On Point

State v. Malcolm L., 2011AP714, District 2, 10/12/11

court of appeals decision (1-judge, not for publication); for Malcolm L.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Juvenile courts have authority to stay sex offender registration, § 938.34(16), and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1. Here, the trial court erroneously failed to exercise discretion on Malcolm’s request for such a stay. Malcolm’s renewal of the issue via § 809.30(2)(h) postdisposition motion was denied on the ground that he had by then turned 18 and, according to the circuit court, competency to rule on the motion had therefore been lost. The court of appeals now reverses:

¶8        Next, we address the postdisposition court’s competence. [3]  Whether a trial court has lost competency to proceed is a question of law that we review independently.  Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.  In its decision, the postdisposition court reasoned that it was not competent to act because Malcolm had turned eighteen and his dispositional order expired before his postdisposition hearing.  But the bottom line in this case is that Malcolm timely requested a stay of the sex offender registration condition, thereby preserving the issue[4]—before he turned eighteen and while the entire dispositional order was still in effect.  The trial court either did not make a decision on Malcolm’s motion to stay or it made a decision based on an erroneous application of the law.  Either way, it would not make sense to say that Malcolm cannot appeal an error in part of his order that is still in effect simply because his birthday has passed.  The juvenile court does not lose the power to correct its own errors merely because a juvenile reaches the age of eighteen.

…

¶12      Malcolm should have a determination of whether his registration should be stayed under Wis. Stat. § 938.34(16), and the postdisposition court—as an extension of the trial court—is the one to make it.  See Wis. Stat. Rule 809.30(2)(h)-(i).  We therefore remand and direct the postdisposition court to give Malcolm the opportunity to prove, by clear and convincing evidence, that he should be granted a § 938.34(16) stay of the order requiring him to register as a sex offender.  See Cesar G., 272 Wis. 2d 22, ¶¶50-51.

State v. Kleser, 2010 WI 88, ¶119, 328 Wis. 2d 42, 786 N.W.2d 144 (no authority to conduct reverse waiver hearing after defendant turns 18), distinguished (¶10): “Kleser dealt with the court’s ability to exercise new authority over a juvenile.  What Malcolm requests, in contrast, is a hearing on an order to stay an already existing dispositional order.”

Docket

Decision below: Blueford v. State, 2011 Ark. 8

Question Presented (from cert. pet.):

Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Cert. Petition

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Blueford was tried for capital murder. The jury was given lesser-included options and deadlocked. Deliberation on the lessers was guided by a “transitional” instruction, to the effect that the jury first considers the charged (or greater) offense and if it finds reasonable doubt goes to the next lesser offense in line. When the jury announced it was deadlocked, the foreperson informed the trial court that the jury was unanimously against both capital murder and the next lesser, first-degree murder, but was split on manslaughter and therefore didn’t reach negligent homicide. The court told the jury to deliberate further, but the impasse couldn’t be broken. The court declared mistrial, rejecting Blueford’s request that the jury return verdict forms on those offenses which resulted in unanimous agreement. Does double jeopardy bar retrial on capital or first-degree murder? The lower court held, in brief, that a hung jury isn’t tantamount to an acquittal that would trigger double jeopardy protection. And, although the foreperson suggested that the jury had indeed acquitted on the two offenses, this was merely during a “discussion with the circuit court” and “not a situation where a formal verdict was announced or entered of record.” What about Blueford’s request that the jury return verdicts on the offenses for which agreement had been reached? According to Arkansas supreme court, the majority of lower courts hold that a trial court “may not conduct a partial-verdict inquiry as to” lesser offenses; and, although a minority does assign double jeopardy protection in that setting, Arkansas would follow what it termed the majority view.

Wisconsin also employs a “bridge” instruction that imposes a hierarchical order of deliberation, JI Nos. 112 and 112A (upheld as non-violative of due process or right to jury trial, in Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir.1980)). Wisconsin is thus what might be termed an “acquittal-first” state. True, inability to agree on the greater also allows consideration of the next lesser offense, but even so, return of a guilty verdict on a lesser operates as an “implied acquittal” and thus bars retrial on the greater, should the lesser offense verdict be overturned. Price v. Georgia, 398 U.S. 323 (1970); Brazzel v. Washington, 491 F.3d 976 (9th Cir.2007). That said, “acquittal-first” is a generally adequate but not entirely accurate short-hand descriptor, as Blueford illustrates. Blueford, that is, represents a potentially significant variation on the general theme – what is the effect of failure to return a verdict in the face of lesser-offense options? Absent some indication in the record of unanimity as to not guilty on the greater, neither “implied acquittal” nor “acquittal-first” may operate. Critically, though, there was an explicit statement in the Blueford record as to such unanimity, and his double jeopardy claim may well turn on that crucial detail. What this means for the Wisconsin practitioner remains to be seen, except that for the time being thought must given, where the jury can’t reach agreement in the context of lesser offense options, as to whether to seek a break-down of the votes, as in Blueford.

Yet another variation on the overall theme (but one that might not be affected by the outcome): return of verdicts of guilty on both greater and lesser offenses leaves conviction on greater offense undisturbed, State v. Cox, 2007 WI App 38, 300 Wis. 2d 236, 730 N.W.2d 452;  State v. Hughes, 2001 WI App 239, 248 Wis.2d 133, 635 N.W.2d 661.

State v. Thomas C. Niesen, 2010AP1864-CR, District 2, 10/5/11

court of appeals decision (not recommended for publication); for Niesen: James A. Rebholz; case activity

Evidence held sufficient to sustain conviction § 940.01(1), court rejecting argument that State failed to prove that Niesen inflicted the fatal knife wound. (Niesen made certain damaging admissions; he met the description of the man last seen with the victim; his sperm was found in the ¶¶2-21.

Admission into evidence of the knife Niesen was carrying at his arrest, some 23 years after the homicide (1976), was admissible:

¶23      First, Niesen claims the trial court erred in admitting into evidence and publishing to the jury the knife which Niesen owned at the time of his arrest in 2009.  We disagree.  At trial, the State introduced the unobjected-to testimony of Shuck that in 1976 Niesen carried, at different times, a couple different types of knives and sometimes would carry one to the bars they frequented.  The State further introduced the unobjected-to testimony of Crull that Niesen was in the habit of carrying a knife around with him in 1985-86, including at clubs.  Crull testified that the knife provided in 2009 looked similar to the knife she saw Niesen carry in 1985-86.  The evidence was relevant to prove that Niesen was known to carry a knife at the time of the murder and known to always carry one ten years later when he was with Crull.  See Wis. Stat. § 904.06(1) (“evidence of the habit of a person … whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person … on a particular occasion was in conformity with the habit or routine practice”).

State v. Timothy J. K., 2011AP1091, District 2, 10/5/11

court of appeals decision (1-judge, not for publication); for Timothy J.K.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

The trial court’s requirement of sex offender registration, § 301.45(1m)(d)(1), is upheld against an argument that the court misconstrued an expert’s recommendation of no registration.

¶9        Timothy fails to clear the first hurdle of the Tiepelman standard.  The circuit court’s decision to require Timothy to register as a sex offender was not based on any mistaken information.  Lodl clearly stated “I would recommend that Timothy not be required to register as a sex offender.”  The circuit court did not misread Lodl’s recommendation; rather, it concluded that Lodl’s recommendation was not strong enough.  Indeed, Lodl’s original assessment did not include a recommendation as to whether Timothy should have to register as a sex offender.  Lodl originally wrote that “[t]here are presently no empirically validated actuarial instruments that can be used to accurately estimate the risk of adolescent sexual reoffending.”  It was only after the State wrote a letter to the court requesting Lodl’s opinion that Lodl came out against registration.  Furthermore, Lodl characterized Timothy’s estimated risk of reoffending as “low,” not nonexistent.  Lodl also wrote that Timothy should be reevaluated again in at most two years to determine if his risk of reoffending had changed.  Finally, the circuit court noted the therapist’s recommendation that Timothy register as a sex offender, indicating that the court did not rely exclusively on Lodl’s report in reaching its conclusion.

State v. Cindy R. Billips, 2009AP2493-CR, District 2, 10/5/11

court of appeals decision (1-judge, not for publication); for Billips: Timothy R. Muth, Amy Lynn MacArdy; case activity

Following OWI arrest supported by probable cause, the officer was authorized to search the vehicle for evidence relevant to the OWI arrest:

¶9        Here, it was reasonable for Kinservik to believe that further evidence related to Billips’ OWI arrest might be found in the vehicle.  We agree with the State that this would include alcohol or any other substance that would contribute to the impairment of the driver.[3]  At the time of the search, Kinservik had yet to remove the plastic bag with liquid on top of it.  Further, when he entered the vehicle, Kinservik testified:  “I found what I know to be an end of a marijuana cigar, a blunt, that was in plain view when I entered the vehicle.”[4]  This additional discovery further supports the reasonableness of the search of Billips’ vehicle, including the purse in the back seat.  See Gant, 129 S. Ct. at 1719 (citing New York v. Belton, 453 U.S. 454 (1981) and Thornton v. United States, 541 U.S. 615 (2004), in which the defendants were arrested for drug offenses, as cases in which “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein”).  Under Gant, Kinservik could lawfully search both the vehicle and the purse for further evidence related to OWI.[5]

Moreover, because the search antedated Gant (by several weeks; timing is everything), the search was separately justified as good-faith reliance on Belton, ¶¶10-11. See, State v. Dearborn, 2010 WI 84. Apparently, then, the first rationale, quoted above, relates to a probable-cause based search of the car, as distinct from a Belton-type search-incident rationale. See, California v. Acevedo, 500 U.S. 565, 580 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”).

State v. Anastasia S., 2011AP1423 / State v. Lemar T., 2011AP1403, District 1, 10/4/11

court of appeals decision (1-judge, not for publication); for Anastasia S.: Kevin M. Long, Brandon Gutschow; case activity; for Lemar T.: Jane S. Earle; case activity

¶18      “Grounds for termination [of parental rights] must be proven by clear and convincing evidence.”  Ann M.M. v. Rob S., 176 Wis. 2d 673, 682, 500 N.W.2d 649 (1993).  According to Wis. Stat. § 48.415(2)(a)2., the Bureau must make a “reasonable effort” to provide the services ordered by the court.  “‘[R]easonable effort’ means an earnest and conscientious effort to take good faith steps to provide the services ordered by the court which takes into consideration the characteristics of the parent or child[,] … the level of cooperation of the parent[,] … and other relevant circumstances of the case.”  Id. 

…

¶23      A relevant consideration in determining “‘reasonable effort’” to provide services is the parents’ “level of cooperation.”  Wis. Stat.§ 48.415(2)(a)2.a.  Lemar T.’s transient lifestyle, his inability to finish any classes, and his persistent drug use reflected a low level of cooperation which, in turn, hampered the Bureau’s ability to help him meet the conditions for the return of Ariel T. Given the overall picture, the trial court easily and properly concluded that the Bureau had made reasonable efforts to provide Lemar T. with the court ordered services.

¶24      The conduct of Anastasia S. during the pendency of these proceedings was significantly different than that of Lemar T.  Anastasia S. was motivated and cooperative in her desire to be reunited with her daughter.  She completed all the classes that she was sent to and had regular supervised visitations with Ariel T.  While the testimony reflected Anastasia S.’s desire to be reunited with her daughter, most of the people who witnessed Anastasia S.’s interaction with Ariel T.  felt that Anastasia S. was incapable of parenting Ariel T. by herself.  Anastasia S. worked hard at reuniting with her daughter, but she simply does not have the capacity to parent a child. …

¶25      …  Neither Lemar T. or Anastasia S. attended a life skills education course, but comparable services were provided in other ordered programs.  Thus, the finding that the Bureau did make reasonable efforts to provide the services ordered by the court is not clearly erroneous.  Despite the many programs, classes and aides given to Anastasia S., Anastasia S., through no fault of her own, was simply unable to independently parent Ariel T.  On the other hand, Lemar T.’s lack of cooperation led the trial court to find him unfit.  Given the trial court’s findings, the trial court properly exercised its discretion in finding that Ariel T.’s best interest lie with adoption.

State v. Rodney D. Johnson, 2010AP2470-CR, District 1, 10/4/11

court of appeals decision (not recommended for publication); for Johnson: Richard L. Kaiser; case activity

Acting on a drug tip, police targeted Johnson, and saw him driving a car with a cracked windshield. After Johnson got out of the car, the officers approached, and “asked” to talk to him, but he walked away. The officers then “asked” him to take his hands out of his pocket, at which point he tossed baggies to the ground. You can guess the rest. The court upholds seizure of the drugs, for multiple reasons:

¶7        When Johnson got out of the car with his hands in his pocket, the officers prudently and lawfully asked him to take them out.  First, they had a right to try to talk to Johnson about the cracked windshield and the drug information ….

¶8        Second, the officers suspected Johnson of drug crimes, and drugs and guns “‘go hand in hand.’”  See State v. Guy, 172 Wis. 2d 86, 96, 492 N.W.2d 311, 315 (1992) (“‘drug dealers and weapons go hand in hand’”) (quoted source omitted).

¶9        Third, police officers risk death or serious injury when they approach someone irrespective of that person’s connection with illegal drugs. … The officers thus had the right to see Johnson’s hands so they would not be surprised if he pulled out a weapon. … When Johnson pulled his hands out of his pocket in response to the officer’s lawful command, he thus had not yet been “stopped” or “seized.”  When he discarded the four baggies, he abandoned them, and officers may lawfully seize abandoned property.  See Molina v. State, 53 Wis. 2d 662, 668–669, 193 N.W.2d 874, 877–878 (1972).  The trial court did not err in denying the motion to suppress. Accordingly, we affirm.

The first and second reasons appear to be make-weight. If the police had reasonable suspicion to seize Johnson, then “asking” him to display his hands was merely part and parcel of that seizure. In other words, if the police had reasonable suspicion to seize Johnson, then the analysis shouldn’t need to go beyond ¶7. And if they didn’t have reasonable suspicion, then the concerns marshaled by the court, however valid, become irrelevant, because they can’t be used to bootstrap otherwise unsupportable coercive police conduct. Did the police have reasonable suspicion? Presumably not; the court doesn’t say one way or the other, but surely would have had it thought so. The court’s failure to draw this conclusion leaves the analysis in ¶9 decisive by default: undoubtedly, if Johnson hadn’t been seized when he threw the baggies to the ground, he abandoned them. But the court simply doesn’t say why no seizure had occurred to that point, leaving that critical premise in some doubt. On this point, see, e.g., Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006) (“Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.”);  People v. Wilson, 201 AD2d 399 (1st Dept 1994) (“defendant’s actions in dropping a bag containing contraband as he took his hands out of his pockets as directed, was not a calculated, voluntary abandonment, but a spontaneous reaction to improper police action) and People v. Pinckney, 2011 NY Slip Op 51649 (9/9/11) (same). Now, it may be that the court thought this a matter of request, rather than order, that Johnson take his hands out of his pocket, which would make the encounter consensual and his act of tossing the baggies one of free will – that is essentially what the State argued on appeal. And, at least rhetorically, it might be seen as a mere request: “Can you stop, please?  Police.  Can you take your hands out of your pocket?” But it isn’t necessary to puzzle out whether a reasonable person have felt free to disregard this “request” because the court of appeals does not itself see this as a mere request: “The officers thus had the right to see Johnson’s hands so they would not be surprised if he pulled out a weapon. … Johnson pulled his hands out of his pocket in response to the officer’s lawful command ….” (Emph. supplied.) The idea that a police command doesn’t establish a police seizure is deeply problematic – especially given that Johnson complied with the command; in other words, he submitted to a show of authority and at that moment therefore had been “seized” by the police. What, though, about tossing the baggies? Is that an abandonment of the property? Not if the act was in response to unlawful police conduct, State v. Hart, 2001 WI App 283, ¶¶24-25, 249 Wis.2d 329, 639 N.W.2d 213 (Hart reached into his pocket and threw a pipe on the ground during unlawful frisk; no abandonment, because it was done in response to the frisk: “We conclude that Hart acted in response to the illegal pat-down. … Therefore, the district attorney’s abandonment theory cannot stand under these facts.”).