On Point

State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206

Evidence – Prior Inconsistent Statements 

Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements, § 908.01(4)(a)1. Prineas defended on a theory of consent. KAC testified that she repeatedly said “no” during the interactions. Prineas also testified, but the trial court ruled that he couldn’t relate KAC’s statements during the acts, including statements that indicated her consent to the acts.

¶18      Wisconsin Stat. § 908.01(4)(a)1. provides that prior statements by a witness are not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is … inconsistent with the declarant’s testimony.”  Prior inconsistent statements under this provision are not hearsay and are admissible as substantive evidence and not merely to impeach.  RALPH ADAM FINE, FINE’S WISCONSIN EVIDENCE ch. 908 at 319 (2d ed. 2008); State v. Horenberger, 119 Wis. 2d 237, 247, 349 N.W.2d 692 (1984).  Although the State does not address § 908.01(4)(a), it acknowledges that the statements were inconsistent and admissible as substantive evidence—that KAC consented to the alleged sexual activity.  It is also undisputed that KAC testified at trial, was subject to cross-examination concerning the statements, and was available and subject to subpoena after Prineas testified.  See State v. Miller, 231 Wis. 2d 447, 470-71, 605 N.W.2d 567 (Ct. App. 1999) (“subject to” cross-examination concerning the statement means that the opponent must have an opportunity to examine the declarant regarding the statement, not that the declarant must, in fact, have been cross-examined about the statement).  Prineas’ testimony regarding KAC’s prior inconsistent statements was admissible.

The court reaches the merits, notwithstanding the prior appeal and potential serial-litigation bar, because Prineas asserts ineffective assistance of counsel on the prior go-round, leading the State to acknowledge that the IAC claim “provides a sufficient reason to permist review of the merits,” ¶12 n. 5.

Evidence – “State of Mind” Hearsay 

KAC’s statements were also admissible under the “state of mind” exception to the hearsay rule, § 908.03(3).

¶19      Morever, the statements would also have been properly admitted as a hearsay exception under Wis. Stat. § 908.03.  The “state of mind” exception to the hearsay rule provides:

     (3)  Then existing mental, emotional, or physical condition.  A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Sec. 908.03(3).  As the State points out, the 1974 Judicial Council Committee’s Note to this provision indicates that when a cause of action or a defense depends upon a person’s state of mind, “the declarations of the person whose state of mind is at issue are often a primary source of evidence on this matter.”  Wisconsin Rules of Evidence, 59 Wis. 2d R261 (1974).  Thus, because KAC’s lack of consent was an element of the sexual assault charges, her alleged remarks would be a primary source of evidence.[7]  As the State correctly observes, whether KAC actually made the alleged remarks and, if so, whether they indicated consent to sexual activity with Prineas or rather reflected acquiescence to force by Prineas would be jury questions.  See id. at R260 (trustworthiness concerns are “directed to the weight and sufficiency of the evidence and the credibility of the declarant, not to the admissibility of the statement”).

Harmless Error – IAC-Prejudice 

Whether viewed as a function of ineffective-assistance prejudice, or of harmless-error analysis, wrongful exclusion of these statements requires new trial.

¶26      The issue at trial was consent, and the question of consent under Wis. Stat. § 940.225(4) requires “an affirmative indication of willingness.”  Long, 317 Wis. 2d 92, ¶31.  KAC’s alleged requests as to locking the door, wearing protection, and changing positions during the encounter could all contribute to a finding that there was an affirmative indication of willingness.  We reject the State’s suggestion that Prineas’ descriptions of the victim’s movements and his actions are cumulative to testimony regarding KAC’s alleged remarks during the assault. …

¶27      This brings us to credibility.  “Evidence is cumulative when it ‘supports a fact established by existing evidence.’”  Thiel, 264 Wis. 2d 571, ¶78 (citation omitted).  KAC’s remarks to Prineas, if deemed credible, would bear directly on the issue of consent.  Here, the issue of KAC’s willingness was never “established” to such a degree that additional evidence could not have further undermined her credibility and created further reasonable doubt as to her version of events.  See id., ¶79.  The jury’s verdicts indicate as much.  The jury’s finding as to consent turned on the credibility of Prineas and KAC.  Our supreme court’s decision in Thiel provides guidance on the importance of evidence bearing on credibility in a case such as this. …

…

¶32      When viewing the impact of the excluded statements as a whole, it is not clear beyond a reasonable doubt that a rational jury would have found Prineas guilty absent the evidentiary error.  See Harvey, 254 Wis. 2d 442, ¶49.  As to prejudice, we are satisfied that absent any error, there is a reasonable probability—one sufficient to undermine confidence in the outcome—that the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694.  While our confidence in the outcome may be less easily undermined where the erroneously excluded evidence was peripheral or the outcome was strongly supported by evidence untainted by error, Martindale v. Ripp, 2001 WI 113, ¶¶30-32, 246 Wis. 2d 67, 629 N.W.2d 698, such was not the case here.  In this case of he said/she said, the only issue was whether the sexual encounter was consensual.  As the State acknowledges, the not guilty verdicts in Counts 1 through 4 suggest that the jury did not fully accept KAC’s testimony that it was not.  We conclude that the error was not harmless and it undermines our confidence in the outcome.

on certification by-pass of court of appeals; for Ziegler: Christopher William Rose; case activity; prior post

Interfering with Custody, § 948.31(2) 

Issue (from Certification): 

In State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, we analyzed Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children.  There, we stated that withholding custody of a child “addresses a situation where the person who takes the child has some initial permission to do so.”  We certify to ask the supreme court to determine whetherBowden’s interpretation is contrary to the plain language of the statute.

The court of appeals appears unhappy with its own construction of  “withholding custody” under § 948.31(2) – specifically, Bowden‘s statement quoted above. However, the court of appeals is powerless to amend the language, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997)  (“[O]nly the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.”), and therefore asked the supreme court to do what it cannot. But the due process right to notice imposes an obstacle of its own; see prior post for discussion.

County of Calumet v. Daniel A. Ryan, 2011AP490, District 2, 12/14/11

court of appeals decision (1-judge, not for publication); for Ryan: John M. Carroll; case activity

Officers, investigating a one-car accident, approached Ryan’s home, knocked on his door and “(a)fter several minutes of ‘back and forth,’ Ryan came out of his residence” (admittedly “voluntarily”). Subsequent testing revealed him to be intoxicated and he was convicted of OWI. His appeal challenges the initial encounter as an unlawful encounter. The trial court held that Ryan left his house incident to “a voluntary ‘knock and talk’ interview” unaccompanied by any police threats; the court of appeals affirms, applying City of Sheboygan v. Cesar, 2010 WI App 170, 330 Wis. 2d 760, 796 N.W.2d 429 (consensual “knock and talk” interview doesn’t amount to seizure). United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (court finding unlawful seizure when police knocked on motel room door for 3 minutes without response, and at one point commanded, “Police. Open up the door.”), ¶13 n. 2.

Not argued: the “implied invitation” doctrine (see, e.g., State v. Davis, 2011 WI App 74, ¶10: police may enter curtilage if impliedly open to public). In other words, if an area around the home appears to be accessible to the public at large, the police also have an “implied invitation” to access that area. Here, the police went to Ryan’s back, not front, door – which on its face might raise at least a question about unlawful entry, against which the following details must be considered: “Kucharski walked to Ryan’s house and followed a trail to the back door because the front door did not appear accessible.  The front of the property had a dumpster in the driveway and was overgrown with weeds,” ¶3. Granted, the seeming inaccessibility from the front suggests the futility of a curtilage argument. On the other hand, just how much of an invitation does a trail present? In any event, the point here is simply that the “implied invitation” doctrine is relatively undeveloped terrain in Wisconsin caselaw, and will remain so if not raised. (Which isn’t to say that it should have been raised here; to the contrary, Ryan’s brief acknowledges that the front door “was not used as an active entryway,” and on these facts the argument probably would have been a non-starter.)

State v. Brian S. Wold, 2011AP1518-CR, District 2, 12/14/11

court of appeals decision (1-judge, not for publication); for Wold: Patrick A. Dewane, Jr.; case activity

Report from a named, citizen informant that a particular vehicle was “driving all over the roadway” was sufficiently reliable to support traffic stop for OWI, even though after spotting the vehicle, the officer followed it for a mile without himself observing any traffic violations. State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, applied.

¶10      Having addressed Wold’s unreliable tipster argument, we turn to whether reasonable suspicion existed.  At the time of the stop—not insignificantly, just after midnight[2]—Sohlden was acting on a reliable tip that a “possible intoxicated driver” was in a vehicle weaving in the roadway and going slower than the speed limit.  Upon arriving at the scene, he spotted a vehicle matching the make and license plate number of this possible intoxicated driver and he also observed the tipster’s vehicle.  We conclude that, given these facts, Sohlden had reasonable suspicion to stop Wold.

¶11      We further conclude that reasonable suspicion did not dissipate when Sohlden did not independently observe Wold commit a traffic violation before making the stop.  Wold argues that the one-mile distance and the time it took to travel that distance dissipated any reasonable suspicion that may have existed.  He bases this argument on “common sense and everyday experience.”  We are not persuaded that Sohlden’s brief follow time dissipated his reasonable suspicion.  Rather, we recognize, as the circuit court did, that the impaired ability to operate a vehicle does not require the continual commission of erratic driving, nor does it require commission of even one traffic violation.  We also agree with the court’s consideration of public safety.  “Indeed, a drunk driver is not at all unlike a ‘bomb,’ and a mobile one at that.”  Id., ¶35 (citation omitted).  In light of the potential for imminent danger that intoxicated drivers present, the tipster’s allegations indicating that Wold may have been intoxicated supplemented the reliability of the tip and further justified Sohlden’s investigative stop.  See id.  Given all the facts including the brief follow time, reasonable suspicion did not dissipate at the time of the stop.

on review of unpublished decision; for Martin: Byron C. Lichstein; case activity; prior post

Miranda – “Interrogation” 

Issue (composed by On Point):

Whether an exchange between Martin and an officer was the functional equivalent of “interrogation” so as to require interrogation.

The facts, very briefly, as taken from the court of appeals’ decision: Martin was under arrest for DC when an officer fished a gun out of his car. When the officer started to handcuff Martin’s companion, Henry, Martin asked why Henry was being arrested. The officer said it was for CCW, and Martin asked if they’d let Henry go if Martin said the gun was his. The officer replied: “I don’t want you to say it’s yours if its not.  I just want the truth, is the gun yours.” Martin said it was, and the officer asked Martin to describe it. He did.

Miranda warnings didn’t precede this exchange. Custody’s obvious; what about the “interrogation” requirement for Miranda warnings? Martin argues  State v. Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552 (in context: statement, “no, I’m the man behind the man” amounted to interrogation, because officer had “specific knowledge” of import of those words). The court of appeals rejected the analogy, deeming applicable instead, State v. Fischer, 2003 WI App 5, ¶21, 259 Wis. 2d 799, 656 N.W.2d 503 (“nothing in the record to indicate that the detectives had any specific knowledge of Fischer or of any unusual susceptibility to questioning he might have had”).

State v. Todd A. Schreiber, 2011AP1191-CR, District 1, 12/13/11

court of appeals decision (1-judge, not for publication); for Schreiber: Dustin C. Haskell, SPD, Milwaukee Appellate; case activity

Lane deviations provided reasonable suspicion for traffic stop.

¶9        In applying these standards, we agree with the circuit court that Grunwald had sufficient reasonable suspicion to stop Schreiber.  Grunwald testified that he had five years of experience patrolling roads, was assigned to the OWI task force at the time of Schreiber’s stop, and had a total of seventeen years of experience with the sheriff’s office.  Grunwald also testified that he observed three separate lane deviations by Schreiber.  Schreiber relies on State v. Anagnos, 2011 WI App 118, ___ Wis. 2d ___, ___N.W.2d___, to argue that there is no evidence of a traffic violation in this case, as lane deviations, particularly within a driver’s own lane, are common to most drivers.  Although our supreme court declined to adopt a bright-line rule “that repeated weaving within a single lane alone gives rise to reasonable suspicion,” the court recognized that an evaluation of the totality of the circumstances is necessary for a determination of whether reasonable suspicion exists for a stop.  Post, 301 Wis. 2d 1, ¶14.  A single instance of weaving is not at issue.  Prior to weaving twice within his own lane, Schreiber was observed crossing over one foot from the center lane into the right lane without signaling a lane change.  Arguably, the individual deviations could have innocent explanations, but that is not determinative.  “The law of investigative stops allow police officers to stop a person when they have less than probable cause.…  [P]olice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.”  Waldner, 206 Wis. 2d at 59.

State v. Tiffany Michelle Flowers, 2011AP1757-CR, District 1, 12/13/11

court of appeals decision (1-judge, not for publication); for Flowers: Daniel A. Necci; case activity

Conviction for carrying a concealed weapon (gun in a purse, in a car), § 941.23, upheld against second amendment challenge to facial validity. Court rejects strict scrutiny test. (The statute was amended by 2011 Wis. Act 35, §§ 50-55, to allow among other things conceal-carry for licensees; the amendment doesn’t affect the outcome of this appeal, ¶4 n. 3.) Court is bound by State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328 (right-to-bear arms protected by Art. I § 25 subject to reasonableness, not strict scrutiny, analysis) with respect to state constitution, ¶¶5-6. As to the impact of recent second amendment decisions such as District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the court cites with approval United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011): “The Fourth Circuit observed that ‘[t]he upshot of these landmark decisions is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home.  But a considerable degree of uncertainty remains as to the scope of that right beyond the home.’  Id. (emphasis added),” ¶8.

¶10      We conclude that nothing in Heller or in the federal appeals decisions brought to our attention has the effect of overruling our supreme court’s decision in Cole.  Although the cases are not precise about the legal standard to be applied in that analysis, none specifically apply a strict scrutiny test to the analysis.  Here, as in Cole, the concealed firearm was possessed on a public street, not in a home.  Local and state governments have as legitimate an interest in promoting safety of the public using public streets by prohibiting concealed weapons there as the federal government demonstrated in Masciandaro with a similar prohibition to protect the safety of visitors using our national parks.  Prohibiting the carrying of a loaded weapon concealed in an automobile on public streets is a reasonable exercise of police powers under the holding of our supreme court in Cole, the holding of the United States Supreme Court in Heller, and the holding of the Court of Appeals for the Fourth Circuit in Masciandaro.

Contrary authority: State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10 (CCW statute facially unconstitutional under the 2nd A, as failing strict scrutiny analysis). Of course, Schultz  and Flowers aren’t reconcilable. But another trial court has found the statute unconstitutional as applied under similar basic facts (i.e., gun in car), State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11 (balancing test applied; roughly: on one side, Pinnow had demonstrable security need for gun and on other, the gun was encased and unloaded so he didn’t pose immediate danger). That result isn’t incompatible with Flowers, which doesn’t discuss as-applied analysis. Flowers’ brief solely raises a facial challenge; nor does it recite any facts that might have established some need for protection – unlike Pinnow, who asserted his status as victim of an armed robbery.