download, did not alter the kind of information transmitted. (¶¶45-54).

The court’s conclusion on this issue should not be taken to mean the type of GPS technology employed will never matter. As noted above, the court expressed agreement with the Jones concurrences, which were concerned about GPS technology allowing the government to secretly monitor and catalogue every single movement of a person’s car for a long period of time, creating a wealth of detail about the person’s life and associations. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) and 964 (Alito, J., concurring). While instantaneous transmission may not heighten that concern, continuous (or very frequent) location readings certainly do, so the use of that type of technology might yield a different result.

State v. Scott B. Bohlinger, 2013 WI App 39; case activity

Bohlinger made a prima facie showing that two prior OWI convictions were invalid because he did not knowingly and intelligently waive the right to counsel due to his limited cognitive capabilities. The circuit court concluded he had not made such a showing because he did not allege any deficiency in the colloquies addressing the waiver of counsel in the earlier cases. The court of appeals reverses, concluding an allegation of a deficient colloquy is not the only way to establish a prima facie case:

¶18      Neither the circuit court nor the State has pointed to any authority for the proposition that a defendant must allege a defective waiver colloquy in order to make a prima facie showing that his or her right to counsel was violated in an earlier case.  No such requirement is set forth in [State v.] Ernst [2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92].  Instead, Ernst states that a defendant must point to “specific facts” showing that he or she did not actually know or understand the information that should have been provided in the earlier proceeding, and therefore did not execute a knowing, intelligent, and voluntary waiver of counsel.  See id., ¶¶25-26.  While Ernst states that a defective colloquy “can form the basis for a collateral attack” when supported by additional evidence, it does not hold that a defendant must allege a defective colloquy in order to state a prima facie case.  See id., ¶37 (emphasis added). The circuit court therefore erred by determining, as a matter of law, that Bohlinger could not make a prima facie showing that his right to counsel was violated without alleging that the waiver colloquies in the 2008 and 2009 cases were deficient.

The court also notes that Iowa v. Tovar, 541 U.S. 77, 88 (2004), recognized that the information a defendant must possess to execute a valid waiver of counsel depends on “a range of case-specific factors, including the defendant’s education or sophistication[.]” To the court “[t]his suggests that, even if a transcript from a previous case evidences a facially valid waiver colloquy, a court may consider factors outside the transcript to determine whether the waiver was actually knowing, intelligent, and voluntary.” (¶19).

The court’s holding is a logical extension of the law governing collateral attacks on uncounseled prior convictions. And while it may look like a significant expansion of the ability to mount a collateral attack, this line of argument is going to be limited to cases where the facts can be marshaled to show a lack of capacity to waive counsel, as this case itself illustrates. Bohlinger submitted what the court calls “ample evidence” about his limitations. (¶20). Specifically: Attached to his motion was an affidavit stating that he has trouble reading and understanding information and that he did not understand the information provided to him during the earlier proceedings; also attached was a report from a psychologist that he suffers from “mild mental retardation or cognitive disability.” In addition, the psychologist and one of Bohlinger’s special education teachers testified at the motion hearing. (¶¶5-12). Even the circuit court admitted that the evidence showed Bohlinger did not have the cognitive capability to waive his right to counsel. (¶13). And while Bohlinger has now established his prima facie case, the state still gets the chance on remand to prove he did make a knowing waiver of counsel. (¶21).

State v. Juan G. Gracia, 2013 WI 15; affirming unpublished court of appeals decision; case activity

Warrantless Entry – “community caretaker” exception

Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine because the police had an objectively reasonable basis to believe Gracia needed assistance, distinguishing State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505:

¶21  Although some of the facts here appear similar to those in Ultsch, the officers in this case had an objectively reasonable basis to believe Gracia needed assistance.  First, there was more damage to Gracia’s vehicle than there was to Ultsch’s.  In Ultsch, the damage was confined to the left front fender and was described by the court of appeals as “limited damage.”  Id., ¶¶19, 28.  Here, not only was a traffic signal completely knocked down, but the front end of the vehicle was essentially caved in, pieces of the bumper were left at the scene, and the front license plate was entirely ripped off.  Second, the police consistently stated their concern for Gracia in this case, whereas in Ultsch, the police did not even tell Ultsch’s boyfriend about their suspicion that Ultsch might be injured and in need of assistance.  Although it is only one factor to be taken into consideration in judging the objective beliefs of police, the subjective intent of the officers is relevant.  In this situation, the police immediately told Gracia’s brother about their concern for Gracia’s safety.

¶22  There were other facts supporting an objectively reasonable view that Gracia was hurt. As discussed above, the damage at the scene of the accident and to the car observed at Gracia’s house was extensive.  In addition, Gracia’s brother appeared concerned about Gracia’s safety. After going into the house without police, he returned to the front door and allowed the police inside the house, and he subsequently broke open the door to Gracia’s bedroom.  The brother’s actions provide further support that there was a genuine belief that Gracia might be in need of assistance.  For all of these reasons, the police were exercising a bona fide community caretaker function.

The court also reiterates its holding in State v. Kramer, 2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598—that when the totality of the circumstances show an objectively reasonable basis for the community caretaker function, that basis is not negated by the officer’s subjective law enforcement concerns. The court accordingly rejects Gracia’s argument that the officers’ desire to investigate the reason for the crash cuts against the reasonableness of their belief that Gracia was hurt. (¶¶18-19).

Finally, the court finds the community caretaker function was reasonably exercised under the long established test that balances the public interest or need furthered by the officer’s conduct against the intrusion of the defendant’s privacy interest in light of: 1) the public interest in the safety of drivers in serious accidents and the apparent exigency of the situation; 2) the fact that the police did not forcibly enter, as Gracia’s brother let them in the house and forced open the bedroom door; and 3) the limited effectiveness of the alternatives to the entry—namely, leaving Gracia to his brother’s care. (¶¶23-29).

Basically an application of existing law to the facts, though with the twist that, once the police were in the home, Gracia yelled through the bedroom door for them to “go away.” The majority concludes this does not make the entry into Gracia’s bedroom unreasonable because Gracia’s brother broke open the door and, in any event, Gracia could still have been seriously hurt even though he wanted police to go away. (¶¶26, 28-29). Justice Abrahamson’s dissent takes issue with this, saying Gracia’s directive to the police to “go away” “is the same unequivocal refusal to permit entry at the threshold for which the United States Supreme Court rendered a warrantless search unreasonable in Georgia v. Randolph, 547 U.S. 103 (2006).” (¶44). She and Justice Bradley also join the dissent by Justice Prosser which, after its own recital of the law and facts, concludes the entry was not a valid community caretaker function and puts special emphasis on the fact this was an entry into a home (and then a nonconsensual entry to a private room in that home) that should be subject to stricter scrutiny. (¶¶68-70, 79-82).

OWI – Collateral attack on prior conviction

Gracia validly waived counsel in a prior (1998) OWI conviction used to enhance the present OWI, as the record shows he did not hire an attorney in 1998 because he was guilty and the recommendation was for the minimum: “This demonstrates a calculated decision on Gracia’s part not to spend the money to hire an attorney in such a situation…. We agree with the circuit court’s determination that when he waived his right to counsel Gracia made a cost-benefit decision and knew what he was giving up.” (¶37) The court also affirms the court of appeals’ conclusion that the law does not require that Garcia had to understand every possible type of defense, but needed only a general understanding of the difficulties and disadvantages of self-representation. The record shows he had this understanding, so the court rejects Gracia’s claim that the explanation of the difficulties and disadvantages were not explained fully enough. (¶¶33, 36).

State v. Wyatt D. Henning, 2013 WI App 15; case activity

The crime of attempted possession of a firearm by a felon is recognized in Wisconsin, distinguishing State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998):

¶14      Turning to the particular language of the felon in possession of a firearm statute, and the case law further explaining the elements of that crime, we see no reason to preclude attempt liability.  Wisconsin Stat. § 941.29(2) states that a person who has been previously convicted of a felony “is guilty of a Class G felony if he or she possesses a firearm … subsequent to the conviction for the felony….”  This offense has two elements: “(1) the defendant has been convicted of a felony; and (2) the defendant possessed the firearm.”  Black, 242 Wis. 2d 126, ¶18.  As we have established, “possession” means that the defendant knowingly had the firearm under his or her actual physical control.  Id., ¶19; Wis JI—Criminal 1343.  Unlike felony murder or reckless homicide, or other crimes with no state of mind element, the felon in possession of a firearm offense requires proof of knowledge.  This makes the offense amenable, even under Briggs, to be charged as an attempted crime.

Briggs held a person could not be charged with attempted felony murder under Wisconsin law because “one cannot attempt to commit a crime which does not itself include an element of specific intent.” Id. at 66. Henning relied on that statement to argue that an offense may be charged as an attempt only when the underlying crime includes intent as an element. The court says that the statement does not establish a general attempt rule or address whether possession crimes may be charged as attempted crimes. (¶¶9).

True or not, the resolution of the issue ultimately comes down to the fact that the element of “possession” has an intent (or knowledge) aspect, and so is amenable to an attempt charge. This reasoning is in keeping with other cases where the court has found intent imported into a crime through a definition or other statutory language. State v. Robins, 2002 WI 65, 253 Wis. 2d 298, ¶¶29-30, 646 N.W.2d 287 (attempted child enticement can be charged because enticement statute contains specific, enumerated, prohibited intents); State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, ¶¶11-13, 653 N.W.2d 284 (sexual contact explicitly requires “intentional touching,” and so supports a charge of attempted assault by contact); State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, ¶¶18-21, 671 N.W.2d 700 (sexual intercourse includes sexual contact, so under Grimm attempted sexual intercourse can be charged);.

The court also held the evidence was sufficient to prove Henning unequivocally intended to possess a firearm, where Henning got into a heated argument with his girlfriend and threatened to kill her; told Kettle, a co-worker, that he was mad at his girlfriend, and asked Kettle whether he had a pistol—though Kettle could not recall Hennings exact words:

¶21      …. Regardless how Henning phrased the question, it is undisputed that Henning made an inquiry about a pistol and that Kettle would not or could not provide Henning with a pistol.  Under these facts, the only reasonable inference that could be fairly drawn is that Henning inquired about a pistol because he was attempting to locate a firearm that he could possess for purposes of threatening or harming his girlfriend.  Moreover, his inquiry about a firearm demonstrates that Hemming formed an intent to possess a firearm and would have but for the fact that Kettle would not or could not provide one….

Finally, the court held that the prosecutor’s misstatement of the evidence in closing did not entitle Henning to a new trial in the interest of justice. (¶¶22-26).