On Point

State v. Gary F. Wieczorek, 2011AP1184-CR, District 3, 11/8/11

court of appeals decision (1-judge, not for publication); for Wieczorek: James R. Koby; case activity

Warrantless arrest of Wieczorek on his front porch for OWI, after he answered the officer’s knock was constitutional. The record doesn’t show that Wieczorek had a reasonable expectation of privacy in the porch. ¶¶10-11, distinguishing State v. Walker, 154 Wis. 2d 158, 184-85, 453 N.W.2d 127 (1990) (expectation of privacy in fenced-in backyard). Moreover, the officer didn’t enter the house, ¶13, contrasting State v. Larson, 2003 WI App 150, ¶24, 266 Wis. 2d 236, 668 N.W.2d 338; and, Wieczorek consented to the officer’s presence on the porch, ¶15. Finally, the arrest was supported by probable cause:

¶17      We conclude that, irrespective of any alleged impropriety in Mork’s investigatory detention, after Wieczorek came outside to talk to Mork, Mork had probable cause to arrest Wieczorek for operating while intoxicated. Probable cause exists when the officer has “reasonable grounds to believe that the person is committing or has committed a crime.”  State v. Popke, 2009 WI 37, ¶14, 317 Wis. 2d 118, 765 N.W.2d 569 (citation omitted).  Here, prior to making contact with Wieczorek, Mork knew Wieczorek’s vehicle had just been involved in a hit and run causing property damage and the reported driver was male.  Mork responded to Wieczorek’s address and found the damaged vehicle in Wieczorek’s driveway.  Mork knew Wieczorek was the only adult male living at the residence.  When Mork made contact with Wieczorek, Wieczorek appeared intoxicated—he could not stand straight, used the door for stabilization, had slurred speech and red glassy eyes, and smelled like alcohol.  Based on his observations and knowledge, Mork had probable cause to believe Wieczorek operated his vehicle while intoxicated.

City of Sheboygan v. Benjamin B. Schultz, 2011AP904, District 2, 11/09/11

court of appeals decision (1-judge, not for publication); for Schultz: Casey J. Hoff; case activity

Stop of Schultz’s vehicle supported by community caretaker doctrine where, as Schultz drove past officer conducting an otherwise unrelated traffic stop, Schultz’s passenger door opened up and someone inside of Schultz’s vehicle yelled out.

¶7        While the community caretaker function is not like a typical search and seizure, Fourth Amendment considerations still apply.  Anderson, 142 Wis. 2d at 167-68.  We apply a three-part test to determine whether an officer was lawfully exercising his or her community caretaker functions:  (1) did a seizure occur?; (2) if yes, was the police conduct a bona fide community caretaker activity?; and (3) if yes, did the public need and interest outweigh the intrusion upon the privacy of the individual?  Id. at 169.

¶8        There is no question that Schultz was seized.  We thus move to the second part of the test.  When determining whether an officer was acting as a community caretaker, a court must examine the totality of the circumstances at the time of the police conduct.  Kramer, 315 Wis. 2d 414, ¶30.  The circuit court concluded that if a car drives by a police officer with its door open and one of the passengers yells out, the officer has a duty to investigate the situation to make sure no one in the car is in danger. We agree that the investigation of this situation clearly falls within an officer’s community caretaker function.

¶9        We now turn to the third part of the test:  whether the public need and interest outweighed the intrusion upon the privacy of Schultz.  Given that Officer Smith testified that while he was conducting a traffic stop a car drove by with an open passenger door and one of the occupants yelling, it was reasonable for Smith to investigate to find out if someone in the vehicle needed assistance, as there is no rational reason for a citizen to open his car door as he drives by a police officer conducting a traffic stop. As it was reasonable for the officer to determine if someone in Schultz’s car was in danger or needed assistance, we hold that the public safety interests outweighed the privacy interests of Schultz.

Compare, State v. Eric W. Sagen, 2010AP2119-CR, District 4, 1/20/11 (yell from inside passing vehicle triggered community caretaker stop).

 Posting will be light to non-existent till approximately November 16. Some links in the meantime:

Michael O’Hear, “Supreme Court Review: Overarching Themes”

Richard D. Friedman, “Coping with the Melendez-Diaz line”

Washington supreme court: county noise ordinance unconstitutional (maj. op.; diss1; diss2)

Margaret Flynt, “The Baader-Meinhof Phenomenon” (Mr. Badger wonders about the Baader-Meinhof reference, which is a distraction at best, inflammatory at worst, but perhaps it is merely an attention-grabber, in which case: mission accomplished! In any event, the real topic of that post is ineffective assistance at the plea bargaining stage.)

Paul L. Caron, “The Numbers: J.D. Degrees and Lawyer Employment”

Ninth Circuit Blog, Habeas Handbook

Samuel Wiseman, “Habeas After Pinholster”

Oregon Federal Defender, “Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court.”

Andrew Eppich, “Wolf at the Door: Issues of Place and Race in the Use of the ‘Knock and Talk’ Policing Technique”

Mike Sacks, “Supreme Court Punts Death Penalty Case“; “Supreme Court Looks At Unreliable Eyewitness IDs And Appears To Blink“

Samuel Morgan v. Hardy, 7th Cir No. 10-3155, 11/7/11

seventh circuit decision

Habeas – Recantation 

The Illinois state court didn’t mishandle either the facts or applicable law, and its rejection of State witness Prater’s post-trial recantation as incredible wasn’t unreasonable. The petitioner’s task is to “show[] that the state court determined an underlying factual issue against the clear and convincing weight of the evidence” – though the recantation here is consistent with the physical evidence, so is the witness’s trial testimony. (Meta-message: evidentiary equipoise doesn’t cut it under AEDPA, not by a long shot:)

It bears repeating that Morgan faces a stringent standard. See Collins v. Gaetz, 612 F.3d 574, n. 5 (7th Cir. 2010). … In the end, the Illinois Supreme Court was unconvinced that, based on the physical evidence, Prater’s recantation was more convincing than his trial testimony. Prater’s trial testimony, in light of the physical evidence, may indeed require a “stretch of the imagination,” as suggested by the district court. But we cannot conclude that the Illinois Supreme Court’s decision to accept one set of events over another, when both are supported by the same physical evidence, is against the clear and convincing weight of the evidence. See Wood v. Allen, 130 S.Ct. 841, 849 (2010) reh’g denied, 130 S.Ct. 1942 (2010) (“[S]tate-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”).

…

It was not against the clear and convincing weight of the evidence for the Illinois Supreme Court to reject Prater’s new account—even if it was a more “plausible version of events”—in favor of Prater’s original testimony, which, as the Illinois Supreme Court noted, “made sense too.” Indeed, as the court correctly noted, “plausibility” is not the test. Motley’s and Merkson’s history of violence merely provides support for another plausible scenario, the rejection of which is not objectively unreasonable. Again, we point out that “[a] decision is not objectively unreasonable unless it falls ‘well outside the boundaries of permissible differences of opinion.’ ” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).

Nor is Morgan’s cause aided by evidence that the same state agents who obtained Prater’s account had coerced a suspect in a different case: the state court’s determination that the two cases were dissimilar (Prater, unlike the suspect in the other case, wasn’t beaten and his invocation of counsel was honored) wasn’t unreasonable under AEDPA review.

Habeas – Brady Claim 

Morgan argues that the State provided false or incomplete disclosure of drug cases filed against witness Gregson, including preferential treatment on those cases in exchange for her testimony against Morgan. A successful Brady claim requires that 1) the government failed to disclose favorable evidence that 2) was “material,” in the sense of reasonable probability of a different result. Morgan can get past the first, but not the second, requirement: there is “no direct evidence” of lenient treatment of Gregson, but even if there were, her trial testimony was sufficiently corroborated that the state court’s conclusion this information wasn’t “material” was not unreasonable.

Habeas – Ineffective Assistance – Prejudice 

Choice of defense. Failure to pursue either voluntary intoxication or self-defense, even if the product of deficient performance, wasn’t prejudicial within the meaning of (deferential) AEDPA review. The state court found neither evidence of intoxication so severe that Morgan couldn’t form the requisite intent, nor a reasonable likelihood of a successful defense of voluntary intoxication. Given those findings, the state court’s conclusion of no prejudice must be sustained. As for self-defense, the state court’s conclusion that Morgan was barred as a matter of law from using deadly force because the evidence overwhelmingly showed him to be the aggressor wasn’t unreasonable.

Counsel’s absence. Lead counsel’s absence during certain parts of the trial didn’t amount to a denial of counsel, so as to dispense with showing prejudice, United States v. Cronic, 466 U.S. 648, 654 n. 11 (1984):

… Here, a counsel was physically present at all stages of the litigation—Levin’s co-counsel, Steven Decker represented Morgan in Levin’s absence—and therefore, we cannot conclude that Morgan was denied counsel at critical stages of trial. The Illinois Supreme Court’s determination to apply Strickland, instead of presuming prejudice under Cronic, was not contrary to clearly established federal law.

The court string-cites several cases illustrating the presumption of prejudice when counsel isn’t present at a critical stage.

Miller: SCOTUSblog page; consolidated with Jackson: SCOTUSblog page

Question Presented (from SCOTUSblog):

Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Sound at least vaguely familiar? It should: our supreme court resolved that very question last Term, in State v. Omer Ninham, 2011 WI 33. (Ninham’s own cert petition remains pending, No. 11-6496, and in light of these grants will almost certainly be held in abeyance.) Incidentally, Ninham’s counsel, Bryan A. Stevenson / Equal Justice Initiative, is also counsel for both Miller and Jackson.

Bobby v. Archie Dixon, USSC No. 10-1540, 11/7/11 (per curiam), reversing Dixon v. Houk, 627 F.3d 553 (6th Cir 2010)

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals for the Sixth Circuit purported to identify three such grievous errors in the Ohio Supreme Court’s affirmance of respondent Archie Dixon’s murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded jurist could agree with that court’s decision, the Sixth Circuit’s judgment must be reversed.

Dixon raises 3 Miranda-related challenges. First, after Dixon’s arrest on an otherwise unrelated forgery, the police questioned him about the murder without administering Miranda warnings. Dixon had previously, during a chance non-custodial encounter with a detective, invoked his right to counsel and the police feared he would again invoke that right should they give him Miranda warnings. The Sixth Circuit held that, in light of the prior invocation of counsel, the subsequent interrogation violated clearly established principles. The Court overturns that holding:

That is plainly wrong. It is undisputed that Dixon was not in custody during his chance encounter with police on November 4. And this Court has “never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” McNeil v. Wisconsin, 501 U. S. 171, 182, n. 3 (1991); see also Montejo v. Louisiana, 556 U. S. 778, ___ (2009) (slip. op., at 16) (“If the defendant is not in custody then [Miranda and its progeny] do not apply”).

Dixon separately argues that his statement was involuntary because a detective told him that a co-actor might “start[] cutting a deal,” so “now is the time to say” whether Dixon was involved in the crime:

Second, the Sixth Circuit held that police violated the Fifth Amendment by urging Dixon to “cut a deal” before his accomplice Hoffner did so.¹ The Sixth Circuit cited no precedent of this Court—or any court—holding that this common police tactic is unconstitutional. Cf., e.g., Elstad, supra, at 317 (“[T]he Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily”). Because no holding of this Court suggests, much less clearly establishes, that police may not urge a suspect to confess before another suspect does so, the Sixth Circuit had no authority to issue the writ on this ground.²

Finally, the Court rejects the idea that the “question-first, warn-later” stratagem required suppression; Missouri v. Seibert, 542 U. S. 600 (2004), distinguished:

In this case, no two-step interrogation technique of the type that concerned the Court in Seibert undermined the Miranda warnings Dixon received. In Seibert, the suspect’s first, unwarned interrogation left “little, if anything, of incriminating potential left unsaid,” making it “unnatural” not to “repeat at the second stage what had been said before.” 542 U. S., at 616–617 (plurality opinion). But in this case Dixon steadfastly maintained during his first,unwarned interrogation that he had “[n]othing whatsoever” to do with Hammer’s disappearance. App. to Pet. for Cert. 186a. Thus, unlike in Seibert, there is no concern here that police gave Dixon Miranda warnings and then led him to repeat an earlier murder confession, because there was no earlier confession to repeat. Indeed, Dixon contradicted his prior unwarned statements when he confessed to Hammer’s murder. Nor is there any evidence that police used Dixon’s earlier admission to forgery to induce him to waive his right to silence later: Dixon declared his desire to tell police what happened to Hammer before the second interrogation session even began. As the Ohio Supreme Court reasonably concluded, there was simply “no nexus” between Dixon’s unwarned admission to forgery and his later, warned confession to murder. 101 Ohio St. 3d, at 333, 805 N. E. 2d, at 1051.

(The Court also stresses a “significant break in time and dramatic change in circumstances,” namely: lapse of four hours between unwarned interrogation and receipt of rights; Dixon’s transport back to jail before interrogation resumed; Dixon’s claim to have spoken with lawyer; Dixon’s having learned that police were talking with his accomplice.)

State v. Jeffrey T. Turner, 2011AP413-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Turner: Cody Wagner; case activity

The trial court erred in failing to make a sua sponte inquiry into necessity for shackling Turner during his jury trial. Although the court of appeals recently held that a trial court has no such duty to inquire, where the restraints are hidden from view, State v. Miller, 2011 WI App 34, ¶11, 331 Wis. 2d 732, 797 N.W.2d 528. However, that case is distinguishable: “Turner’s restraints were chains attached to his ankles and wrists.  Turner’s restraints were easily visible.  Accordingly, Miller is not applicable,” ¶11. Turner nonetheless suffered no prejudice, given judge’s effort to make sure restraint weren’t visible and lack of evidence any jurors actually saw the restraints, ¶¶7-12. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995) (failure to establish on record reasons for restraints erroneous but not prejudicial because judge took affirmative steps to make sure they weren’t visible to jury) and Flowers v. State, 43 Wis. 2d 352, 168 N.W.2d 843 (1969) (defendant must show that restraints prejudiced him), followed.

The court separately rejects Turner’s similar argument with respect to the presence of guards behind him while he testified:

¶14      Turner has presented no evidence that he ever made an objection to the guards’ presence behind him during his testimony at trial.  In fact, it was the State who raised the issue of the necessity of guards at trial.  Further, the record provides no information relating to the proximity of the guards to Turner during his testimony or their demeanor, and Turner has made only conclusory allegations that their presence was prejudicial to him.  Because Turner has not developed his argument nor provided evidence necessary to establish the facts required to determine whether the circuit court erred, we refuse to exercise our discretion in reviewing this issue at this time.  See Flowers, 43 Wis. 2d at 363.