On Point

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here, a DNA sample may only be collected by a search warrant supported by probable cause.  See State v. Banks, 2010 WI App 107, ¶18, 328 Wis. 2d 766, 778–779, 790 N.W.2d 526, 532.^[3]  Ward refused to give his consent, and the State does not argue that exigent circumstances excused the warrant requirement.  As Ward argues, however, and as the State concedes, a search warrant must be supported by “oath or affirmation”; if not, the warrant is void.  See State v. Tye, 2001 WI 124, ¶13, 248 Wis. 2d 530, 538, 636 N.W.2d 473, 477.  The court commissioner here merely acceded to the State’s request, and directed Ward to give a DNA sample without first requiring supporting evidence be under oath.  Thus, the court commissioner’s July, 2005, order was invalid, and Ward’s DNA sample taken under that order could have been suppressed.  See Segura v. United States, 468 U.S. 796, 804 (1984) (“Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion.”).

But not so fast. Trial counsel failed to move for suppression, so Ward must show both deficient performance and prejudice as part of an IAC claim – had counsel sought suppression, the State simply would have produced an affidavit establishing probable cause for the warrant. (Ward’s fingerprints were found in the victim’s house, thus linking him to the crime.) “Accordingly, Ward has not shown prejudice under Strickland or that his trial lawyer was constitutionally deficient because a lawyer need not do things that accomplish nothing,” ¶11. No harm, no foul.

The court reserves for another day whether recent legislation abrogates the requirement for a warrant, fn 3: “Effective May 22, 2010, a formal search warrant may not be necessary, an issue we need not decide, if the person from whom a DNA sample is taken meets certain criteria.  See Wis. Stat. § 165.76 (2009–2010); 2009 Wis. Act 261.”

Right to Present Defense 

Ward wasn’t denied his right to present a defense to the charge he sexually assaulted Enesha D. A DNA profile, kept by the State Crime Lab under Ward’s name, didn’t match DNA left by the assailant. However, evidence at a pretrial hearing indicated that the non-match was caused by the Crime Lab having misfiled Ward’s sample. Further testing resulted in a match. Ward wasn’t entitled to have the jury hear about the non-match, because it wasn’t material to whether he assaulted Enesha D. Nor, due to lack of materiality, was he entitled to have the jury hear about a different sexual assault victim (Dorothy S.) who said he wasn’t her assailant. In that case, similarly, the Lab initially ruled out Ward as the donor of DNA found at the scene, but later determined his profile to be a match.

¶16      Every defendant in a criminal case has the right under the Sixth Amendment to present his or her defense. Washington v. Texas, 388 U.S. 14, 18–19 (1967).  The evidence the defendant seeks to introduce, however, must be “both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). This is where Ward’s contention breaks down:  simply put, Dorothy S.’s inability to identify Ward as her attacker despite the presence of his DNA is not “material” to the issue before Ward’s jury—whether Ward assaulted Enesha D.  Stated another way, Dorothy S.’s inability to identify Ward does not make it less likely that Ward assaulted Ms. D. because it has no bearing on whether Ward left his DNA on Ms. D.’s leg.[6] See Wis. Stat. Rule 904.01 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). By the same token, the initial non-match of the DNA recovered from Ms. D.’s leg with the DNA profile that the convicted-felon data bank mistakenly listed for Ward also does not make more or less probable that the ultimate match, which, significantly, Ward does not challenge, was correct.  The trial court did not err in preventing Ward from confusing the jury with evidence that was simply not material to whether he was guilty or not guilty of raping Ms. D.  See Wis. Stat. Rule 904.03 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).  Here, of course, as noted, the evidence excluded by the trial court was not relevant as that term is used by Wis. Stat. Rule 904.01, so, technically, the balancing required by Rule 904.03 does not even apply.

Of possible note: the pre-trial evidentiary hearing established that the Lab’s DNA data-bank doesn’t treat samples obtained from convicted felons with the same case as samples recovered from crime scenes. That is, the former aren’t considered “evidence samples,” and therefore less attention is devoted to chain of custody, ¶5. Inferentially, one supposes, this casualness also explains how Ward’s sample came to be misfiled. In any event, “when we get a hit, a match between an offender’s profile and evidence sample, we then ask for a standard sample that was taken from that person [the suspect whose DNA matched the DNA in the data bank] and treated as evidence and submitted to us to make sure there was no glitch in the data bank,” id.

State v. Jeffrey S. Firebaugh, 2011 WI App 154 (recommended for publication); pro se; case activity

Because the Wisconsin Sentencing Commission had created no guideline “applicable” to Firebaugh’s offense (homicide by intoxicated use of a motor vehicle), he isn’t entitled to resentencing on the basis of failure to “consider” a (non-existent) guideline.

¶12      At the time of Firebaugh’s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.  The offenses for which guidelines were developed included first- and second-degree sexual assault, first- and second-degree child sexual assault, burglary, theft, robbery, armed robbery, forgery and uttering, delivery or possession with intent to deliver cocaine, and delivery or possession with intent to deliver marijuana.  Compare Final Rep., supra, at 114, with Sentencing in Wisconsin, supra. We believe the State’s brief best sums up our conclusion:

In short, Firebaugh’s motion and appeal misfire because Firebaugh seeks an impossible remedy:  consideration of sentencing guidelines that did not exist at the time of his sentencing and that have not existed at any time since his sentencing.

Sentencing courts briefly were required to nod toward applicable guidelines under § 973.017(2), State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, at least  until that statute was repealed, State v. Barfell, 2010 WI App 61, ¶9, 324 Wis. 2d 374, 782 N.W.2d 437: “Without sentencing guidelines, now it is impossible to order Barfell resentenced and to have the sentencing guidelines considered. Nothing we order can have any practical legal effect. Therefore, the issue is moot.” If statutory repeal renders moot the failure to consider an applicable guideline, because there would be no guideline to consider on re-sentencing, then it surely bars relief for failure to consider a guideline that never existed in the first place, let alone on re-sentencing. For that matter, Grady explicitly made its holding prospective, 2007 WI 81, ¶45 (“this decision will become effective for any sentencing occurring after September 1, 2007”) – highly relevant here, because Firebaugh’s 2004 sentencing pre-dated Grady, thus dooming his argument for that reason as well. (The court here acknowledges, but simply ignores, Grady‘s prospective nature, ¶6 n. 3.) In brief, Firebaugh sought to invoke a case holding that plainly didn’t apply to him, in an effort to obtain relief that equally plainly wouldn’t be available to him anyway. It simply isn’t clear why the State and the court ignore these seemingly insuperable obstacles. (Put aside the very basis for what is in effect a collateral attack on the sentence – is it premised on a § 974.06 constitutional or jurisdictional defect? a common law new factor?) Nor, for that matter is it apparent why the State urged (Brief, p. 2), or the court now recommends, publication. Is it really necessary that one more nail be hammered in the long-buried guideline coffin? For that matter, as Michael O’Hear argues persuasively, Grady itself was all but inanimate at birth anyway, “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences,” 93 Marq. L. Rev. 751, 773-76. The court’s determination to flog a doctrine that has no prospect of viability in the first place is curious.

State v. Wilson J. Behling, 2011AP483-CR, District 3, 10/18/11

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

Probable cause that Behling’s backpack contained contraband supported its seizure so that a warrant could be obtained and the item searched:

¶28      We conclude Hoffman had probable cause to believe Behling’s backpack contained contraband or evidence of a crime.  Here, Hoffman’s seizure was based on the following facts: (1) Behling entered a county park where drug activity has occurred; (2) Behling drove next to another motorcycle for a short distance; (3) both motorcycles drove down to a secluded spot on the river; (4) Hoffman’s training and experience as a drug investigator provided him with the knowledge that covert drug transactions occur in secluded locations; (5) Hoffman observed Behling and Verhein talking; (6) Behling put his backpack down away from himself before approaching Hoffman; (7) Hoffman’s training and experience provided him with the knowledge that an individual who has contraband usually attempts to distance himself from the contraband; (8) Behling appeared nervous; (9) Behling consented to a search of his backpack but subsequently revoked his consent when Hoffman wanted to look in a specific pocket; and (10) Behling fumbled with his backpack.

A typically fact-specific search-and-seizure case. Still, one might wonder whether refusal to (more concretely, rescission of) consent to search is a permissible variable in the probable cause variable. You have the right not to consent to search … but exercising that right suggests your guilt. Doesn’t quite seem right. Nonetheless, the existence of plenty of other factors makes this one a mere curiosity.

State v. Michael A. Clements, 2010AP1978-CR, District 4, 10/13/11

court of appeals decision (not recommended for publication); for Clements: Steven D. Grunder, SPD, Madison Appellate; case activity

Counsel’s performance not deficient, against claims that he failed to: impeach the complainant with a prior recorded statement; object on hearsay grounds to admissibility of her statement to a school counselor; object to the State’s closing-argument characterization of the sole defense witness; present a consistent theory of defense.

General test for reviewing IAC claims recited, ¶¶13-15, otherwise there’s not much of note in this highly fact-specific result.

State v. Joshua P. O’Keefe, 2010AP2898-CR, District 4, 10/13/11

court of appeals decision (1-judge, not for publication); for O’Keefe: Steven D. Grunder, SPD, Madison Appellate; case activity

¶7        O’Keefe contends that the circuit court erred in admitting the testimony of Bannach and Wanta in which they read to the jury the “Diagnosis” portion of the medical reports because O’Keefe was not afforded an opportunity to cross-examine the doctors who prepared the reports, and was thus denied his right to confrontation.  He concedes, however, that he did not raise this objection at trial.  Nor, in fact, did he raise any objection to that evidence, other than a hearsay objection to Bannach’s testimony, which the court sustained because the report was not yet in evidence.  The failure to object to the admissibility of evidence constitutes a forfeiture of the right on appellate review.  State v. Edwards, 2002 WI App 66, ¶9, 251 Wis. 2d 651, 642 N.W.2d 537.  O’Keefe does not argue that the admission of this evidence was plain error, an exception to the forfeiture rule.  See Wis. Stat. § 901.03(4).  He has thus forfeited his right to claim on appeal that the evidence was erroneously admitted.

The court separately holds that O’Keefe forfeits on appeal an ineffective-assistance argument – failure to object to the State’s closing argument mischaracterization of the law of self-defense – because, according to the court, his claim of prejudice is merely conclusory, ¶¶19-22 (“Without facts to support it, a conclusory allegation fails to demonstrate that a defendant was prejudiced by counsel’s deficiency.”). O’Keefe’s brief argues at some length (pp. 23-27) just how the challenged misstatement undermined the defense. Nor did the State assert forfeiture; to the contrary, the State’s brief conceded a closing argument misstatement (p. 9), arguing that its impact was minimal. The court reliance on forfeiture of the IAC argument thus puzzles.

Any error in admission into evidence testimony about O’Keefe’s character would be harmless, citing Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698:

¶14      If an appellate court determines that the circuit court erroneously exercised its discretion, a new trial is not necessarily the result.  Id., ¶30.  Before a new trial may be ordered, an appellate court must “conduct a harmless error analysis to determine whether the error ‘affected the substantial rights of the party.’  If the error did not affect the substantial rights of the party, the error is considered harmless.”  Id. (quoted source omitted).

¶15      “For an error ‘to affect the substantial rights’ of a party, there must be a reasonable probability that the error contributed to the outcome of the action or proceeding at issue.”  Id., ¶32 (quoted source omitted).  A reasonable probability of a different outcome is a possibility sufficient to undermine confidence in the outcome.  Id.  An appellate court’s confidence in the outcome is not undermined where the erroneously admitted evidence was peripheral or the outcome was supported by evidence untainted by error.  See id.

¶16      Here, there was more than enough other substantial evidence for the  jury to have reached the verdict it did.

A recitation of the test that is ungenerous to the point of inaccuracy. For an error to be harmless, a court must be able to conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,  State v. Gordon, 2003 WI 69, ¶36, 262 Wis. 2d 380, 663 N.W.2d 765 (citation omitted).  More: the burden of establishing harmless error is on the State as beneficiary of the error.  See State v. Anderson, 2006 WI 77, ¶27, 291 Wis. 2d 673, 717 N.W.2d 74.

State v. Joel D. Rhodes, 2011 WI App 145; for Rhodes: Chris L. Hartley; case activity

Self-Representation – Adequacy of Waiver of Right to Counsel 

The trial court undertook a valid waiver of counsel, pursuant to State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997):

¶18      We reject Rhodes’s claim.  The circuit court conducted a colloquy with Rhodes that the State aptly describes as exemplary.  During that colloquy, Rhodes assured the circuit court that he understood that he had a right to a lawyer, and that he nonetheless wished to represent himself.  He told the circuit court that he was thirty-one years old, that he had never been treated for a mental illness, that he had a tenth-grade education, and that he could read and write.  He demonstrated his understanding of the roles of a judge and a jury.  He said that he had previously participated in two felony trials, that he had read case law and statutes, and that he had read the discovery provided by the State in this case.  He acknowledged that an attorney might be better able than he to identify defenses and develop them at trial.  He explained, however, that he had conferred with family members, acquaintances, and three attorneys about waiving his right to counsel, and he confirmed that “[t]his is not a rash decision.”  Rhodes stated that he had not been threatened or promised anything to induce him to give up his right to a lawyer and that he made the decision of his own free will.

More details: ¶¶19-25, especially with respect to Rhodes’ having expressed interest in retaining a particular attorney (Peter Kovac), who was present but told the court he hadn’t been retained, ¶21. Rhodes’ argument on appeal (brief, p. 19) is that because he was “in the process of” retaining Kovac, his waiver of counsel couldn’t have been valid. The court of appeals rejects the argument: the trial court had, going into the waiver hearing, already given Rhodes “ample opportunity to consider and reconsider how he wished to proceed”; thus, “further inquiry about his discussions with Attorney Kovac” weren’t necessary, ¶24. Moreover, retaining Kovac wasn’t “a viable option,” given that Kovac affirmed he would not be prepared for trial on the agreed-upon date, ¶25.

Reinstatement of Right to Counsel 

The trial court properly exercised discretion in denying Rhodes’ request to reinstate his right to counsel, which Rhodes in effect made on the first day of trial, by for an adjournment so that Kovac could represent him :

¶35      The circuit court did not, however, base its decision solely on administrative concerns engendered by the timing of Rhodes’s efforts to reinstate the right to counsel.  Rather, the court also considered the specifics of Rhodes’s request.  We note that a circuit court generally must conduct an inquiry when a defendant requests substitution of counsel and must determine the basis for the request.  See State v. McDowell, 2004 WI 70, ¶71, 272 Wis. 2d 488, 681 N.W.2d 500.  Similarly, the Leveto court observed that a defendant’s request for reinstatement of counsel should normally trigger an inquiry to ensure the integrity of the trial proceedings and enable appellate review.  See id., 540 F.3d at 209.  Both McDowell and Leveto reflect that the scope of the inquiry depends on the state of the record.  See McDowell, 272 Wis. 2d 488, ¶71; Leveto, 540 F.3d at 209.  Moreover, the court’s knowledge of the totality of the circumstances is relevant in assessing the sufficiency of the inquiry.  See Leveto, 540 F.3d at 209.

…

¶40      The record amply supports the circuit court’s finding that Rhodes was engaged in gamesmanship over his representation.  Rhodes waived his right to counsel on April 6, 2007, stating that he was prepared for trial and could proceed on the scheduled trial date of May 7, 2011.  Nonetheless, as that deadline closed in, he told the circuit court that he wanted:  (1) Attorney Kovac to represent him; (2) to represent himself with Attorney Kovac serving as stand-by counsel; and (3) no lawyer, just a computer.  The circuit court was incapable of satisfying all of Rhodes’s mutually exclusive requests.  A defendant cannot rely on the right to counsel as a mechanism for imposing impossible duties on the circuit court.  See State v. Woods, 144 Wis. 2d 710, 714, 424 N.W.2d 730 (Ct. App. 1988).  Moreover, a litigant may not abuse the right to counsel “by repeatedly altering his position on counsel to achieve delay or obstruct the orderly administration of justice.”  United States v. Pollani, 146 F.3d 269, 273 (5th Cir. 1998).

United States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008), cited with approval for principle “that a defendant’s request to withdraw from self-representation and proceed with the assistance of counsel rests in the circuit court’s discretion,” ¶27. The court also cites Leveto approvingly for the idea that rescission of waiver may not be based on rigid insistence on keeping a calendar notwithstanding justifiable request for delay, ¶43. However, in this instance, discretion was properly exercised on the basis that Rhodes was trying to insert a concededly unprepared attorney into the case, id.

Rhodes’ separate argument that jail personnel prevented Kovac from meeting with him the weekend before trial began (thus interfering with his right to counsel, Geders v. United States, 425 U.S. 80 (1976)) rejected, as insufficiently briefed, ¶¶47-50.

court of appeals decision (recommended for publication); for Little: Jeffrey W. Jensen; case activity

Probable Cause to Arrest 

¶14      In Stewart’s case, the pertinent facts are:

•           On March 10, 2009, a reliable confidential informant told Agent Gray that one of the people who had been arrested with Alderman McGee was going to be bringing cocaine to Milwaukee.  After Gray obtained the names and photographs of individuals who had been arrested in Alderman McGee’s case and showed them to the informant, the informant identified Stewart.

•           The informant told Gray that Stewart would be arriving at Mitchell Airport at about 11:30 p.m. on a flight from Las Vegas and that the flight was running a little late.

•           Agent Gray verified that there was in fact a flight from Las Vegas scheduled to arrive at Mitchell Airport at 11:30 p.m. that night, and also confirmed that Stewart was on the flight.

•           Around midnight, Agent Gray saw Stewart in the terminal area taking the escalator down to the baggage claim.  Shortly thereafter, Stewart emerged carrying a small white plastic bag, which according Gray—who had extensive experience in drug arrests—could have held thirteen and a half ounces of cocaine.

•           As police approached Stewart, he made a “furtive movement,” tossed the bag into the trunk, and then took a step away from the trunk.

¶15      In light of the foregoing facts, we conclude that police had probable cause to arrest Stewart. …

State v. Romero, 2009 WI 32, 317 Wis. 2d 12, 765 N.W.2d 756, “which held that information from a person unknown to police, when relayed via a confidential informant, can form the basis for the probable cause required to obtain a search warrant, controls the instant case,” ¶16. The court also stresses that the police corroborated at least some of the information from the unknown individual (Stewart arrived on the flight indicated by the person), and the person made statements against penal interest, ¶19. The point of contention on appeal seems to be whether the Romero (search warrant) analysis applies to warrantless arrest, and the court says, “the issue is the same – whether there was probable cause,” ¶21.

Automobile Search 

Search of a car trunk, into which Stewart threw a bag with suspected cocaine, immediately before his arrest, could be accomplished without a warrant, as incident to that arrest.

¶25      We conclude that, under the particular circumstances of this case, the search of the trunk was reasonable because police did have reason to believe that cocaine was inside.  See Gant, 129 S. Ct. at 1719; Dearborn, 327 Wis. 2d 252, ¶27.  As noted above, Stewart arrived at Mitchell Airport via a flight from Las Vegas, just as Agent Gray’s confidential informant said he would.  Further corroborating the informant’s information, Stewart exited the airport carrying a white plastic bag that, according to Gray’s experience, could have held thirteen and a half ounces of cocaine.  Additionally, when approached by police, Stewart tossed the bag into the trunk.  Given that police actually saw him throw the bag into the trunk, and given that Stewart’s movements corroborated the informant’s information so precisely, they had every reason to believe that cocaine would be in the trunk.

¶26      While Stewart analogizes his case to United States v. Most, 876 F.2d 191, 192-93 (D.C. Cir. 1989), in which police searched a gym bag that the defendant had checked at the front of a store without a warrant, that case is inapposite because prior to searching the bag, police never had probable cause to believe that the defendant had committed a crime, see id. at 196.  Moreover, we note that Most is a federal case from the D.C. Circuit, and is therefore not binding on this court.  See State v. Muckerheide, 2007 WI 5, ¶37, 298 Wis. 2d 553, 725 N.W.2d 930.  Stewart’s case is instead much more akin to Smiter, in which a police search of a car following a drug arrest was lawful under the Fourth Amendment.  See id., 331 Wis. 2d 431, ¶¶3-4, 8, 18 (finding probable cause to search vehicle after police recovered marijuana blunt thrown from vehicle’s front window and placed occupant under arrest).