On Point

State v. Jeffrey Steinhorst, 2011AP1360-CR, District 4, 11/23/11

court of appeals decision (1-judge, not for publication); for Steinhorst: Steven Cohen; case activity

Steinhorst made a prima facie showing that he did not validly waive counsel in a prior OWI case; therefore, he is entitled to a hearing at which the State must prove proper waiver, by clear and convincing evidence, else the prior conviction may not be used to enhance his current case. No transcript exists for the prior (1997) case. Steinhorst submitted an affidavit asserting that he wrongly believed that, when he entered his plea without benefit of counsel in that case, he could receive probation – because probation was not an option under that scheme, he lacked awareness of the range of penalties.

¶18      The State does not address the awareness-of-penalties issue on appeal.  Before the circuit court the State argued that, while Steinhorst initialed a box on the plea questionnaire form acknowledging that if he were placed on probation violation of the conditions of probation would result in revocation and sentencing after revocation, the form as a whole makes clear to any reader that probation was not part of the plea agreement being presented to the court.  However, the State is not persuasive in arguing that its reading of the questionnaire was necessarily Steinhorst’s understanding at the time of the plea, contrary to his averments.

¶19      Regarding the awareness-of-advantages-of-counsel issue, the State is correct in arguing on appeal that circuit courts are not required “to explain every single nuance about representation to a [d]efendant” and that courts should not “forc[e] someone to accept counsel.” However, Steinhorst does not argue to the contrary on either point.  Instead, his assertion is that he was without any idea that attorneys can provide significant advantages to criminal defendants, and entered a plea with both misunderstandings.

…

¶22      Because Steinhorst has pointed to specific facts supporting his contentions, the burden shifts on remand to the State to prove by clear and convincing evidence at an evidentiary hearing that Steinhorst’s waiver of counsel was knowingly, intelligently, and voluntarily entered. Ernst, 283 Wis. 2d 300, ¶27.  The State will in essence “be required to show that the defendant in fact possessed the constitutionally required understanding and knowledge which the defendant alleges” he did not have, due to what he claims was an inadequate plea colloquy.  Id., ¶31.  To satisfy its burden, the State may examine the defendant “to shed light on the defendant’s understanding or knowledge of information necessary for him to enter a voluntary and intelligent plea.”  Id., ¶31.  If the State is unable to meet its burden, the defendant will be entitled to “attack, successfully and collaterally, his or her previous conviction.”  Id., ¶27.

The court notes with some frustration that collateral-attack rule operates as a specific exception to the general principle that material absent from an appellate record presumptively supports a trial court ruling: “when a defendant collaterally attacks a prior conviction based on denial of the right to counsel, and the pertinent transcripts are not available, the defendant’s affidavit can alone be sufficient to establish a prima facie case,” ¶20. The court has previously identified transcript retention rules as problematic, ¶21, citing State v. Drexler, 2003 WI App 169, ¶11 n. 6, 266 Wis. 2d 438, 669 N.W.2d 182. However, “At this juncture, it is beyond the authority of this error-correcting court to do anything other than to apply the law,” id. Bear in mind, though, that the relief is purely procedural: entitlement to a hearing on the claim, nothing more. The opinion also contains an efficient summary of collateral attack on a repeater allegation, ¶¶9-13.

Dane Co. DHS v. Nikita B., 2011AP2054, District 2, 11/23/11

court of appeals decision (1-judge, not for publication); for Nikita B.: Suzanne l. Hagopian, Eileen Huie; case activity

Evidence held sufficient to sustain termination of parental rights, premised on substantial likelihood parent wouldn’t meet conditions for return of child placed in foster care:

¶8        This court’s review of a jury’s verdict is narrow.  Morden v. Continental AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659.  We affirm the jury’s verdict if any credible evidence, under any reasonable view, leads to an inference supporting the jury’s finding.  Id.(citation omitted).  The jury, not the appellate court, is to “balance the credibility of witnesses and the weight given to the testimony of those witnesses.”  Id., ¶39 (citation omitted).

…

¶18      We disagree with Nikita that the evidence is insufficient.  Although Nikita met some conditions and may have made some progress, several witnesses testified to Nikita’s difficulty with completing recommended programs, providing a safe home, and understanding her children’s needs.  Two social workers, including Maddox, whose testimony was, according to Nikita, “more up to date,” testified that they believed Nikita would not be able to meet the conditions for return within the next nine months.  Their testimony and the other testimony we have summarized is sufficient for a reasonable jury to find clear and convincing evidence of a substantial likelihood that Nikita would not be able to meet the conditions for return within the next nine months.

State v. Olu A. Rhodes, 2009AP25-CR, District 1, 11/22/11

court of appeals decision (not recommended for publication), on remand from, 2011 WI 73; for Rhodes: John J. Grau; case activity

Expert witness qualification rests in the sound discretion of the trial court; here, it was well within that discretion to allow the following testimony:

¶4        Marchant, who described herself as a “criminal intelligence analyst” working for the Department of Justice, testified that, using a computer program, she mapped the coordinates supplied by the cell-phone company for their various towers, and translated those coordinates into street intersections.  She testified that she was a high-school graduate and had undergone training to learn how to map the coordinates.  She also told the jury that she “received telephone analysis training, paneling training which involves cell phone, cell towers and understanding that information.”  As with the cell-phone company employee, she acknowledged that a cell phone will “grab the closest tower with the strongest reception.”  …

(Particulars recited by court, ¶7. It follows that the prosecutor properly argued to the jury that phone records “put Olu Rhodes at the scene of the shooting at the time of the shooting,” ¶¶8-10.)

The trial court didn’t erroneously exercise discretion in allowing the victim to be impeached with two prior convictions but disallowing a third (which was for driving without a license):

¶12     … “Whether to allow prior-conviction evidence for impeachment purposes under § 906.09, Stats., is within the discretion of the trial court.”  State v. Kruzycki, 192 Wis. 2d 509, 525, 531 N.W.2d 429, 435 (Ct. App. 1995).  Wisconsin does not let the jury know the nature of the crimes.  State v. Rutchik, 116 Wis. 2d 61, 76, 341 N.W.2d 639, 646 (1984).

¶13      In denying Rhodes’s request that the jury be told that the surviving victim had three rather than two convictions, the trial court opined:  “I think that an operating without a license is not such a crime that should be, even under the Wisconsin rules, considered.”  Significantly, Saleem’s lawyer agreed with the trial court.  Telling the jury that the surviving victim had three rather than two prior convictions without also telling them that one of the convictions was for a relatively minor offense, would have been misleading.  The trial court did not erroneously exercise its discretion in denying Rhodes’s request.

State v. Forrest Andre Saunders, 2011 WI App 156 (recommended for publication); for Saunders: Robert A. Kagen; case activity

Notice of Alibi, § 971.23(8) – DA Comment on Missing Witness 

“Alibi” merely refers to the fact that the defendant was elsewhere when the alleged occurred, ¶21, citing, State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 N.W.2d 110. Although § 971.23(8) bars prosecutorial comment on the defendant’s failure to produce an alibi witness, this restriction assumes both that a notice alibi was filed and that alibi is at issue. Saunders testified here that, at the time the crime occurred, he was at the house of a friend who wasn’t home – this testimony didn’t establish an alibi, and the prosecutor was authorized to comment on the fact that the friend wasn’t present to testify that he and Saunders were to meet. The prosecutorial comment was separately permissible because Saunders didn’t file a notice of alibi.

¶24      While Saunders argues that Paul was in fact an alibi witness, we cannot agree with his contention because—given the testimony that Paul was not home at the time Saunders was at his house—Paul would not have been able to vouch for Saunders’ whereabouts during the night of the burglary.  See Brown, 260 Wis. 2d 125, ¶13; Harp, 288 Wis. 2d 441, ¶15.  Contrary to Saunders’ assertions, the fact that he himself testified that he was elsewhere during the commission of the burglary does not mean that Paul would have done so.  Indeed, the best Paul could have done would have been to corroborate Saunders’ testimony that he (Paul) was not at home during the time that Saunders allegedly went there.  However, this is far different from an account that Saunders “was elsewhere at the time the alleged incident took place.”  See Brown, 260 Wis. 2d 125, ¶13.

¶25      Moreover, while Saunders repeatedly notes that the statute imposes no requirement that he file a notice of alibi to testify that he was elsewhere, the issue before us is whether the prosecutor improperly commented on the absence of Paul.  The statute, by its plain language, only bars a prosecutor from commenting on missing alibi witnesses whom the defendant has named in the notice of alibi.  See Wis. Stat. § 971.23(8)(a).  Our case law supports this plain-language interpretation of the statute.  See State v. Burroughs, 117 Wis. 2d 293, 305, 344 N.W.2d 149 (1984) (“The statute does not deny the defendant the right to testify, but rather, only requires that if he is going to claim not to have been at the scene of the crime, then he must notify the state where he was.”); see also State v. Haynes, 118 Wis. 2d 21, 28-29, 345 N.W.2d 892 (1984) (no error where trial court excluded defendant’s alibi witnesses for failure to comply with Wis. Stat. § 971.23(8) when trial counsel did not advise trial court of the possible alibi witnesses until mid-trial); State v. Selbach, 268 Wis. 538, 540, 68 N.W.2d 37 (1955) (“The language of the [notice of alibi] statute is plain and unambiguous.  Any notice given thereunder must be in writing.”).  Therefore, even if Saunders could have considered Paul an alibi witness and sought the protections of the notice of alibi statute, he was required to notify the State before trial.  Because he did not do so, however, the prosecutor’s comments were not inappropriate.

Sleeping Juror – Forfeiture 

Saunders’ failure to argue until after trial that a juror slept during testimony forfeited the issue.

¶31      Many of the reasons underlying the timely objection rule justify its application to Saunders’ case.  Most importantly, if Saunders had notified the trial court of the allegedly sleeping juror at the time he discovered the alleged misconduct, the trial court could have immediately corrected the problem.  See id., 156 Wis. 2d at 10.  Conversely, allowing Saunders to notify the trial court after trial about the juror would complicate the problem, and encourage future litigants to “build in an error” for appeal.  See id. at 10-11.  Indeed:

[t]he only conclusion possible from [circumstances in which defense counsel neither moved for a mistrial nor requested substitution of an allegedly sleeping juror until after guilty verdicts were returned] is that defense counsel, fully aware of the existence of the problem … , deliberately chose to proceed with the original jury to create a no-lose situation:  either a not guilty verdict would be returned or an arguably tainted guilty verdict would provide a basis for appeal. We strongly disapprove such a “gamesmanship approach to criminal justice.”

See United States v. Krohn, 560 F.2d 293, 297 (7th Cir. 1977) (citation omitted); see also State v. Huebner, 2000 WI 59, ¶¶11-12 & n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (“‘waiver’” or “‘forfeiture’” rule “prevents attorneys from ‘sandbagging’ errors,” in other words, from “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).

¶32      We therefore conclude that any party who notices that a juror may have fallen asleep at trial must bring the issue to the trial court’s attention during trial as soon as practicable after the person notices the sleeping juror.  We further conclude that, because Saunders waited until after trial to bring the issue to the trial court’s attention, he forfeited his right to appeal the trial court’s discretionary resolution of this issue. Because Saunders forfeited his right to contest the sleeping juror, the trial court did not err in upholding the conviction or in denying Saunders’ postconviction motion.

State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996), distinguished, ¶33 (Hampton “objected to the sleeping juror during trial … In fact, case law from multiple courts around the country establish that the proper time to object to an allegedly sleeping juror is when the issue first arises, thereby allowing the trial court to immediately correct the problem.  See Hampton, 201 Wis. 2d at 669 n.3″).

The court also notes that, although Hampton contends he told his attorney during trial that a juror was asleep, Hampton hasn’t raised the issue as a matter of ineffective assistance of counsel, ¶34.

State v. Lavalle Rimmer, 2010AP2680-CR, District 1, 11/22/11

court of appeals decision (not recommended for publication); for Rimmer: Christian C. Starner; case activity

The sentencing court did not actually rely on concededly inaccurate information, therefore Rimmer isn’t entitled to resentencing.

Methodology for analyzing inaccurate-information issue recited, ¶¶11-16. Court suggests that something akin to explicit reference to inaccurate information required, ¶16.)

State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11

court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity

The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined” the defense, by “giving an aura of science to the State’s theory that Hammer was shooting to kill,” ¶27; the State’s evidence (both eyewitness and physical) wasn’t “particularly persuasive,” ¶28; and, failure to provide this material in a timely manner prevented Hammer “from effectively rebutting the evidence with an expert witness,” ¶29. (Hammer’s postconviction motion included an affidavit form an expert indicating that the State’s investigation couldn’t “reliably yield the conclusions that it purported to yield,” ¶30.)

¶31      In sum, we cannot conclude beyond a reasonable doubt that the admission of the trajectory rod evidence at trial did not lead to the guilty verdict.  See Harris, 307 Wis. 2d 555, ¶42.  Without the trajectory rod evidence, the principal evidence of Hammer’s intent was Korhonen’s and LaRonge’s testimonies and they both admitted to feuding with Hammer and to having a compromising view of the shooting.  The only other evidence was the presence of holes, which may or may not have been bullet holes, of an undetermined age, in a neighboring house’s siding—hardly corroboration of the witnesses’ testimonies as to aim and intent.  By admitting the trajectory rod evidence without proper notice, the trial court permitted an aura of scientific corroboration to the testimony of Korhonen and LaRonge, which significantly harmed the defense, and denied Hammer the opportunity to rebut the harmful evidence.  Thus, we cannot say, beyond a reasonable doubt, that the admission of the trajectory rod evidence did not lead to the guilty verdict.

¶32      Furthermore, we find it troublesome that it took the State ten months to turn evidence of the trajectory rod investigation over to the defense.  While the trial court seemed to accept this discovery violation in due course, we do not.  Wisconsin Stat. § 971.23(1)(g) requires the State to turn over to the defense “within a reasonable time before trial” “[a]ny physical evidence that the [State] intends to offer in evidence at trial.”  The State failed to do so here, without any good reason, and Hammer was prejudiced as a result.  Consequently, we affirm the postconviction court, albeit, on different grounds, and remand the case back to the trial court for proceedings consistent with the postconviction court’s order.

Discussion of “variety of” tests for harmless error, ¶25; and the “several factors” considered when assessing harmful error, ¶26.

The postconviction court granted relief on a different rationale, inadequate foundation for trajectory testimony. The court of appeals affirmance on a different basis (discovery violation) is premised on the principle that a trial court ruling may be affirmed on grounds other than those addressed by the lower court, ¶1, citing, State v. Tolefree, 209 Wis. 2d 421, 424 n.3, 563 N.W.2d 175 (Ct. App. 1997).

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

That was a mistake. Hill v. Lockhart, 474 U.S. 52, 58–59 (1985), holds that a person who contends that ineffective assistance of counsel induced him to plead guilty establishes “prejudice” by demonstrating that, but for counsel’s errors, he would have insisted on a trial. …

…

… We therefore conclude that the state court’s decision in Payne’s case was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. §2254(d)(1). Hill supplies the rule for identifying “prejudice.”

However, the state court’s analytical mistake doesn’t equate to outright relief but, rather, “does no more than lift the restrictions on collateral review.” The court isn’t explicit on the point, but it’s obvious that this means de novo rather than deferential review. Same holds, incidentally, where the state court failed to reach an issue under habeas review: Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (“Because the state court did not decide whether Porter’s counsel was deficient, we review this element of Porter’s Strickland claim de novo.“) Basinger’s claim nonetheless falls short:

We assume, as the parties have done, that Payne’s lawyer told him that the maximum sentence could not exceed 20 years, and not just that he would try to persuade the judge that this was the limit. … But though Payne received bad advice from his lawyer, he received the correct information from the judge. He could have backed out when he heard the unwelcome news—the lawyers, jury, and witnesses were ready to proceed with trial—but he didn’t.

The state judge conducted a thorough interrogation before accepting the guilty plea… .

… Thus Payne knew that the maximum time in prison could exceed 50 years; he acknowledged the information without claiming to have a contrary understanding. A defendant’s statements made in open court control over later, contradictory contentions. See, e.g., Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010). No one can get collateral relief by insisting that his earlier statements to a judge were false—certainly not after a court has held a hearing and decided that the statements made at the time of the plea were true.