On Point

State v. James Lee Johnson, 2012 WI App 21 (recommended for publication); for Johnson: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity

The guilty plea colloquy was defective, in that it failed to advise Johnson that the trial court wasn’t obliged to follow the terms of the plea bargain (here: to dismiss and read-in a count), contrary to State v. Hampton, 2004 WI 107, ¶32, 274 Wis. 2d 379, 683 N.W.2d 14. Nonetheless, Johnson isn’t entitled to relief:

¶12      The only defect at issue in this appeal is whether a Bangert/Hampton violation occurred when the circuit court did not inform Johnson that it was not bound by the plea agreement.  The State concedes that the circuit court erred; however, given that the circuit court accepted the plea agreement, Johnson has not demonstrated that withdrawal of his plea “is necessary to correct a manifest injustice.”  See Cross, 326 Wis. 2d 492, ¶42.  “A manifest injustice occurs when there has been ‘a serious flaw in the fundamental integrity of the plea.’”  Id.(citation omitted).  Johnson was not affected by the defect in his plea colloquy; in fact, he received the benefit of the plea agreement.  The criminal complaint charged Johnson with two counts of second-degree sexual assault of a child.  Each charge carried a maximum prison sentence of forty years.  See Wis. Stat. §§ 948.02(2), 939.50(3)(c).  In accepting the State’s recommendation and dismissing the second count, the circuit court reduced Johnson’s potential prison time by forty years.  Johnson, therefore, was not subject to a manifest injustice as the circuit court’s failure to inform him that it was not bound by the plea agreement was an “insubstantial defect[].”  See Cross, 326 Wis. 2d 492, ¶32.

¶13      In applying the rationale from Cross, therefore, we follow the supreme court’s reasoning that “requiring an evidentiary hearing for every small deviation from the circuit court’s duties during a plea colloquy is simply not necessary for the protection of a defendant’s constitutional rights.”  Id., ¶32.  “The Bangert requirements exist as a framework to ensure that a defendant knowingly, voluntarily, and intelligently enters his plea.  We do not embrace a formalistic application of the Bangert requirements that would result in the abjuring of a defendant’s representations in open court for insubstantial defects.”  Cross, 326 Wis. 2d 492, ¶32.  Because the circuit court accepted the plea bargain, Johnson cannot demonstrate a violation of his constitutional rights.

The court separately, but relatedly, determines that the error is harmless:

¶14      We also conclude that Cross implicitly allows for us to hold the error at issue harmless.  See id., 326 Wis. 2d 492, ¶36 (In discussing an insubstantial error during a plea colloquy, the supreme court stated “[b]y clear implication, the failure of the defendant to know and understand the precise maximum is subject to a harmless error test.  It is not a per se violation of the defendant’s due process rights.”).  The test for harmless error is “whether there is a reasonable possibility that the error contributed” to the outcome.  State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).  “The standard for evaluating harmless error is the same whether the error is constitutional, statutory, or otherwise.  An error is harmless if it does not affect the defendant’s substantial rights.”  State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500 (citation omitted); see also Wis. Stat. § 805.18(2).[4]  Clearly the error did not contribute to the outcome of Johnson’s plea hearing, nor were his substantial rights affected.  Johnson’s situation is not one in which the circuit court failed to inform him that it was not bound by the plea agreement and then imposed a larger sentence than what was recommended as part of the plea agreement.  Johnson received exactly what he bargained for when the second count was dismissed.  Further, Johnson does not claim that he would not have pled guilty, or admitted in open court to sexually assaulting his daughter, had the court expressly informed him that it did not have to dismiss the second count.  Johnson, therefore, has not demonstrated that this plea was not entered into knowingly, voluntarily or intelligently.

¶15      Like the supreme court in Cross, we also conclude that Johnson’s admission at the plea hearing that he had sexual contact with S.J. on at least two occasions “should not be thrown aside.”  See id., 326 Wis. 2d 492, ¶43.  Johnson entered a favorable plea agreement in which the second count of second-degree sexual assault of a child was dismissed, thereby reducing his potential prison exposure by forty years. The circuit court’s error was harmless.

The court of appeals distinguished conflicting, unpublished precedent regarding this issue at ¶10 n. 3 of its decision.

State v. Kwesi B. Amonoo, 2011AP566, District 1, 1/24/12

court of appeals decision (not recommended for publication); for Amonoo: Robert N. Meyeroff; case activity

Amonoo fails to show that trial counsel provided ineffective assistance with respect to pretrial identification procedure (context: “sufficient reason” to overcome serial litigation bar following direct appeal):

¶15      Amonoo contends that of all the persons pictured in the photo array, he was the only one wearing a jacket.  This is prejudicial, Amonoo argues, because the police report detailing the shooting indicates that Nimox stated the shooter was wearing a jacket.  We disagree. The record, which does not contain the array, does not contain facts which tend to suggest the array was unduly suggestive.  In fact, three of the seven witnesses to the shooting did not even identify Amonoo from the photo array.  Eyewitnesses Williams,[7] Andres Torres and Dennis Maldonado did not identify Amonoo in the photo array.  Further, there was no consistency among those eyewitnesses who identified Amonoo from the photo array and those who identified Amonoo in a line-up.   While neither Torres nor Maldonado identified Amonoo from the photo array, both identified Amonoo in a line-up.  And, while eyewitness Richard Alvarado selected Amonoo from the photo array, he did not select Amonoo from a line-up.  These facts strongly suggest that the array was not unduly suggestive, even if Amonoo was the only one wearing a jacket.  Because Amonoo has not demonstrated that he was prejudiced by the photo array, we conclude that a motion to suppress the identification based on photo array would not have succeeded.  See Berggren, 320 Wis. 2d 209, ¶21.

¶20      A defendant who alleges that his or her attorney was ineffective because the attorney did not do something must show with specificity what the attorney should have done, how the results of the trial would have been altered, or at the very least, how the failure made the result either unreliable or fundamentally unfair.  State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343 (Ct. App. 1994).  Here, Amonoo provides nothing but his own conclusory statements in support of what Williams’s and Murphy’s testimonies would have been at trial. Consequently, Amonoo cannot meet the prejudice prong of the Strickland test as to trial counsel’s effectiveness.  See id., 466 U.S. at 694. Because trial counsel was not ineffective for failing to call Williams and Murphy to testify at trial, postconviction counsel was not ineffective for failing to raise this issue.

¶22      A defendant does not have the right to insist that his postconviction attorney raise particular issues.  See Evans, 273 Wis. 2d 192, ¶30.  Counsel has the duty to determine which issues have merit for appeal.  Id.  “‘[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [postconviction] counsel be overcome.’”  Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted).  Amonoo has not demonstrated that his additional issues are “‘clearly stronger’” than those pursued.  See id. (citation omitted).

¶23      As stated, the record contains no facts telling us why any of the witnesses at issue were not called, nor does the record provide factual support for what any of them would have said.  Without such information, an appellate court cannot conclude that there is a reasonable probability that the result of the proceeding would have been different.  See Thiel, 264 Wis. 2d 571, ¶20.  Nor does the record suggest that Amonoo was prejudiced by the photo array or any other identification.  We conclude that Amonoo has not shown that any of the issues he claims postconviction counsel should have raised were obvious and clearly stronger than the issue postconviction counsel actually raised. Moreover, Amonoo provides no affidavits or statements from his postconviction counsel explaining his decision to pursue the jury instruction issue over others.  We are not prepared to conclude that postconviction counsel’s decision was a result of ineffective assistance, rather than strategy.  The law presumes that postconviction counsel’s decision to raise the particular challenge to trial counsel’s performance on direct review was reasonable.  See State v. Harris, 133 Wis. 2d 74, 81, 393 N.W.2d 127 (Ct. App. 1986).

State v. Dylan S. / Renee B., 2012 WI App 25 (recommended for publication); for Dylan S.: Devon M. Lee, SPD, Madison Appellate; case activity;  for Renee B.: Susan E. Alesia, SPD, Madison Appellate; case activity

Delinquency – Sanctions – Municipal Truancy 

After finding the juveniles in violation of  first-offense truancy under the local municipal code, the trial court set compliance conditions. The court did not, however, enter a written dispositional order. The court subsequently found that the juveniles failed to comply with the conditions and imposed sanction orders (home detention with electronic monitoring). The court of appeals now holds that, because a written dispositional order must be entered before a sanction may be imposed, these sanction orders were invalid.

¶20      Dylan and Renee argue the circuit court violated these statutory provisions in several ways.  First, they contend that the court lacked statutory authority to sanction them because the court never entered written dispositional orders that could serve as a basis for sanctions.  We agree.  Under Wis. Stat. § 938.355(6m)(ag), a court may sanction a juvenile who has been adjudicated truant if it finds by a preponderance of the evidence that the juvenile violated a condition of the dispositional order.  Wisconsin Stat. § 938.355(2)(b) states that the dispositional order “shall be in writing[.]”  (Emphasis added.)

The court rejects an argument that the trial court’s “minutes” sheet – which reflected the oral disposition – suffices:

¶23      We disagree.  A minutes sheet is not a court order.  A court order must be signed by a judge.  See Wis. Stat. § 807.11(1).  The circuit court did not sign the minutes sheets in Dylan’s and Renee’s cases.

Indeed, it follows that the underlying disposition (that is, adjudication of truancy) is not itself appealable, as the court subsequently indicates, ¶32 (“Because the truancy adjudications were never reduced to written orders, we lack jurisdiction to review them.  A judgment or order must be reduced to writing and filed with the clerk of the circuit court before it may be appealed.”). Just to clarify: the sanction orders were themselves entered, ¶¶5, 14; they are the subject of the appeal, so jurisdiction isn’t problematic.

Delinquency – Sanctions – Electronic Monitoring 

Electronic monitoring is not authorized as a sanction:

 ¶26      First, Dylan and Renee argue that the court lacked statutory authority to order electronic monitoring as a sanction.  They correctly note that the statutes contain a list of permitted sanctions, and electronic monitoring is not one of them.  See Wis. Stat.§§ 938.342(1g)(b)-(k), 938.342(1m), 938.355(6m)(a)1m., 938.355(6m)(ag).  Where a statute lists items included in its purview, omission of an item is evidence that the legislature intended to exclude it.  See Gottlieb v. City of Milwaukee, 90 Wis. 2d 86, 95, 279 N.W.2d 479 (Ct. App. 1979).  Moreover, the juvenile code “is a chapter of carefully spelled out definitions and enumerated powers.”  See State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974).  Its language is “carefully drawn to circumscribe judicial and administrative action.” See id.  “[I]n short, if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.”  See id.

Judicial Bias / (Juvenile) Disqualification 

A court may initiate a sanctions motion, but if it does so, then it is disqualified from holding a hearing on the motion, § 938.355(6m)(b). The juvenile court here specifically found, before a sanctions motion had been filed, that Renee was in non-compliance and therefore might be sanctioned – this at least “arguably” worked an “initiation of a sanctions motion, in which case the court would have been required to disqualify itself from presiding over the subsequent sanctions hearing,” ¶29. In any event, the trial court evinced bias:

¶30      Furthermore, even if the court did not initiate the sanctions motion against Renee, before any sanctions motions were filed, the court found that both Dylan and Renee violated its orders, which demonstrates objective bias.  Objective bias can exist where there is an appearance of partiality—that is, where a reasonable person could question the court’s impartiality based on the court’s statements—and the appearance of partiality reveals a great risk of actual bias.  See State v. Goodson, 2009 WI App 107, ¶¶9, 14, 320 Wis. 2d 166, 771 N.W.2d 385.  Here, a reasonable person would interpret the court’s statements to mean that the court decided Dylan and Renee had violated its dispositional orders before the sanctions hearing.  This appearance of partiality reveals a great risk that the court actually did prejudge the sanctions motions.

U.S. v. Antoine Jones, USSC No. 10-1259, 1/23/12, affirming United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), reh’g denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010); effectively overruling State v. Sveum, 2009 WI App 81, ¶8

The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977) . We hold that the Government’s installation of a GPS device on a target’s vehicle, ² and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

Police attached a GPS tracking device on Jones’s vehicle in a public parking lot. Though the police had obtained a warrant for this action, “the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required,” fn. 1. As the blockquote above indicates, the Court rejects that argument, thus effectively overruling this recent holding in State v. Sveum, 2009 WI App 81: “The State responds that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view.  We agree with the State. … We agree with the State that neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public.” 2009 WI App 81, ¶¶1, 8. Aside: the court of appeals result (non-suppression) was affirmed by the Wisconsin supreme court, 2010 WI 92, but on different grounds, id. ¶3 (“We elect not to resolve the first issue, and assume, without deciding, that a search or seizure occurred in this case that required authorization by a warrant.”). This means that it is the court of appeals’ iteration in Sveum that is binding. Or, rather, was.

The Supremacy Clause, Art. VI Cl. 2, says you don’t have to wait for an appellate court to ceremonially dispatch the court of appeals holding in Sveum. State v. Jennings, 2002 WI 44, ¶¶3, 18, 252 Wis.2d 228,647 N.W.2d 142 (“the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court”; “all state courts, of course, are bound by the decisions of the United States Supreme Court on matters of federal law”). You don’t have to wait to argue Jones-type suppression, and you shouldn’t.

On to some of the larger details …

• “The text of the Fourth Amendment reflects its close connection to property …. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” That is, even though police activity occurred in a public place, it amounted to a trespass – an invasion of Jones’s property rights:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. …

The Court, in brief, stresses “the significance of property rights in search-and-seizure cases”; restoring that significance is precisely what makes this decision so important (and divides the 5-Justice majority from the 4-Justice concurrence, not to say the Sveum court of appeals panel). In other words, the “reasonable expectation of privacy” test expanded rather than narrowed the proper test:

• … Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U. S., at 286 (opinion concurring in judgment). … Katz did not narrow the Fourth Amendment’s scope.

… [T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. …

It follows, then, that “(s)ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” However: “We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”

Bold prediction: this will prove the most-discussed, if not important, criminal case this Term. First reactions: Orin Kerr (“The New Doctrine of What is A Fourth Amendment Search“); more Kerr (“Three Questions Raised By The Trespass Test in United States v. Jones“); Tom Goldstein (“Reactions to Jones v. United States: The government fared much better than everyone realizes“); Mike Sacks (“Warrantless GPS Tracking Unconstitutional, Supreme Court Rules“). Goldstein argues that Justice Sotomayer’s concurrence is more aligned with the idea that the long-term monitoring violated Jones’s expectation of privacy than that a trespassory search violated his property interests. Justice Sotomayer’s concurrence is certainly crucial, if for no other reason than that it supplies the 5th vote, and should be closely inspected. The opening lines of the concurrence:

I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Ante, at 6, n. 3. In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States, 365 U. S. 505, 511– 512 (1961).

Her concurrence continues: “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Does that skepticism represent support for a statist position, as Goldstein might have it (that is, a warrant isn’t required for installation or short-term monitoring)? Time will tell. Of course, it’s not as if the problem of revealing information to third parties didn’t percolate in a Paleozoic, pre-digital age: State v. Smith, 149 Wis. 2d 89, 92, 438 N.W.2d 571 (1989) (no reasonable expectation of privacy in conversations over a cordless phone, affirming trial judge’s ruling that “while Smith said he expected privacy, Smith had not read the manual [and] a reading of the manual would have led a reasonable person to conclude there was no assurance of privacy while using a radio broadcast transmitter such as a cordless telephone”). As someone has remarked, “This approach is ill suited to the digital age.” Whether it will be adopted for the digital age of course remains to be seen.

More: Margot Kaminski, “Three thoughts on U.S. v. Jones” nicely expresses the arguably narrow nature of the holding (“police don’t need to physically attach a tracker to your car to use GPS tracking. They can just turn on GPS trackers already in your car (OnStar) or on your person (cell phones)”). But Kaminski doesn’t quite share Goldstein’s certitude of government victory, even if she is alert to the possibility: “the most dangerous part of these opinions is not the majority’s decision about trespass, but Alito’s conclusion that Katz is tethered to evolving social norms, and his tendency to consequently defer to the legislature on these issues. … This angle on Katzis disturbing, because it conflates knowledge that one is being unreasonably surveilled with acceptance of that surveillance.” (Exhibit A: State v. Smith.) That is where the battle will be fought, but it has yet to be waged – which seems to be a principal point of Justice Sotomayor’s concurrence. Kaminski: “Sotomayor uses her concurrence to clearly signal to cops and judges. … This matters– and matters a lot– because in the interim cases, before another GPS case comes to the Supreme Court, judges are going to pay attention to Jones for any hints of a future outcome. And Sotomayor deliberately showed her hand.”

Cory R. Maples v. Thomas, USSC No. 10-63, 1/18/12, reversing 586 F.3d 879 (11th Cir. 2009)

On “the uncommon facts presented here,” the Court finds that cause existed to excuse on federal habeas review Maples’ procedural default, namely his failure to file a timely appeal of his state (Alabama) postconviction petition.

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is “cause” to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

Following Maples’ capital conviction, two attorneys from “Biglaw powerhouse[]” Sullivan and Cromwell assumed representation and filed a postconviction petition in the Alabama trial court alleging ineffective assistance of trial counsel. (A local Alabama attorney nominally represented Maples, but he was a mere figurehead and otherwise irrelevant to the discussion.) While the petition was pending, the attorneys went their separate ways, neglecting to so inform either Maples or the Alabama court. The judge denied the petition in due course, the clerk sent the denial to Sullivan and Cromwell, which dutifully returned the mail as undeliverable, and the deadline for filing a state appeal lapsed. The Alabama courts refused to reinstate the appeal. On to federal court, where navigating the shoals of habeas procedure is daunting under the best of circumstances. Procedural default of a claim in state court (here, failure to appeal timely) bars federal habeas review absent “cause” for and “prejudice” from the default. Key problem facing Maples: “Negligence on the part of a prisoner’s postconviction attorney  does not qualify as ’cause,'” citing Coleman v. Thompson, 501 U. S. 722 (1991). But the Court charts a course around, rather than through, this obstacle:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principalagent relationship, an attorney no longer acts, or fails to act, as the client’s representative. See 1 Restatement (Third) of Law Governing Lawyers §31, Comment f (1998) (“Withdrawal, whether proper or improper, terminates the lawyer’s authority to act for the client.”). His acts or omissions therefore “cannot fairly be attributed to [the client].” Coleman, 501 U. S., at 753. See, e.g., Jamison v. Lockhart, 975 F. 2d 1377, 1380 (CA8 1992) (attorney conduct may provide cause to excuse a state procedural default where, as a result of a conflict of interest, the attorney “ceased to be [petitioner’s] agent”); Porter v. State, 339 Ark. 15, 16–19, 2 S. W. 3d 73, 74–76 (1999) (finding “good cause” for petitioner’s failure to file a timely habeas petition where the petitioner’s attorney terminated his representation without notifying petitioner and without taking “any formal steps to withdraw as the attorney of record”).

…

We agree that, under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the “extraordinary circumstances beyond his control,” ibid., necessary to lift the state procedural bar to his federal petition.

The Court has no real difficulty finding abandonment and, therefore, “ample cause, we hold, to excuse the default into which he was trapped when counsel of record abandoned him without a word of warning.” Even so, Maples isn’t ready to set foot on solid ground, not by a long shot. The matter is remanded for determination of “prejudice,” the other procedural default inquiry. Presumably, this means that the court on remand will determine whether trial counsel was indeed ineffective, as alleged in the defaulted claim – which may toss Maples onto different, equally treacherous shoals (“double deference”: AEDPA deference to the state court result; deference to challenged counsel’s decision-making). For present purposes it’s enough to say that the facts (death penalty; attorney abandonment; indisputably blameless litigant) make this result unique, as the Court itself suggests throughout its discussion. Mike Sacks, as usual, efficiently distills the essence of the matter: “The Court rarely takes cases that offer no opportunity to issue a broadly applicable rule of law, even if those cases present clear cases of injustice against specific individuals. But Maples’ case presented such an extraordinary set of facts — described in a short concurrence by Justice Samuel Alito as ‘a veritable perfect storm of misfortune, a most unlikely combination of events’ — that the Court intervened on Maples’ behalf.” The result is unusually fact-specific. Sui generis, as some like to say, which is Latin for, Good luck using this case for your client.

That said, the interested observer may want to keep a watchful eye trained on the currently pending Martinez v. Ryan, which is a variation on the cause-and-prejudice inquiry, in the context of claims defaulted in the course of postconviction litigation.

… Perry v. New Hampshire:

The Federal Evidence Blog gauges the impact of last-week’s decision relegating “happenstance” but suggestive ID procedure to jury (rather than due process) determination. Pointing out that Perry highlights 5 “protections” against unreliable IDs, the post keys on appropriate jury instructions (and promises to “review some of these [other] key protections in upcoming posts”; might therefore be worth your while to check that site for updates).

The Wisconsin practitioner will need no instruction to learn that our pattern Wis JI – 141 (“Where Identification of Defendant Is in Issue”) just doesn’t say a whole lot. As the 2005 Comment to 141 indicates, the Committee rejected the “most-cited eyewitness identification instruction,” United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972), apparently concluding that its “long list of factors … was not an effective approach.” Note, however, the following passage from Perry:

… Eyewitness-specific jury instructions, which many federal and state courts have adopted,⁷ likewise warn the jury to take care in appraising identification evidence. See, e.g., United States v. Telfaire, 469 F. 2d 552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.”). See also Ventris, 556 U. S., at 594, n. (citing jury instructions that informed jurors about the unreliability of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); Dowling, 493 U. S., at 352–353. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.

Several of the cases cited with seeming approval at footnote 7 explicitly adopt Telfaire; others appear to provide more detailed instruction than our 141. (The Evidence blog usefully collects those cases in a table at the end of the post.) Obviously, this doesn’t mean that a Telfaire-type is now required. At the same time, there’s no reason a 141 instruction can’t be modified, especially in light of what appears to be the favorable passage quoted above – unless, that is, the judge’s discretion isn’t triggered by such a request.

Town of Mukwonago v. John J. Uttke, 2011AP2021, District 2, 1/18/12

court of appeals decision (1-judge, not for publication); for Uttke: Michael C. Witt; case activity

Uttke’s driver’s license was revoked for refusal to submit to a blood test upon OWI arrest, and he requested a “refusal hearing,” unsuccessfully challenging the existence of probable cause to arrest, § 343.305(9). The court of appeals affirms:

¶9        We first address whether Officer Heckman had probable cause to arrest Uttke.  In State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996), the arresting officer came upon the scene of a one-vehicle accident.  The officer observed a damaged van next to a telephone pole with its engine still running.  Id.  The injured driver was lying next to the van and smelled like alcohol.  Id.  Later at the hospital, the officer observed that the driver’s speech was slurred.  Id.  We held that this evidence constituted probable cause that the driver was operating while intoxicated.  Id. 

¶10      As the facts of Kasian are similar to this case, we hold that Heckman had probable cause to arrest Uttke for operating while intoxicated.  Heckman came upon a one-vehicle accident and noted that there were skid marks and blood marks where Uttke crashed his motorcycle.  As Heckman arrived at the scene of the accident, he was informed by another officer that Uttke smelled like alcohol.  When Heckman first made contact with Uttke at the hospital, he confirmed for himself that Uttke smelled like alcohol.  A reasonable police officer in this position would conclude that Uttke was operating while intoxicated.

Uttke also and unsuccessfully argues that his refusal was excused by a physical ailment rather than intoxication, § 343.305(9)(a)5.c. He bears the burden of persuasion on this issue, and falls short, ¶11: “The only evidence Uttke submits of his physical inability to refuse to take the test was that he had a head injury and that he thought the year was 2001.  Uttke did not, however, offer any medical evidence as to the extent of his head injury.  Furthermore, his confusion about the current year could have easily stemmed from inebriation.”