On Point

Juan Smith v. Cain, USSC No. 10-8145, 1/10/12

Statements by the sole eyewitness, who identified Smith at trial as one of the perpetrators, that in fact he couldn’t see the faces of the perpetrators were “material” to determination of Smith’s guilt. Therefore, the state’s failure to disclose these statements before trial violated Smith’s due process right to exculpatory evidence.

Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See 373 U. S., at 87. The State does not dispute that Boatner’s statements in Ronquillo’s notes were favorable to Smith and that those statements were not disclosed to him. The sole question before us is thus whether Boatner’s statements were material to the determination of Smith’s guilt. We have explained that “evidence is `material’ within the meaning ofBrady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469-470 (2009). A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U. S. 419, 434 (1995) (internal quotation marks omitted).

We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U. S. 97,112-113, and n. 21 (1976). That is not the case here. Boatner’s testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict his testimony: Boatner told the jury that he had “[n]o doubt” that Smith was the gunman he stood “face to face” with on the night of the crime, but Ronquillo’s notes show Boatner saying that he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” App. 196, 200, 308. Boatner’s undisclosed statements were plainly material.

Barion Perry v. New Hampshire, USSC No. 10-8974, 1/11/12, affirming State v. Perry (N.H. sup. ct. 11/18/10)

For purposes of due process, a pretrial identification isn’t suppressible unless the product of improper law enforcement activity.

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.¹ Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

Perry was identified by what the Court describes as “mere happenstance” – Perry was standing next to a police officer investigating a reported break-in of a car in a parking lot, when a witness viewed them from inside her apartment and identified Perry as the perpetrator, without police involvement. (“As the trial court found, the witness pointed out the defendant from her apartment window without any inducement from the police, Summary Order, p. 1.) The long and short of it: due process requires suppression of an identification only where the identification is treaceable to police misconduct. Perry was identified at was what, in effect a single-person “showup,” a procedure that, if arranged by the police, will be considered “suggestive” by definition, the inquiry becoming whether it was “necessary.” State v. Dubose, 2005 WI 126,, 285 Wis. 2d 143, 699 NW 2d 582, ¶2 (“We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.”). But Perry’s “showup” wasn’t arranged by the police, so it isn’t suppressible as a matter of due process.

We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair….

Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence. See supra, at 7. We also take account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant’s Sixth Amendment right to confront the eyewitness. See Maryland v. Craig, 497 U. S. 836, 845 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant.”). Another is the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted,⁷ likewise warn the jury to take care in appraising identification evidence. …

State and federal rules of evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury….

City of Beloit v. Steven A. Herbst, Sr., 2010AP2197, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Herbst: Tracey A. Wood; case activity

Evidence held sufficient to support OWI conviction, where Herbst was found in parked car, slumped over the steering wheel with the engine running, along with evidence that the designated driver gave Herbst the keys to the vehicle so he could go to sleep. Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d 447 (merely sitting behind wheel of car with engine running doesn’t establish “operating”), distinguished.

¶15      Herbst ignores our standard of review.  Certainly there was disputed evidence as to whether Herbst had turned on the ignition. However, there was ample circumstantial evidence that he did in fact turn on the ignition.  Howes saw Herbst slumped over the van’s steering wheel with the engine running.  Wood also observed the engine running.  Korn testified she gave Herbst the van keys so that he could sleep in the van and that she did not turn on the van’s ignition.  The only reasonable inference from this evidence is that Herbst manipulated the ignition by turning it on.  While there is no direct evidence that Herbst activated the ignition, the circumstantial evidence amply supports the jury’s verdict.

The prosecutor’s closing argument to the jury, that “operate” may be established merely by having hands on the steering wheel was, reversible error.

¶20      We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel.  If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat.§ 347.63(3)(b), that is a correct statement of the law.  But that is not how the City framed its discussion of the meaning of “operate.”  The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.[2]

…

¶22      Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction.  The court did so here.  However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition.  The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.”  That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel.  The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”

¶23      Consequently, although we conclude there was sufficient evidence to convict Herbst of OWI, it is impossible to discern whether the jury convicted Herbst of OWI because he turned on the ignition, which was in dispute; pressed his foot on the gas pedal, which was also in dispute; or by having his hands on the steering wheel, which was not in dispute.  We therefore conclude that the court’s error was not harmless because it is not possible to determine from the record whether the jury applied the correct law in finding Herbst guilty of OWI.  …

State v. Heather M. Kolman, 2011AP1917-CR, District 4, 1/12/12

court of appeals decision (1-judge, not for publication); for Kolman: John C. Orth; case activity

 Scope of a concededly proper traffic stop (for defective brake light) wasn’t unlawfully expanded by testing Kolman for signs of intoxication (reciting alphabet; “mini” HGN test).

¶15      Most relevant here, and as discussed further below, a lawful seizure “becomes unreasonable when the incremental liberty intrusion resulting from the investigation supersedes the public interest served by the investigation.”  Arias, 311 Wis. 2d 358, ¶38 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)).  Thus, when analyzing the reasonableness of police actions extending a lawful traffic stop, courts are to examine, under the totality of circumstances:  (1) the public interest served by the action taken; (2) the degree to which the continued seizure advances the public interest; and (3) the severity of the resulting interference with the suspect’s liberty interest.  Id., ¶39 (analyzing reasonableness of 78-second dog sniff during traffic stop).[4]

…

¶25      This court therefore concludes, using the supreme court decision in Arias as its primary authority, that the trooper’s apparently diligent and speedy attempt to confirm or dispel the suspicion of impaired driving raised by Kolman’s bloodshot and glassy eyes and lighting of a cigarette, by asking Kolman to recite the alphabet, while still seated in her vehicle, represented an incremental intrusion on her liberty that is outweighed by the public interest served by the request.[6]  The trooper’s request was only minimally more intrusive than asking Kolman if she had been drinking, a question that clearly was permissible, under the totality of the circumstances here, in light of the case law cited in this opinion.

…

¶29      Finally, consistent with the above discussion, this court concludes that, once the trooper heard and observed Kolman as she gave a distinctly poor recitation of the alphabet, the totality of the circumstances was sufficient for the trooper to form a reasonable suspicion of intoxicated driving that justified the trooper conducting the “mini” HGN test.  By the time he conducted the “mini” HGN test, the trooper had observed her bloodshot and glassy eyes, the seemingly freshly lit cigarette, and the feeble alphabet recitation, which together constituted reasonable suspicion.  See State v. Colstad, 2003 WI App 25, ¶¶14, 19-21, 260 Wis. 2d 406, 659 N.W.2d 394.  This resolves against Kolman her challenge to the “mini” HGN test, because whether or not the trooper would have been justified in expanding the detention for this HGN test without reasonable suspicion, he possessed reasonable suspicion by the time he decided to conduct the test.  Thus, assuming without deciding that the “mini” HGN test constituted a field sobriety test requiring reasonable suspicion, it was objectively justified based on the totality of the information available to the trooper.

The question narrowly resolved by the court is whether, as Kolman argues, “the officer must … restrict his investigation to the grounds justifying the stop.” The answer is, No, as is apparent from the block quote above. ¶¶26-27. The battle will have to be fought on whether the stop was unnecessarily or unreasonably prolonged. (The court suggests that “persisting in an inquiry or assessment for more than a minute or two, or using tactics involving trickery, intimidation, or badgering” might be considered impermissible, ¶28.) Here, though, the “diligence, speed, and efficiency” of the inquiry dooms the challenge, id. See also ¶25 n. 6 (“Kolman argues that any actions by the trooper” beyond the basis for the stop required reasonable suspicion for OWI: “It is that argument that this court rejects.”). The court notes that reasonable suspicion is required to administer FSTs; Kolman doesn’t argue that reasonable suspicion is required for the ad hoc tests here, and the court doesn’t purport to reach that question, id.

State v. Leon A. Wedde, 2011AP130-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); pro se; case activity

The trial court dismissed with prejudice the pending charge when the prosecutor was unable to proceed on the scheduled date. The State argues that dismissal should have been without prejudice, and the court of appeals agrees that the trial court erroneously exercised discretion on this point, because it “did not discuss the public interest,” as required by State v. Kenyon, 85 Wis. 2d 36, 46-47, 270 N.W.2d 160 (1978).

¶10      Based on Kenyon and Braunsdorf, we reverse and remand to the trial court with the following directions.  We understand that the trial court judge who presided in this case beforehand has retired.  So, on remand, there are some options available.  A new date for trial may be set by the successor trial court if the State withdraws its motion to dismiss.  Or, the State may wish to proceed with its motion to dismiss without prejudice.  If the latter course of action is taken, the successor court may either grant or deny the State’s motion to dismiss without prejudice after considering the public’s interest to have the crimes actually committed fairly prosecuted and to the protection of the rights of third persons. See Kenyon, 85 Wis. 2d at 47.  In the event the trial court decides to deny the motion to dismiss without prejudice, the case must then be set for trial on a date certain.  Braunsdorf mandates that the court may not dismiss with prejudice even if the State says it will not be ready to proceed to trial on the scheduled date.  Rather, the case must proceed to trial and jeopardy must attach.  See Braunsdorf, 98 Wis. 2d at 576-77.

State v. Frederick W. Scheuers, 2011AP1709-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); for Scheuers: Jeffrey Mann; case activity

Sentence of 7 months for criminal damage to property, upheld as proper exercise of discretion.

¶9        Scheuers acknowledges that the trial court “took into account and properly stated on the record what [it] believed was an appropriate response in addressing the needs for protecting the public, the seriousness of the offense, and acknowledged several mitigating factors.”  However, citing to Gallion, Scheuers contends that the court failed to address his rehabilitative needs or the possibility of probation. He argues that the postconviction court made the same error.  We disagree.  While the Gallion court requires the trial court to set forth its sentencing objectives on the record, it recognizes that the objectives in each case vary; rehabilitation of the defendant is just one possible objective.  Gallion, 270 Wis. 2d 535, ¶¶40-41.  Furthermore, while the trial court did not expressly address rehabilitation and probation, its consideration of these objectives is implicit in its statement that it was ordering jail time due to Scheuers’ criminal record, the seriousness of the offense and the danger posed to the community.

¶10      Next, Scheuers complains that the trial court “spent a significant amount of time, during a relatively short sentencing [hearing], focusing on the unrelated felony offense of tampering with food,” Wis. Stat. § 941.325, which requires a showing that, in tampering with the food, the offender intended to cause bodily harm to another.  While the trial court did reference food tampering, it did so to underscore the seriousness of Scheuers’ conduct and its potential impact on his community.  We reject Scheuers’ contention that the trial court improperly sentenced him on the elements of that more serious offense, rather than the misdemeanor offense of criminal damage to property.  The record reflects that the sentencing court, considering the sentencing range for the charged misdemeanor offense, exercised its discretion and arrived at a sentence within the range set by statute.  See Mallon v. State, 49 Wis. 2d 185, 192, 181 N.W.2d 364 (1970).  A sentence within the statutory maximum is cruel and unusual and, thus, an erroneous exercise of discretion only where it is so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.  Id.  While this court may not have arrived at the same sentence, we do not view seven months in jail with work release to be so excessive and disproportionate to the offense so as to shock public sentiment.

Racine County HSD v. Roseannah M. H., 2011AP1776, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); for Roseannah: Patrick Flanagan; case activity

On this TPR appeal by the County, the court of appeals upholds an order granting Roseannah’s motion to withdraw her admission to grounds. Such an admission must be knowing, intelligent and voluntary, per colloquy governed by § 48.422(7) and due process, ¶5, citing Brown Cnty. DHS v. Brenda B., 2011 WI 6, ¶¶34-36, 331 Wis. 2d 310, 795 N.W.2d 730. On a challenge to the admission, the parent has an initial burden to show that the colloquy was deficient; if the parent meets that burden, then the petitioner must show that the admission was nonetheless knowing, intelligent and voluntary. Id. Here, the trial court ruled the colloquy deficient because it didn’t warn Roseannah that the outcomes flowing from her admission would be either dismissal or termination; and found that, although her admission was a strategic decision made with her attorney, she “perhaps discounted the possibility that the court would terminate her parental rights,” ¶7. The court of appeals affirms:

¶9        The first issue we address is whether Roseannah established a prima facie case that she did not enter her admission knowingly, voluntarily, and intelligently.  We agree with the circuit court that Roseannah met this test.

¶10      Wisconsin Stat. § 48.422(7)(a) provides that before a circuit court accepts a parent’s admission to the allegations in a TPR petition the court must “[a]ddress the parties present and determine that the admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential dispositions.”  When Roseannah entered her admission, the circuit court failed to inform her that as a result of her admission the two possible dispositions at stage two of the TPR proceedings were dismissal of the petition or termination of her parental rights.  HSD counters that the colloquy was sufficient because after Roseannah admitted that Talia was in continuing need of protection or services in violation of Wis. Stat. § 48.415(2), the court read aloud the statute and added “unless the conditions are met … you would be in jeopardy of losing your parental rights.”  This was not sufficient, as “a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination.”  Oneida Cnty. DSS v. Therese S., 2008 WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122.  As the circuit court admittedly did not do this, Roseannah established a prima facie case that she did not enter her admission knowingly, voluntarily, and intelligently.[4]

¶11      We now turn to the second part of the test:  whether HSD demonstrated by clear and convincing evidence that Roseannah knowingly, voluntarily, and intelligently admitted to the allegations that Talia was in continuing need of protection or services.  The circuit court noted that Roseannah’s attorney testified that he discussed with Roseannah the possibility of her losing her parental rights.  The court also indicated that it found her attorney credible.  Nonetheless, the court granted Roseannah’s motion to withdraw her admission, finding that Roseannah “perhaps discounted the possibility that the court would terminate her parental rights.”  As the circuit court is in the best position to judge witness credibility, we are reticent to reverse the court’s decision that Roseannah did not enter her admission knowingly, voluntarily, and intelligently.  See Jenkins, 303 Wis. 2d 157, ¶33.  We hold that HSD did not meet its burden of demonstrating by clear and convincing evidence that Roseannah knowingly, voluntarily, and intelligently admitted to the allegations in the TPR petition.

The trial court, it bears repeating, ruled that Roseannah had met her (purely procedural) burden of showing a prima facie case of a defective admission. In an arguably analogous situation – whether a defendant challenging jury selection has made a prima facie case for discrimination so as to shift the burden to the prosecution, the United States Supreme Court has observed, Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion):

The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 715 (1983). The same principle applies under Batson. Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.

That very approach has been adopted by the court of appeals, State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997) (“When the prosecutor offers a race-neutral explanation for peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing becomes moot,” citing Hernandez). Why wouldn’t it apply here?