On Point

State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11

court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity

Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker, Tijuan.” Counsel’s decision not to exploit this opening, instead conceding Walker’s intoxication, was sound.

¶26      We will not “second-guess a trial attorney’s ‘considered selection of trial tactics or the exercise of a professional judgment in the face of alternatives that have been weighed by trial counsel.’  A strategic trial decision rationally based on the facts and the law will not support a claim of ineffective assistance of counsel.”  State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App. 1996) (citations omitted).  Here, trial counsel’s strategic decision to concede intoxication is exactly the sort of professional judgment that we conclude does not support an ineffective assistance of counsel claim.

¶27      First, trial counsel’s decision to concede intoxication seems particularly sound given that there was plenty of evidence indicating that the blood vials attributed to Braggs were in fact Braggs’s.  …

¶28      Second, trial counsel rationally concluded that the State’s case with regards to causation was weak and that the defense’s efforts would be better spent attacking that element.  …

¶29      Third, while trial counsel conceded intoxication, she did not ignore police error in labeling the vials; trial counsel cross-examined the witnesses accordingly and raised the issue in her closing statement.  Trial counsel ably used the mistake to Walker’s advantage, pointing out the sloppiness of the police investigation, while simultaneously gaining credibility with the jury by conceding an issue that she did not believe strong enough to pursue.

¶30      In short, trial counsel’s decision to concede intoxication and focus the defense’s energy on causation was a rational, strategic decision based upon professional judgment given the evidence demonstrating that the vials were correctly identified by the State Crime Lab and the weakness of the State’s case on causation.  Consequently, trial counsel’s concession does not amount to ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

Failure to cross-examine  police officers about inconsistencies in an accident report was, though admittedly non-strategic, not the product of deficient performance.

¶34      Both attorneys who represented Walker at trial acknowledged during the Machner hearing that, although they had a copy of the motor vehicle accident report before trial, they did not notice the discrepancies between the picture and written narrative and the fill-in-the-blank ovals.  However, we conclude that their failure to do so was not deficient.  The discrepancies were buried in a busy, fill-in-the-blank form that was dense with information.  Trial counsel’s failure to notice the discrepancies cannot be defined as an act or omission that falls “outside the wide range of professionally competent assistance.”  See Strickland, 466 U.S. at 690.

(Nor was the omission prejudicial: given “substantial” other evidence supporting the defense theory of sloppy police work, this line of cross-examination “would have been merely cumulative evidence that the investigation was sloppy and would have added little to the defense’s case,” ¶35.)

A separate challenge to failure to cross-examine the accident reconstruction expert about inconsistencies between his pretrial report and trial testimony is rejected on the basis that any discrepancy “is a minor one, with little impeachment value,” ¶38.

Counsel’s reliance on an “impartial eyewitness” was reasonable, notwithstanding the witness’s impeachment with a prior inconsistent statement.

¶47      Trial counsel’s reliance on Norman’s testimony was reasonable because he was an impartial eyewitness, who had no motive to lie, and whose account of the accident was favorable to the defense.  It was reasonable for trial counsel to believe any impeachment resulting from the contradictory police report was of little consequence because of the evidence presented by the defense demonstrating that the police investigation was sloppy and unreliable.  Weighing the sloppiness and unreliability of the police investigation against an adamant eyewitness with no motive to lie, trial counsel acted well within the realm of professional reasonableness in relying on Norman’s testimony to attack the State’s case on causation.  See Elm, 201 Wis. 2d at 464-65.  In short, trial counsel’s decision to rely on Norman’s testimony was not deficient, and therefore, not ineffective.  See Strickland, 466 U.S. at 690.

Nor was counsel ineffective for failing to retain an accident reconstruction expert: reliance on the eyewitness alone was sound trial strategy; the defense didn’t need its own expert in order to highlight weaknesses with the State’s expert; “hiring an expert could have been detrimental to the defense” (i.e., by contradicting the favorable eyewitness account); the strategy “to poke holes in the State’s case” by “emphasizing the mistakes made by police during the investigation” was reasonable, ¶¶51-54.

Dawn H. v. Pah-Nasa B., 2011AP1198, District 3, 11/29/11

court of appeals decision (1-judge, not for publication); for Pah-Nasa B.: Lora B. Cerone, SPD, Madison Appellate; case activity

Given the proof of lack of parental responsibility as a ground for terminating Pah-Nasa’s rights, counsel’s failure to object to testimony about a fight between Pah-Nasa and his mother wasn’t prejudicial.

¶14      We conclude Pah-Nasa has failed to prove prejudice, namely a probability sufficient to undermine our confidence in the jury’s determination.  See Strickland, 466 U.S. at 694.  Regardless of Pah-Nasa and Bonnie’s argument, the evidence supporting Pah-Nasa’s failure to assume parental responsibility was ample.  Pah-Nasa never attended a doctor or dentist appointment for Cayden and attended only one school event.  He did not know where Cayden went to school or in what extracurricular activities Cayden participated.  Dawn testified Pah-Nasa never helped pay for rent, food, medicine or other necessities, and failed to schedule doctor appointments for Cayden, get up with Cayden in the middle of the night, or enroll Cayden in school.  She explained Pah-Nasa was more like a babysitter than a parent.  Pah-Nasa admitted he was in arrears on child support.  When released from incarceration, Dawn kept Cayden in daycare even though Pah-Nasa was available to watch him.  Finally, at the time of the termination proceeding, Pah-Nasa had not seen Cayden for two to three years and had not spoken to him in over a year and one half. Although Dawn failed to return certain phone calls and messages regarding visitation, Pah-Nasa, who has filed pro se motions in order to reduce child support, never attempted to use the legal system to gain visitation with Cayden.  Finally, to the extent the September 20 testimony may have implied Pah-Nasa was angry or violent, Pah-Nasa testified that he knew Dawn was afraid of him because of “physical altercations” they had.  The jury also heard he had been incarcerated fourteen times.

Pah-Nasa wasn’t present at the dispositional hearing; the trial court’s denial of adjournment wasn’t an erroneous exercise of discretion under the 6-factor test of State v. Leighton, 2000 WI App 156, ¶¶27-28, 237 Wis. 2d 709, 616 N.W.2d 126.

¶18      Here, even though the court did not articulate the factors outlined in Leighton when denying the adjournment request, the record supports the court’s discretionary ruling.  First, it appears from the record that the court’s denial of the adjournment was based, in large part, on the fifth Leighton factor, “whether the delay seems to be for legitimate reasons or whether its purpose is dilatory.”  See id.  The only reason Pah-Nasa presented to the court for failing to attend the hearing was that he did not know the correct time.  Although the court recognized “this was a significant hearing,” the court, relying on the transcript from the previous hearing, observed it had twice advised the parties the dispositional hearing would be at 11:00 a.m. and that they would work into the lunch hour if necessary.  The court noted it had also sent written notice about the hearing to Pah-Nasa.  The record supports the court’s determination that “[Pah-Nasa] had full awareness of [the] hearing.”  Pah-Nasa failed to present a legitimate reason for adjournment.

¶19      As for the other relevant Leighton factors, we observe that, although this was Pah-Nasa’s first request for an adjournment, Dawn traveled eight hours to attend this proceeding.  We reject Pah-Nasa’s speculation that Dawn would not necessarily have been inconvenienced by an adjournment or that a delay would have been minimal.  We conclude the court did not erroneously exercise its discretion by failing to grant an adjournment.

Question Presented (composed by Scotusblog): 

Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Scotusblog page

Petitioner, a natural gas company, was found guilty by jury of one count of knowingly storing mercury without a permit, 42 U.S.C. § 6928(d)(2)(A). The jury wasn’t called upon to find such storage for more than one day, and the penalty provision of 42 U.S.C. § 6928(d) provides for a fine of “not more than $50,000 for each day of violation.” The district court nonetheless imposed a fine of $38.1 million dollars, representing the 762 days alleged in the indictment times the maximum allowed for each day of violation. Simply put, the question is whether Apprendi applies to fines – if so, then the maximum fine should be 50k. As the Brief in Opposition concedes, the “Court has never taken up ‘the question of whether the imposition of a fine falls under the Apprendi rule.'” Now it has.

Question Presented (composed by Scotusblog): 

Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

Hill: Scotusblog page; consolidated with Dorsey (lower court decision: United States v. Fisher, 635 F.3d 336 (7th Cir. 2011))

The Fair Sentencing Act of 2010, taking effect August 3, 2010, raised from 50 to 280 grams the amount of crack cocaine necessary to trigger a mandatory minimum of 10 years, and from 5 to 28 grams the amount needed to trigger a minimum of 5 years. Hill was found guilty of possessing 50 or more grams of crack with intent to distribute, the offense occurring before the Act took effect. The trial judge concluded that the Act did not apply retroactively and imposed 10 years, while noting he would have imposed much less if not for the mandatory minimum. Hill argued on appeal that as a matter of statutory construction (statutory text and legislative history) the Act should apply to anyone sentenced after enactment, even if the underlying crime was committed before. he thus seeks a reduction to the post-enactment mandatory minimum of 5 years. (Dorsey’s argument is the same, with the factual variation that although his crime predated enactment, his sentencing was post-enactment.) The arguments appear to be purely statutory in nature – whether the general federal savings statute, 1 U.S.C. § 109 (repeal of statute doesn’t “release or extinguish any penalty” unless expressly provided) prevents this Act from retroactive application. Not clear, in other words, that the outcome will necessarily have much if anything to say about state results. However, if the Court determines that reduction in a mandatory minimum isn’t tantamount to “release or extinguish,” then there might be an interesting discussion about retroactivity, with possible pertinence to state practice, though not binding.

Questions Presented (from Scotusblog): 

1) Did the Seventh Circuit violate this Court’s precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel’s statements that his client would lose the case and should plead guilty for their truth) on this jury at all?

2) Did the Seventh Circuit violate Mr. Vasquez’s Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court’s error on the jury that heard the case?

Scotusblog Page

Seventh Circuit opinion 635 F.3d 889 (7th Cir. No. 09-4056, 3/14/11)

Harmless error analysis by its very nature is fact-intensive, making some recitation of the facts unavoidable. Vasquez was convicted by jury of one count of conspiring to possess cocaine with intent to distribute, but acquitted of an integrally related charge of attempting to possess cocaine with intent. The charges stemmed from a transaction set up by an informant with two co-defendants who eventually pleaded guilty. Vasquez raised an innocent bystander defense, premised on the testimony of the wife of a co-defendant – she testified in effect that Vasquez coincidentally agreed to pick up her husband up, taking her car. Vasquez thus just happened to end up at the site of the planned drug deal, driving a car with $23,000 in a hidden compartment. On rebuttal, the government impeached the wife with jail recordings of conversations she had with her husband, which the trial court admitted for the truth of the matters asserted. Among other things related in the calls, the wife said that she’d talked to Vasquez’s attorney who told her he had advised Vasquez to plead guilty and that if the 3 defendant’s went to trial, “everyone is going to lose.” Admission of these recordings was error, but harmless, the lower court held (2-1; the dissent would have reversed for new trial). The majority, in a strikingly brief analysis which acknowledged “the issue is close,” stressed Vasquez’s flight from the scene, his reference to money, and a prior conviction for a similar offense. The majority made no mention of the acquittal.

It hardly bears mention that the Supreme Court isn’t an error-correcting court, and has better things to do than determine whether the lower court reached the “correct” result in a fact-bound context. But the standard for reviewing an issue on appeal is altogether different, e.g., Ornelas v. U.S., 517 U.S. 690, 695 (1996) (“We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review” re: probable cause to search / reasonable suspicion to stop). The cert petition indicates that the thrust is on how the harmless-error rule is to be administered, namely: the lower-court majority focused “solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel’s statements that his client would lose the case and should plead guilty for their truth).” In other words, the reviewing court must consider impact of the error on the jury, as well as strength of the prosecution’s case. The cert petition synopsizes the problem, this way:

Legal scholars and commentators have long recognized that two competing tests have emerged for determining whether an error is harmless. The first test inquires whether the error had any effect on the verdict. The second test inquires whether there was overwhelming evidence of guilt that was untainted by the error. …

The outcome might not have significant impact in Wisconsin, given that our courts are already commanded to “consider the error in the context of the entire trial, including the nature of the State’s evidence against the defendant and the nature of the defense,” State v. Hansbrough, 2011 WI App 79, ¶18. To be sure, Vasquez may be positing some conflict between, thus need to resolve, Neder v. United States, 527 U.S. 1 (1999) (focus on whether “jury verdict would have been the same absent the error”), and Chapman v. California, 386 U.S. 18 (1967) (beneficiary of error must prove “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”). Not only are these statements rhetorically distinct, so are their points of emphasis. Indeed, the lower court majority here casually observed that an innocent bystander “‘defense’ is difficult to sell,” even more so when the defendant doesn’t testify (as Vasquez did not) – would a court consider employing such cynicism if under more explicit restraint of the Chapman  wording? It is one thing to say the defense was weak on the particular facts, another to announce as a routine matter (of what? judicial notice?) that the chosen defense is intrinsically weak without regard to the particular facts, and indeed oblivious to the court’s own perception that the “issue is close.” All in all, an impressive bit of lawyering – inducing cert-review on a question of harmless error – whatever the final outcome.

Update: dismissed as improvidently granted, 4/2/12. Scotusblog analysis of dismissal, here.

Melissa M. Hines v. Daniel K. Resnick, M.D., 2011 WI App 163 (recommended for publication); case activity

The requirement in  § 893.82(5)  that a notice of claim against a state employee must be “served upon the attorney general at his or her office in the capitol by certified mail” is satisfied “by certified mail addressed to the attorney general at his or her capitol office, Main Street office, or post office box, or any combination of those three addresses, assuming that the notice otherwise complies with § 893.82(5),” ¶3.

Not terribly pertinent to SPD practice, to be sure, but you may want to relate the holding to § 806.04(11) (“If a statute … is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.”) The P.O. Box, incidentally, is 7857, Madison 53702-7857, ¶20 n. 5, though the 5307 zip seems to be equally acceptable, id. and text at ¶20.

What about the specific language in § 893.82(5) (“served … in the capitol”) and the idea that statutes shouldn’t be construed to render any text surplusage?

¶14      However, the undisputed facts in this case establish that service by certified mail to the attorney general’s capitol office never occurs, and cannot occur, regardless of how a claimant addresses a notice, or what physical location the claimant has in mind as its destination. And, obviously, a claimant cannot comply with the statute by hand delivering a notice to the attorney general’s capitol office because such service would not comply with the certified mail requirement.  Thus, the best any claimant can achieve is delivery of the certified mail notice to the attorney general’s Main Street office.

The surplusage rule of statutory construction contains a qualifier: if possible, every word of statutory text should be given effect. Here, service in the capitol isn’t possible, and it would be unreasonable to give effect to statutory phrasing simply incapable of effectuation, ¶31.

State v. Gustavo E. Lopez, 2011AP1037-CR, District 2, 11/23/11

court of appeals decision (1-judge, not for publication); for Lopez: Walter Arthur Piel, Jr.; case activity

¶8        While the record reveals that Lopez is correct in stating that the court took video evidence from the roadside stop into consideration when making the finding of probable cause, we disagree that this was in any way not allowed. When determining the facts available to the officer to formulate probable cause, “[t]he test is objective:  what a reasonable officer would reasonably believe under the circumstances.” State v. Londo, 2002 WI App 90, ¶10, 252 Wis. 2d 731, 643 N.W.2d 869.  Here, the trial court saw by video what the officer saw in person.  As we already stated, we have reviewed the video and the trial court’s findings from it are not clearly erroneous.  The video shows that Lopez was impaired.  The trial court is not limited to the officer’s testimony in finding probable cause.  It is the testimony plus the video that allowed the trial court to reach the conclusion it did.  We see no problem here.  The video is evidence.  Judges use evidence to find facts.

¶9        Under the totality of the circumstances, the facts available to the officer at the time of the arrest were sufficient to show probable cause.  Lopez ran a red light and proceeded to drive his vehicle over the center line of the lane.   Then, once the car was stopped, the officer smelled alcohol and Lopez admitted to consuming alcohol prior to driving.  Lopez failed his field sobriety test and the officer detected four out of six signs of intoxication in the horizontal gaze nystagmus test.  All of this evidence was available to the officer to formulate the conclusion that Lopez was likely intoxicated.  We therefore affirm the trial court’s finding of probable cause.