On Point

State v. Jacob Turner, 2013 WI App 23;  case activity

Addressing an unusual set of facts, the court of appeals holds Turner’s constitutional rights to an impartial jury and due process were not violated by the seating of a juror who had not been summoned for service and who did not disclose that to the court.

A summons for jury duty was sent to “John P. Smith” (a court-supplied pseudonym). The summons did not include any other identifying information. But there were two John P. Smiths—father and son—at the address the summons was sent to. Because the father had recently served jury duty, they assumed the summons was for the son. To confirm their assumption they tried calling a phone number on the summons but got only an automated recording. Accordingly, the son reported to court and served on the jury that convicted Turner. The summons, unbeknownst to the Smiths, was for the father. (¶¶1, 3-4). Though the son was not the summoned juror, he still met the requirements for serving on a jury. He was unbiased, qualified for service under Wis. Stat. § 756.02, and survived voir dire. (¶7).

The court rejects Turner’s claim that the son was not the “true” John P. Smith” to whom the summons was directed and that he lacked candor because he did not voluntarily disclose his doubts about whether he was the “John P. Smith” who was summoned: “The fact is that ‘John P. Smith’ who lived at the address listed in the summons appeared for jury duty and never misrepresented who he was. The fact that the clerk’s office meant to summon a different ‘John P. Smith’ at the same address does not make the son an improper juror.” (¶7). Moreover, there is no indication the son tried to conceal any information or give incorrect answers during voir dire and no showing that questions relating to the summons—or answers the son might have given—were material to jury selection. (¶10). Finally, there is nothing to show that impaneling the son instead of the father affected the trial:

¶8        To uphold Turner’s conviction, we must find that the circuit court made an error in determining beyond a reasonable doubt that, absent the son innocently and unknowingly serving in the place of his father in the jury selection process, a rational jury would have convicted Turner. See Carlson, 261 Wis. 2d 97, ¶46. Turner argues that the confidential nature of jury deliberations prevents a court from reaching a level of certainty “beyond a reasonable doubt” as to what the son’s impact was on the jury verdict. Turner’s proffer suffers a fatal flaw: He did not have the father or son testify at the postconviction hearing to show how or why he would have struck the son from the panel had he known the father was the true “summoned” juror. Turner chose not to explore this issue as he had presumably read the transcript from the court’s hearing, which showed no bias or prejudice on the part of either. We uphold Turner’s conviction.

¶9        Like the circuit court, we do not see what difference the innocent error of the son serving instead of his father would have made on the outcome of this case. Turner may not rely on “merely speculative or hypothetical” theories of how he might have been harmed by the error in seeking a new trial. See State v. Mills, 107 Wis. 2d 368, 372, 320 N.W.2d 38 (Ct. App. 1982). The circuit court did not err in finding that the “innocent” error did not affect the outcome of Turner’s case.

 The court also rejects Turner’s claim that his right to be present was violated when, upon learning of the error, the court held a hearing without notifying either the State or Turner, took testimony from the father and son, and concluded that it thought the error was “an honest mistake. (¶4). The court then notified both the state and Turner of the issue after the hearing and said it would take no further action unless either party requested a hearing. This procedure did not violate Turner’s right to be present:

¶12      ….Turner theorizes he might have uncovered additional evidence if he had been able to question the father and son at the court hearing, but he does not explain why he did not summon the father and son to his later motion hearing. A transcript of the court’s hearing was made available to the parties and was relied upon by Turner at his motion hearing. Turner was given an opportunity at his motion hearing to present evidence but he chose only argument. We find that the error by the court in holding the evidentiary hearing without the presence of the State and the defendant was harmless.

As already noted, an unusual set of facts addressing an issue that should not arise often–and could have been avoided here. The opinion doesn’t spell out how the court learned the wrong juror was seated, but Turner’s brief (at pp. 4-7) says a bailiff suspected the wrong juror had reported because when prospective jurors check in the bailiff verifies their date of birth; however, the bailiff but did not bring the matter to the judge’s attention until after the trial.

State v. Verhagen, State v. Nickles,  State v. Van Asten, and State v. Bell, 2013 WI App 16; consolidated court of appeals decision; case activity: Verhagen; Nickles; Van Asten; and Bell

OWI – Use of first offense to enhance penalty

In a prosecution for a second or subsequent OWI offense, New Jersey v. Apprendi, 530 U.S. 466 (2000), does not require the state to prove the elements of an underlying first-offense OWI beyond a reasonable doubt in order to use the first offense as a penalty enhancer:

¶26      The appellants contend their first-offense OWIs should not be counted because their convictions for those offenses were secured without the procedural safeguards of a criminal trial.  Specifically, the appellants contend that a “prior conviction” under Apprendi must be based on a judgment from a proceeding in which the defendant had a right to a jury trial and the State bore the burden of proof beyond a reasonable doubt.  Verhagen correctly notes that in a civil prosecution, there is no right to a twelve-person jury, and the verdict need not be unanimous.  See Wis. Stat. § 756.06(2) (six-person jury in forfeiture actions); § 805.09(2) (five-sixths of jurors must agree on verdict).  In addition, the burden of proof in a civil OWI prosecution is “clear, satisfactory, and convincing” evidence.  See Wis. Stat. § 800.08(3).

¶27      We believe the appellants read too much into Apprendi.  Notably, the Supreme Court did not declare unconstitutional enhanced penalties based on prior convictions obtained in the absence of the jury guarantee and criminal burden of proof.  See Apprendi, 530 U.S. at 488…. Indeed, it appears what constitutes a “prior conviction” under Apprendi is a disputed matter among the federal courts of appeal.  See, e.g., United States v. Smalley, 294 F.3d 1030, 1032 (8th Cir. 2002) (disagreeing with United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001)).  The Smalley court expressed skepticism that “it is not only sufficient but necessary” that a conviction underlying an enhanced penalty be secured through a jury trial by proof beyond a reasonable doubt to qualify for the Apprendi exception.  Smalley, 294 F.3d at 1032.

¶28      We cannot, nor will we attempt to, resolve this dispute among the federal courts today, as Wisconsin law provides adequate guidance.  Constitutional due process and jury trial requirements do not compel the determination of a prior conviction at trial.  Saunders, 255 Wis. 2d 589, ¶44 (citing Apprendi, 530 U.S. at 490; Almendarez-Torres, 523 U.S. at 230).  Prior OWI convictions are at most a “status element” to be submitted to the sentencing judge after the verdict has been rendered.  See Saunders, 255 Wis. 2d 589, ¶46; State v. Alexander, 214 Wis. 2d 628, 650, 571 N.W.2d 662 (1997).

Though the court goes on to note that Wisconsin’s OWI penalty structure has been held to be constitutional, it cites cases decided before Apprendi (¶29), thus sidestepping the crucial issue: Can a civil judgment can count as a “conviction” under Apprendi? The court does acknowledge this is a “disputed matter” and it has arisen most often with respect to juvenile adjudications, which were at issue in the two cases cited by the court, Tighe and Smalley. At least in Wisconsin, an OWI 1^st is like a juvenile adjudication in that there is no right to a unanimous 12-person jury; but they differ in that a juvenile has a right to counsel and to proof beyond a reasonable doubt, compared to no right to counsel and the lower standard of clear and convincing evidence in the OWI 1^st.

The majority of courts that have considered the question have said juvenile adjudications do count as “convictions” despite the lack of the standard criminal procedural protections. The Seventh Circuit recently joined the majority in Welch v. U.S., 604 F.3d 408 (7th Cir. 2010), but over a dissent by Judge Posner, who stressed Apprendi’s reference to prior convictions being based on a finding of guilt beyond reasonable doubt by a jury. Thus, while this case may settle the issue for now with respect to OWI 1^st cases in Wisconsin, the larger question will obviously have to be resolved by the U.S. Supreme Court.

OWI – collateral attack on prior uncounseled conviction; sufficiency of showing

Van Asten’s collateral attack on one of his prior criminal OWI convictions fails because the minute sheet of his plea hearing in that prior case show he was advised of his right to counsel and the charges and penalties; minutes from a later hearing showed he asked for more time to get an attorney; and, at the hearing on his collateral attack motion, he admitted he had unsuccessfully sought a public defender. A belated attempt to argue in his reply brief that he was not advised of the difficulties and disadvantages of proceeding pro se is rejected as undeveloped and not supported by his testimony that he could not remember the earlier proceedings.

State v. Jeremiah J. Purtell, 2012AP1307-CR, District 2, 3/7/13  (not recommended for publication); petition for review granted 11/20/13.  Case activity.

This case concerns a probation agent’s search of the defendant’s computers.  Following a conviction for 2 counts of animal cruelty, a court placed the defendant on probation and imposed a condition that he not own or possess a computer.  Eventually, the agent removed two computers from the defendant’s home, looked at the contents of one and became concerned about images of sex involving underage females.  Based on that, the police obtained a warrant to search the computers further and found images and videos of young children engaged in sex.  The State charged the defendant with 8 counts of possession of child pornography.  The defendant unsuccessfully challenged the search (not the seizure) of the contents of his computers.  Subsequently, a jury convicted him of 4 counts.

Probation search issue:  Whether the probation agent had reasonable grounds to believe the defendant’s computers contained contraband, defined as “any item that [the defendant] was not allowed to possess under the conditions of his supervision or any item whose possession is forbidden by law.”  (Slip. op.,  ¶11).

Holding:  No, for two reasons: (1) “The conditions of [the defendant’s] probation did not prohibit him from possessing images depicting cruelty to animals or the mutilation of animals . . . [a]lthough it seems in hindsight that such a condition should have been imposed . . .” and (2) “the State fail[ed] to point to reasonable grounds supporting the probation agent’s belief that the computers contained something that was otherwise illegal to possess.” (Slip op., ¶¶ 12-13).  It pointed only to “generally suspicious” behavior.  That was not enough, so the court of appeals reversed the circuit court’s denial of the defendant’s suppression motion.

Forfeiture of issue/ineffective assistance of counsel:

The defendant’s trial counsel failed to argue that possession of pictures of animal abuse did not violate a condition of probation or any law.  The State then neglected to argue that the issue was forfeited.  So the court of appeals considered raising forfeiture sua sponte, but decided against it partly because the parties had not briefed the issue.  The court further noted that if it had affirmed the circuit court’s decision due to forfeiture, the defendant could present “ meritorious allegations of ineffective assistance of counsel” and “it appears that trial counsel’s failure to raise the issue was deficient and prejudicial.”  (Id. at ¶15).

Given that the defendant prevailed on the suppression issue, one wonders why the court bothered with that comment.  Perhaps some enterprising appellate lawyer can put it to good use in another case.

State v. Tavoris A. Murphy, Sr., 2012AP505-CR, District 4, 2/28/13; court of appeals decision (not recommended for publication); case activity

Murphy argues the circuit court erred when it found good cause for the state’s late disclosure of a letter written by the defendant and ruled the letter would be admissible as rebuttal evidence. (¶¶1, 20, 22). The letter was written to DeKeyser, a defense witness, and outlined DeKeyser’s testimony. (¶¶1, 16). Murphy claims the trial court’s ruling kept the defense from calling DeKeyser and was an important factor in Murphy’s decision not to testify and that the testimony of Murphy and DeKeyser “would have provided an alternative narrative to critical aspects of the inconsistent and compromised testimony of the State’s witnesses….” (¶24).

In a very fact intensive opinion, the court of appeals concludes that even if the letter was inadmissible, the trial court’s error was harmless. (¶22). The court holds the jury already weighed the credibility of the State’s witnesses in light of all of the problems they presented—and the contradictions and convolutions of the state’s case are set out in some detail in the opinion (¶¶2-15). DeKeyser’s and Murphy’s anticipated testimony would not have aggravated those weaknesses and would have added only inconsequential details. (¶25-27). Therefore, Murphy is not entitled to a new trial.

Village of Spring Green v. Michael D. Deignan, 2012AP1303, District 4, 2/28/13; court of appeals decision (1-judge, ineligible for publication); case activity

The court of appeals rejects the claim that § 175.40(6), which authorizes an officer to arrest or provide aid or assistance anywhere in the state under written inter-agency agreements, should govern the lawfulness of defendant’s arrest because it is more specific than Wis. Stat. § 175.40(2), which authorizes an officer to arrest while engaging “in fresh pursuit” anywhere in the state:

¶14      …. The two statutes address different exercises of extra-territorial authority by peace officers in the state. Neither is more specific than the other; in each the legislature provided the parameters for officers to act outside their jurisdictions in distinctly different scenarios. Accordingly, Deignan’s argument that § 175.40(6) rather than § 175.40(2) must apply because it is the more specific of two statutes that address the same subject matter, fails.

Deignan’s argument is that the two statutes concern the same subject matter and, therefore, the more specific statute applies. (¶¶8, 10). But the rule that a more specific statute controls over a more general statute applies where statutes conflict, State ex rel. Hensley v. Endicott, 2001 WI 105, ¶19, 245 Wis. 2d 607, 629 N.W.2d 686, because if the statutes don’t conflict, both can and should be given effect. The court concludes the fresh pursuit and mutual aid statutes don’t conflict because they address different situations and impose different requirements relevant to those distinct situations. So if fresh pursuit justified the arrest, the lack of justification under the mutual aid statute doesn’t matter.

A Village of Spring Green police officer was authorized to stop and arrest the defendant outside the village limits because he was in fresh pursuit under § 175.40(2) and case law, e.g. City of Brookfield v. Collar, 148 Wis. 2d 839, 436 N.W.2d 911 (Ct. App. 1989):

¶18      Havlik’s pursuit and stop of Deignan’s vehicle met the three elements of fresh pursuit. Havlik continued to follow Deignan after Deignan deviated across the center traffic lane on Highway 14 in the Village of Spring Green, and after Havlik observed erratic driving and evasive behavior. While Havlik did not immediately initiate the traffic stop, no unnecessary delay occurred, as Havlik was waiting to confirm with Sauk County dispatch that there were no available deputies at that time. Second, Havlik’s pursuit was continuous and uninterrupted because he followed Deignan from the time Havlik first observed suspicious driving until the time he initiated the traffic stop. Finally, although Havlik did not initiate the traffic stop immediately after observing Deignan cross the center line, the circumstances justify the small lapse in time before the extrajurisdictional arrest was made. As previously noted, Havlik was waiting for Sauk County dispatch to confirm that there were no deputies with jurisdiction to initiate the traffic stop. Once confirmation was made, Havlik promptly initiated the traffic stop. Because Havlik’s actions met the three elements of fresh pursuit, Havlik had authority under Wis. Stat. § 175.40(2) to stop and arrest Deignan.

State v. Joseph L. Hernandez, 2012AP2148-CR, District 2, 2/27/13; court of appeals decision (1-judge, ineligible for publication); case activity

The trial court properly found that Hernandez made a prima facie showing that a prior OWI conviction was invalid despite his poor recollection of details of the prior proceeding, distinguishing State v. Hammill, 2006 WI App 128, ¶11, 293 Wis. 654, 718 N.W.2d 747 (“a defendant who ‘simply does not remember what occurred at his plea hearing’ does not make a prima facie showing”):

¶10      Although this case somewhat resembles Hammill in that it involves a defendant’s less than perfect memory of the earlier proceedings and a sparse record, Hernandez has done what Hammill did not: he has affirmatively asserted that he did not knowingly, intelligently, and voluntarily waive his right to counsel. First, he submitted an affidavit stating that “[he] was neither advised, nor was [he], in fact, aware that a lawyer may have been able to discern matters beyond [his] capacity such as defenses, objections or constitutional arguments.” He also averred that he was not advised of or aware of various other constitutional rights.

¶11      Next, in addition to his affidavit, Hernandez testified at the evidentiary hearing that he had not filled out any paperwork or signed any documents before pleading no contest. He described the plea hearing as follows: “[The judge] asked me what I plead. I said, ‘No contest.’ And then he says, ‘Well, then you got 30 days in Huber.’” Hernandez repeatedly denied having an understanding of the range of possible punishment, and he denied that the trial court addressed his decision not to obtain counsel prior to his no contest plea. Based on Hernandez’s affirmative denials that he either understood his rights or had them explained to him before the no contest plea, we agree with the trial court that he made a prima facie case that his waiver of the right to counsel was not knowing, intelligent and voluntary.

The trial court also appropriately found the state had not proven Hernandez’s waiver was valid:

¶12      …. At the evidentiary hearing, the State called Hernandez adversely as the only witness. As we already explained, he testified that he was not given the information required by Klessig regarding the range of possible punishment or the disadvantages of self-representation. The trial court found that while aspects of Hernandez’s testimony were unreliable, the relevant portion was credible because it was corroborated by a lack of any evidence in the 2000 court record that the information had been given. Those findings of fact and credibility determinations are supported by the record so we will not disturb them.

State v. Andrew J. Wirth, 2012AP208-CR, District 4, 2/21/13; court of appeals decision (not recommended for publication); case activity

Wirth was charged with the shooting deaths of two people outside a bar. He claimed self defense. The trial court allowed evidence that Wirth engaged in a confrontation earlier in the evening at a different bar with someone other than the shooting victims. In a fact-intensive opinion, the court of appeals concludes that if admission of the evidence was error, it was harmless, even in light of defendant’s claim of self defense:

¶30      In sum, the only significant dispute at trial was whether Wirth acted in self-defense. As we have explained, the evidence showing that Wirth operated and handled the weapon in a manner constituting criminal negligence, and not in self-defense, was overwhelming. When we view the other acts evidence of the altercation at the Filling Station Bar in the context of the entire trial, it is clear beyond a reasonable doubt that a rational jury would have found Wirth guilty even if the other acts evidence had been excluded. For that reason, we affirm.

Wirth was charged with two counts of first degree intentional homicide but was convicted of two counts of the lesser included offense of homicide by negligent handling of a dangerous weapon, so the court’s analysis of the evidence relates to the elements of the lesser included crime.