On Point

on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post

Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review / 
Stipulation (Offense Element) – Right to Jury Trial

Issues (from Smith’s PFR): 

1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver, As a Party to the Crime, Because the Circumstantial Evidence Did Not Provide a Basis Upon Which the Jury Could Make Reasoned Choices Between the Factual Possibilities of Guilt and the Factual Possibilities of Innocence.

2. Alternatively, a New Trial Must Be Granted Because the Weight of a Controlled Substance Is an Essential Element of the Offense, and the Trial Court Erroneously Accepted Smith’s Stipulation to the Weight Without Eliciting a Valid Waiver of His Right to Jury Trial on that Element.

Smith lost his sufficiency argument in the court of appeals, but obtained relief on the stipulated-element issue, so in effect the first issue above is raised by Smith and the second by the State on cross-petition. Taking them in that order:

The first issue relates to the standard for reviewing sufficiency of the evidence of a conviction based on circumstantial proof; as Smith’s PFR puts it: “Whether the standards of appellate review for the sufficiency of circumstantial evidence to support a jury verdict are less stringent in criminal cases than in civil cases?” Smith, that is, posits the existence of (and attacks) differential review depending on the nature of the case. He contrasts Merco Distributing Corp. v. Commercial Police Alarm Co., Inc., 84 Wis. 2d 455, 460, 267 N.W.2d 652 (1978) (where “there is no credible evidence upon which the trier of fact can base a reasoned choice between the two possible inferences, any finding of [the consequential issue] would be in the realm of speculation and conjecture”) on the civil side; with, on the criminal side, State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990) (“the trier of fact is free to choose among conflicting inferences of the evidence and may, within the bounds of reason, reject that inference which is consistent with the innocence of the accused”). In other words, if the evidence is in equipoise – it doesn’t provide a basis for the fact-finder to make “reasoned choices between” the competing factual possibilities – then acquittal is required. The court of appeals, citing Poellinger, saw its role as being to “adopt all reasonable inferences that support the jury’s verdict,” ¶14. The particulars won’t be canvassed here – the larger question of the standard of review being more significant – except to say that Smith argues that each of the facts relied upon as proof guilt (most prominently: his payment of cash to the recipient of mail containing drugs) is too ambiguous to support rejection of an innocent explanation, hence judgement of acquittal is compelled.

The second issue deals with removal of the weight of the THC from jury consideration. Although Smith signed a written stipulation as to weight and agreed during a colloquy that the “crime lab person” wouldn’t have to testify, the court of appeals held that his right to jury trial was violated. The court reasoned as follows. “Generally, any fact that exposes a defendant to a greater punishment is an element of the crime on which the defendant has the right to a jury trial. Apprendi v. New Jersey, 530 U.S. 466, 477 (2000); State v. Warbelton, 2009 WI 6, ¶¶20-21, 315 Wis. 2d 253, 759 N.W.2d 557.” That is, the weight of the substance affected punishment, therefore Smith had a right to jury trial on that factual issue. And, because the right to jury trial is personal to the defendant, waiver must be on the record; more particularly, waiver must satisfy the colloquy requirements of State v. Anderson, 2002 WI 7, ¶¶23-24, 249 Wis. 2d 586, 638 N.W.2d 301. Those requirements weren’t observed, entitling him to relief. Presumably, then, the supreme court will decide whether waiver of the right to jury on punishment-enhancing facts requires a personal colloquy establishing knowing, intelligent, etc., waiver. The remedy for a violation may also be at issue: new trial or entry of judgment of conviction on non-enhanced offense (see opinion below, ¶¶43-46).

Drafting and filing petitions without disclosing counsel’s involvement (“ghostwriting”) didn’t violate counsel’s duty of candor to the court, In re Liu, 2nd Cir. No. 09-90006-am, 11/22/11 (“we conclude that her ghostwriting did not constitute sanctionable misconduct … In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court.” Caselaw  surveyed.) 

Speaking of candor to the tribunal, Kim v. Westmoore Partners, Cal. App. 4th Dist. No. G044216, 11/29/11: “The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. … Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.”

And: “maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable. The ostrich is a noble animal, but not a proper model for an appellate advocate,” Gonzalez-Serv v. Ford Motor Co., 7th Cir. No. 11-1665, 11/23/11. Bit of push-back, here (including from the chastised attorney himself); and here (“The case against judicial snarkiness is simple. It sets a bad tone and it is unnecessary.”) At least no one references kangaroos. Marquette’s own Michael O’Hear says Judge Posner went too far in his criticism, by making the attorney a “laughingstock.” This Volokh commenter might disagree as to whether the criticism was undeserved: “if you are going to be foolish enough to flip the bird to someone like Judge Posner, you have nobody to blame but yourself when taught that Posner can flip back a bigger bird than you ever dreamed of.” Regardless of the particulars, as Steven Lubet’s “Bullying from the Bench” continues to remind more generally, the line between rebuke and abuse is easily crossed (“I agree that slipshod lawyering can be a problem. But in the end, an incompetent lawyer is far less dangerous than a judicial bully”), especially in lesser hands than Judge Posner’s.

Continuing the theme of candor and rules of ethics: The California supreme court will decide whether to admit to the bar the “disgraced journalist” Stephen Glass, Esq. (?). Book and movie sure to follow, regardless. For whatever it’s worth: Kevin Jon Heller, well-known expert in international law, unqualifiedly supports Glass’s admission to the bar.

Jeffrey L. Fisher, “The Bill of Rights Doesn’t Come Cheap” (re: upcoming argument in Williams v. Illinois, the confrontation clause and lab analyst testimony); Erwin Chemerinsky shares his thoughts, “The Latest Test on the Confrontation Clause.”

Thinking of starting your own blog? “Panel Admonishes Criminal Defense Attorney For Blog Naming Clients, Omitting Disclaimer.”

David E. Bernstein, “Brandeis Brief Myths” (the common wisdom “that he was champion of women’s rights … is hard to square with the outright sexism of Brandeis’s brief in Muller.”) Bonus link! “Federalist Society: Defending Individual Rights Against Progressive Reform” (Berstein and UW’s Victoria Nourse square off last month on Lochner, at the Madison Club).

Mary Margaret Giannini, “The Swinging Pendulum of Victims’ Rights: The Enforceability of Indiana’s Victims’ Rights Laws.”

Lindsay C. Nash, “Considering the Scope of Advisal Duties Under Padilla” (“This Article explains how the Padilla opinion provides direction on the scope of a defense attorney’s duty vis-à-vis non-citizen clients and argues that … defense attorneys must advise non-citizen clients as specifically as research allows in order to adequately inform them about the immigration consequences of contemplated criminal dispositions.”)

Wayne A. Logan, “Populism and Punishment” (“increasing reason now exists for the court—and state courts—to invoke ex post facto principles to rein in the proliferating reach and onerous effect of [sex offender] registration and community notification laws”).

Michael O’Hear, “Why Are Black Suspects More Likely to Give a False Confession Than White Suspects?”

What? You came here looking for cases? OK, if you insist:

State v. Elliott, Iowa SCt No. 09-0633, 12/2/11: Detective’s testimony as to what he was told by an eyewitness was erroneous hearsay, notwithstanding limiting instruction that the testimony wasn’t for the truth of the matter but merely to explain how and why investigative focus shifted to Elliott. Good discussion as to hearsay limits on “investigative” background, albeit with exclusive attention to Iowa caselaw. A few cases from other jurisdictions canvassed in this prior post. It’s a recurring issue.

U.S. v. Powell, 4th Cir No. 08-4696, 11/14/11: Routine traffic stop, Powell (a passenger) gave no cause for alarm, but a record check showed him to have a suspended DL and “priors” for robbery – “Today, we once again are presented with a case in which the Government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion.” Contains discussion to effect that in most instances, prior criminal record isn’t alone enough to frisk. Similar, at least on this principle, State v. Buchanan, 2011 WI 49, ¶13 (“it is clear that an arrest record by itself would not, without more, support reasonable suspicion,” but in conjunction with other factors did permit frisk).

U.S. v. Sanchez, 9th Cir No. 10-50192, 11/1/11: “We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial.” Sanchez argued that he was coerced by threats to his family to become a mule. The government responded: [W]hy don’t we send a memo to all drug traffickers … and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because … they’ll get away with it if they just say their family was threatened. …” Relief granted despite absence of objection, under plain error analysis. Category tag: “prosecutorial misconduct –> send-a-memo error”. Possible training material on when not to send a memo, here.

People v. Rivera, Cal App No. A130421, 11/30/11: Massage, escort and (redundancy alert!) sexual services advertised on Craigslist. What could possibly go wrong? Not the usual, as it turns out; at least, it took awhile before Rivera strangled the victim. Tried for the murder, he denied intent to kill. In a moment of sheer inspiration, the prosecutor said that he’d “portray the victim, and take defendant through the act of strangulation.” Rebuffed by the judge, “the prosecutor returned to court with a female mannequin wearing a blue dress, a pink ribbon, and hat” for use as a demonstrative tool. Defense counsel objected, but after the judge “urged defense counsel to ‘disrobe her’ and ‘take off the hat,’ the hair, and the pink ribbon,” the demonstration proceeded, with Rivera “‘led’ by the court or prosecutor on what to do during the courtroom demonstration.” Hard to imagine what the jurors might have been thinking. (Randy Newman, “You Can Leave Your Hat On”? Yes, that would be tasteless, which is exactly the point: this was a demonstration of nothing but tastelessness.) The Court of Appeal holds that the demonstration was cumulative, in light of sufficient evidence anyway of Rivera’s mental state, besides which didn’t have probative value given dissimilarities between recreation and alleged crime. Not probative and inflammatory – but the trifecta eludes Rivera, the error deemed non-prejudicial. Category tag: “prosecutorial misconduct –> mannequin-strangling error”.

State v. Nikolas S. Czysz, 2010AP2804-CR, District 2/4, 12/1/11

court of appeals decision (not recommended for publication); for Czysz: Dianne M. Erickson; case activity

The trial court properly exercised its discretion under State v. Gonzalez, 2008 WI App 142, 314 Wis. 2d 129, 758 N.W.2d 153, in dismissing a juror on the fourth day of trial after the learning that two of the juror’s sons had been prosecuted by another prosecutor from the same district attorney’s office prosecuting Czysz. During voir dire, the juror hadn’t responded when the panel was asked for contact with the DA’s office “in any way whatsoever” – she explained this silence by saying she herself “had nothing to do with the DA.” Though the trial court dismissed her, it recognized that she “probably wouldn’t have been stricken for cause.”

Juror-bias taxonomy is described in State v. Faucher, 227 Wis. 2d 700, ¶25, 596 N.W.2d 770 (1999): statutory, subjective, and objective. Lack of juror candor may establish bias, either subjective or objective, 227 Wis. 2d 700 ¶¶44-49, and Czysz argues the trial court erred in failing to apply lack-of-candor analysis. the court of appeals rejects the argument, because that analysis applies where the juror is biased and not, as Czysz maintains, where the juror in question is not biased:

¶16      Circuit courts have a duty to ensure that the impaneled jury is free of bias or prejudice.  Gonzalez, 314 Wis. 2d 129, ¶21.  “Lack of juror candor” cases involve the concern that a biased juror was impaneled, which implicates a defendant’s constitutional right to an impartial jury. See U.S. Const. amend. VI; Wis. Const., art. I, § 7.[2]  Here, Czysz is concerned that a juror who was not biased did not sit on the jury.  However, a defendant, although entitled to fair and impartial jurors, is not entitled to “jurors who he hopes will be favorable towards his position.”  State v. Mendoza, 227 Wis. 2d 838, 863, 596 N.W.2d 736 (1999) (citation omitted).  “A defendant’s rights go to those who serve, not to those who are excused.”  Id.  Accordingly, we reject Czysz’s contention that the “lack of juror candor” cases, as discussed by Faucher, govern the present case.

As noted, dismissal was proper under Gonzalez (which doesn’t require a showing of bias to support mid-trial dismissal of a juror):

¶21      Czysz argues that Gonzalez differs from the present case because in Gonzalez the court expressly stated that it was dismissing the juror “for cause.”  Id., ¶13.  Here, Czysz points out, the circuit court stated that the juror “probably wouldn’t have been stricken for cause” because the juror told the court that she thought her sons “deserved to be punished.”  However, when the circuit court statements from each case are read in context, it is evident that in both cases the circuit court was concerned about the possibility that bias might occur.  Although the circuit court inGonzalez stated it dismissed the juror “for cause,” the court’s explanation for dismissing the juror was that it was “a precautionary measure, because of the possibility of [the juror] being unfair to one side or the other and the possibility that it would cause a mistrial when [the juror] removed herself in the course of deliberations ….”  Id.  Similarly, in this case the circuit court dismissed the juror as a precautionary measure because it was concerned that, despite the juror’s responses to the court’s questions, her sons’ prosecution might affect her ability to be an impartial juror.  The circuit court in this case, as in Gonzalez, did not need to determine that there was one of the specific types of bias identified in Faucher that constitutes “cause.”  See id., ¶12.

State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11

court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity

Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as the blood was drawn by a person enumerated in § 343.305(5)(d). One such person is a “registered nurse.” Perzel’s blood was indisputably drawn by a “nurse,” who wrote on the specimen form that she was an “RN” – Perzel argues that this notation, without more about her qualification as a “registered nurse,” is insufficient to establish the necessary foundation for admissibility. Observing that the “RN” notation, coupled with the person’s undisputed status as a nurse, provided sufficient basis for the trial judge to conclude she was a “registered nurse” (¶3), the court rejects the argument:

¶4        Perzel’s argument for reversal is not persuasive.  His argument, on its face, is inconsistent with Wis. Stat. § 901.04(1).  That statute reads, as pertinent here:  “Preliminary questions concerning … the admissibility of evidence shall be determined by the judge ….  In making the determination the judge is bound by the rules of evidence only with respect to privileges ….”  Id. (emphasis added).  So far as I can tell, Perzel is arguing that the “RN” notation is inadmissible hearsay and that it follows that the notation could not be considered by the court in its preliminary determination that the blood test results were admissible under the statute.  Section 901.04(1), however, instructs that the rules of evidence apply only “with respect to privileges.”  In view of this statute, it is not apparent why Perzel believes this preliminary question is governed by the rules of evidence.  And, Perzel does not otherwise explain why the hearsay rules of evidence apply to the judge’s decision at issue here.

Lots of loose play in the foundation joints, in other words. The nurse didn’t testify, of course (otherwise the issue would have been cleared up), and her document was admitted over hearsay objection. The jury was instructed that, on account of the document, “relevant evidence that the defendant had a prohibited alcohol concentration at the time of the alleged operating” had been “received” (Perzel’s Brief, pp. 3-5). Was a Melendez-Diaz sort of confrontation objection (forensic laboratory reports are testimonial for sixth amendment purposes) available? Hard to say, without knowing more; but as this result illustrates, hearsay rules don’t impede § 343.305(5)(d) admissibility. See, State v. Richard Dean Boyer, for recent summary of general principles re: forensic documents and confrontation.

Thanks to blogger Bill Tyroler’s Westlaw-like brain, incisive analysis, entertaining writing, and warp-speed posting, On Point is now celebrating 100,000 hits.  Not too shabby for a blog devoted to improving indigent defense in Wisconsin.  Cheers to the many faithful readers who have made On Point a “hit” !

State v. Michael P. Parizanski, 2011AP395, District 2, 11/30/11

court of appeals decision (1-judge, not for publication); for Parizanski: Andrew Mishlove; case activity

Seizure of motorist who had parked by the side of a road, leading to an OWI arrest, was supported by community caretaker rationale as informed by State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598.

¶10      Here, West testified that Parizanski’s vehicle was pulled over onto the partially paved shoulder of a two-lane highway.  It was in the early morning hours, dark out, and Parizanski’s “lights were on.”  West testified that, according to the map presented at the hearing, the vehicle was stopped outside of the village of Fontana borders.  That same map indicates that there were no side streets off of that stretch of Highway 67 where Parizanski was stopped.  As did the officer in Kramer, West identified a concern that Parizanski may be in need of assistance.  He testified, “Often we see cars pulled over and I wanted to check to see if he needed any assistance ….  I felt I wouldn’t have been diligent in my job if I didn’t check to see if the person needed assistance.”  Indeed, West’s first inquiry upon approaching Parizanski’s vehicle was whether everything was all right.

The various factors involved in weighing public need versus privacy interests appear all militate in favor of the former: substantial public interest in assisting possibly stranded motorists; time and location (1:13 a.m., shoulder of state highway outside village borders); minimal display of authority (emergency lights, already-stopped motorist); “stopping briefly to make contact with Parizanski was the only reasonable means of determining whether he was in need of assistance,” ¶¶13-14.

Although Parizanski was parked 200 feet outside the officer’s jurisdiction, suppression isn’t required notwithstanding the § 175.40(6)(a) restrictions on authority to arrest and render assistance outside the police officer’s jurisdiction:

¶17      Both parties cite to State v. Popenhagen, 2008 WI 55, ¶¶68, 70, 309 Wis. 2d 601, 749 N.W.2d 611, for the proposition that, even if there were a statutory violation, the suppression of evidence is within the discretion of the court.  See also State v. Keith, 2003 WI App 47, ¶9, 260 Wis. 2d 592, 659 N.W.2d 403 (suppression not required merely because an officer acts outside of his or her jurisdiction).  The parties disagree as to whether suppression is appropriate in this case.  However, the circuit court determined that West was engaged in bona fide community caretaker activity when he approached Parizanski’s vehicle.  The court further determined that the fact that West was outside of his jurisdiction by 200 feet at the time of the stop did not negate the validity of the initial stop.  In light of its determination that West was engaged in a reasonable community caretaker function when he stopped Parizanski’s vehicle, the circuit court did not erroneously exercise its discretion in denying Parizanski’s request to exclude evidence stemming therefrom for purposes of the refusal hearing.[4]

The cited statutory provision (§ 175.40(6)(a)) limits an officer’s authority to “arrest or provide aid or assistance” “outside of his or her territorial jurisdiction,” absent certain enumerated conditions. Included among the latter: “The officer is taking action that he or she would be authorized to take under the same circumstances in his or her territorial jurisdiction. … [Or,] The officer is acting to respond to … An emergency situation that poses a significant threat to life or of bodily harm.” The court may have meant that one if not both conditions applied here. (The court, to be sure, didn’t say so explicitly.) It’s far from obvious that the officer confronted an emergency involving a significant threat. On the other hand, it might be said that the activity would have been no less “authorized” by the community caretaker doctrine had it occurred 200 feet away – but this assumes that the territorial jurisdiction provision applies to such a broad grant of authority, a question that is precedential to say the least. Consider the State’s justification for this extra-territorial action, namely: “Officer West’s arrest of Parizanski was lawful under the citizen’s arrest analysis … Upon approaching the vehicle to offer his assistance, as any citizen could do, Officer West then observed facts which led him to believe that Parizanski was operating a motor vehicle while intoxicated. … Thus, a citizen’s arrest was appropriate.” Resp. Br., p. 28. But remember in the first instance that the officer didn’t merely approach and offer assistance, he indisputably seized Parizanski before offering assistance, ¶7. The question, then, is whether a private citizen may detain someone else in order “to offer his assistance.” If you think that proposition doubtful, then you probably see the need for more elaborate discussion of the reach of § 175.40(6)(a). That provision was promulgated as part of 93 Wis Act 98, sec. 115. A drafting file of that vintage isn’t available on-line, so if you’re interested in seeing what if any evidence exists of drafting intent, you’ll have to go old-school: look in a library that is a depository for drafting files.

court of appeals publication orders, 11/29/11

On Point posts from this list:

2011 WI App 145 State v. Joel D. Rhodes

2011 WI App 146 State v. Scott R. Long

2011 WI App 147 State v. Kenneth M. Davis

2011 WI App 148 State v. Brian K. Avery

2011 WI App 149 J. K. v. Mark Peters

2011 WI App 151 State v. Omark D. Ward

2011 WI App 152 State v. Little A. Stewart

2011 WI App 154 State v. Jeffrey S. Firebaugh