On Point

State v. Dennis D. Lemoine, 2010AP2597-CR, District 4, 9/15/11

court of appeals decision (not recommended for publication); for Lemoine: Donna L. Hintze, Katie R. York, SPD, Madison Appellate; case activity; supreme court review granted, 1/25/12

¶18      We agree with the trial court that the balance of the defendant’s personal characteristics against the tactics used by the police renders this is a “close case.”  However, we need not address the merits of Lemoine’s voluntariness claim.  Assuming without deciding that the challenged incriminating statements were made involuntarily, we nonetheless conclude that the trial court’s erroneous admission of these statements was harmless beyond a reasonable doubt based on our review of the untainted evidence.[5]

The harmless error result is fact-driven, therefore of little import. The case for coercion was “close” because, in large measure, the police promised Lemoine that he wouldn’t go to jail that night if he gave a “true story.” See Lemoine’s Brief-in-Chief (pp. 13-14) for string-cited cases from other jurisdictions re: “the inherent unreliability of such police … promises to not arrest or take the defendant to jail.”

State v. James T. Kettner, 2011 WI App 142 (recommended for publication); for Kettner: Andrew R. Hinkel, Jefren E. Olsen, SPD, Madison Appellate; case activity

Hearing-Impaired Juror – Inability to Hear Certain Testimony 

A juror’s inability to hear most of alleged victim S.K.’s answers in a videotaped interview didn’t violate Kettner’s rights to impartial jury or due process, given that S.K. also testified in person consistent with her videotaped answers. State v. Turner, 186 Wis. 2d 277, 521 N.W.2d 148 (Ct. App. 1994) (defendant has right not to be tried by juror unable to comprehend testimony; if juror missed material testimony, prejudice presumed), distinguished; instead, analogy drawn to “sleeping juror” analysis as found in State v. Hampton, 201 Wis. 2d 662, 549 N.W.2d 756 (Ct. App. 1996) (Hampton I), and State v. Hampton, 217 Wis. 2d 614, 579 N.W.2d 260 (Ct. App. 1998) (Hampton II).

The court explains the presumption of prejudice in Turner as having been based on absence of trial court findings about what testimony the juror couldn’t hear, ¶17. Here, by contrast, the trial court made detailed findings, allowing the court “to assess the significance of what the juror did not hear in light of the testimony the juror did hear,” ¶21 (namely, the juror “was able to hear substantially all of the trial testimony,” etc., but “missed most of” S.K.’s video testimony, ¶9). The court then applies a Hampton analysis to those facts:

¶27      Hampton I and Hampton II are instructive because, although they concern a sleeping juror, not a hearing-impaired juror, the fundamental inquiry is the same: are the defendant’s constitutional rights to an impartial jury and due process violated when a juror does not hear particular testimony?  Reading Hampton I and Hampton II together with Turner, we conclude that, when it is feasible to determine what testimony the juror did not hear, the proper inquiry is whether, given the length of time the juror did not hear testimony and the significance of the testimony not heard in the context of the trial as a whole, the defendant was prejudiced to the extent he or she did not receive a fair trial—that is, a trial comporting with the constitutional guarantees of an impartial jury and due process.[8]  See Hampton I, 201 Wis. 2d at 673.

…

¶32      … In this case, the juror heard S.K. testify at trial and was able to observe her demeanor then; and she saw S.K.’s demeanor on the videotape, although she was not able to relate it to specific answers.  Moreover, those answers were consistent with the answers S.K. gave at the trial. …

¶33      We also consider it significant that the juror heard “substantially all” of defense counsel’s cross-examination of S.K. at trial.  This cross-examination suggested several different grounds on which to question S.K.’s credibility.

¶34      In summary, … general assertions of materiality or prejudice are not sufficient to establish a violation of the rights to an impartial jury and due process when we are able to see and hear the precise interview the juror saw but did not hear and are able to compare that to the transcript of that witness’s trial testimony, which the juror did hear.  Given the consistency of S.K.’s videotaped answers with those she gave in person at trial and in the absence of any factor identified by Kettner that indicates some specific source of prejudice, we conclude that Kettner’s rights to an impartial jury and due process were not violated.

Haseltine “Vouching” Testimony – Harmless Error 

Kettner challenges a pediatric nurse’s testimony that children “don’t lie to make up a story, and so I find it valid what the child tells me when I’m making an assessment,” as violating the anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not express an opinion about the truthfulness of another witness’s testimony). The court assumes, without deciding, the existence of such a violation, but holds it harmless:

¶45      First, the jury had already heard from the nurse that he relied in part on S.K.’s account of how the bruises occurred in arriving at his opinion on their cause.  The jury heard this once on direct, without objection from defense counsel, and again on cross-examination, when defense counsel elicited the nurse’s acknowledgment that he assumed, in treating all his patients, that the injury occurred as they said it did.[11]  Thus, if we accept Kettner’s premise that the nurse’s partial reliance on S.K.’s account in arriving at his conclusion is the same as vouching for her credibility, the jury had already heard this by the time defense counsel objected.

¶46      Second, although the nurse mentioned S.K.’s account when asked about the bases for his opinion on the cause of the bruises, his own explanation of his reasoning in arriving at this opinion does not include anything S.K. told him about the spanking.  …

¶47      Third, even without the bolstering to S.K.’s credibility that the nurse’s challenged testimony may have provided, there was compelling evidence that the bruises were the result of the spanking from Kettner. …

seventh circuit court of appeals decision, denying habeas relief on review of Wis. COA No. 2008AP1533-CR; prior history: 2001AP713-CR, 1995AP1856-CR

Habeas – Exculpatory Evidence – Available to Defendant

Jardine argues that the State suppressed exculpatory evidence, namely that post-conviction testing of the gun he admittedly possessed but denied using to club the victim didn’t reveal the presence of the victim’s DNA. Suppression of Brady material requires that the undisclosed evidence have been “not otherwise available to a reasonably diligent defendant,” citing Harris v. Kuba, 486 F.3d 1010, 1015 (7th Cir. 2007). Therefore, Jardine’s claim necessarily fails:

… Nothing in Jardine’s petition suggests his defense team was unaware of his own gun’s existence, the state’s possession of it , or the prosecution’s theory of its role in the crime. Nor does Jardine allege that he unsuccessfully requested access to the gun. Thus, Jardine’s Brady claim about his gun never leaves the ground. See Harris, 486 F.3d at 1015 (prosecution did not withhold defendant’s own alibi from him); United States v. Lee, 399 F.3d 864, 865 (7th Cir. 2005) (prosecution did not suppress defendant’s own pants, which contained a gun). ²

Footnote 2 stresses that Jardine doesn’t raise this issue as a matter of ineffective assistance of counsel, and goes on to observe that “declining to request DNA testing can be sound strategy when weaknesses in a defendant ’s story could lead reasonable lawyers to think the client guilty and any test results potentially damning.”

Habeas – Exculpatory Evidence – Materiality  

Jardine, convicted of sexually assaulting and trying to kill a masseuse, argues that the State suppressed exculpatory evidence in the form of evidence that would have shown, contrary to the victim’s claim, that the massage parlor was a place of prostitution and she a prostitute. Although the suppressed evidence tended to support the defense theory of consensual sex, Jardine’s own testimony at trial, during which he admitted shooting the victim but claimed it was accidental, dooms the claim:

But not all suppressed evidence that has some tendency to exculpate or impeach is material under Brady, and relief may be granted only if introducing the evidence would have cast “the whole case in such a different light as to undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 290 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).  …

Here, Jardine’s argument that the evidence of prostitution was material founders on his own testimony. His story places him alone at the scene and raises a very troubling question: How was Grandhagen’s head injured so badly on the night she was shot in the leg, and in a manner that suggested pistol-whipping with the butt of a gun like Jardine’s? …

…

At all events, portraying Grandhagen as promiscuous, or poking holes in her and McKay’s testimony, would not solve Jardine’s biggest problem: Grandhagen’s vicious head wound, acquired on the evening he admittedly had sex with and shot her, and inflicted in a manner consistent with pistol-whipping with the butt of a gun like his.

The court strongly suggests that, “If used to show that Grandhagen herself had sex with other customers, either to bolster Jardine’s testimony that she consented or to impeach her generally, introducing the evidence would violate Wisconsin’s sweeping rape-shield law, WIS. STAT. § 972.11(2).” Highly probative evidence might violate the right to confrontation, but evidence of consensual sexual activity “with other men is archetypally prejudicial and not highly probative of consent in a particular case; precisely that concern underlies rape-shield statutes.” (Not clear whether the court’s observation is dicta, given its holding that the evidence wasn’t material, but it is worrisomely broad if nothing else.)

Habeas – State’s Response to Petition – Certificate of Appealability 

The district court summarily dismissed Jardine’s habeas petition without ordering a return, but nonetheless issued a certificate of appealability, which left the record on appeal “thin.” The court now strongly cautions against that practice (footnote 1):

… [C]ommon sense says that coupling summary dismissal with a certificate of appealability is poor practice. The conclusion that a constitutional claim is debatable among reasonable jurists, as required for a certificate of appealability under 28 U.S.C. § 2253(c), see Slack v. McDaniel, 529 U.S. 473, 484 (2000), sits in obvious tension with the conclusion that the claim “plainly appears” from the petition and attachments to be a loser, as required for summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. All the more so if, as here, the district court premises the certificate on reasonable debate about the import of suppressed evidence in light of all the other evidence.

…

… [W]e respectfully advise district judges who plan on issuing a certificate of appealability to avoid Rule 4 and let the warden respond to the petition with exhibits.

on review of unpublished decision; for Tyler T.: Susan E. Alesia, SPD, Madison Appellate;  case activity

Juvenile Delinquency – Waiver Investigation Hearing

Issue (Composed by On Point): 

Whether, on petition to waive a juvenile into adult court, the State may give ex parte input to a local agency making the waiver recommendation pursuant to the circuit court’s request under § 939.18(2m).

The State filed a waiver petition; the trial court requested a waiver investigation report by the local agency pursuant to § 939.18(2m); the prosecutor appeared at the resultant meeting, but the defense wasn’t invited to, and did not, appear; the prosecutor, having filed the request, recommended waiver (shocking, we know); the agency couldn’t reach consensus and therefore made no recommendation; the trial court waived the juvenile into adult court, overruling the defense argument that the investigation was tainted by the State’s ex parte input. The court of appeals affirmed.

Tyler argued below the following syllogism. Ex parte prosecutorial input into an PSI investigation taints the sentence; a PSI investigation is an event analogous to a waiver investigation; therefore, ex parte prosecutorial input taints the waiver process. The court of appeals rejected the analogy: ordering a waiver investigation is permissive, while a PSI is ordered only after conviction, slip op., ¶8. (This is a non sequitur. Ordering a PSI may occur only after conviction, but that is a mere detail; a PSI is no more or less permissive than a waiver investigation, State v. Suchocki, 208 Wis. 2d 509, 515, 561 N.W.2d 332 (Ct. App. 1997) [“The use of a PSI is a matter within the court’s discretion. The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI.”].) Moreover, according to the court of appeals, a waiver investigation is filed by the prosecutor, while a PSI is ordered only by the court, slip op., ¶10. (Another non sequitur: a waiver investigation is no less within the exclusive purview of the judiciary than a PSI.) The court of appeals’ reasoning is highly suspect. The idea is that a PSI recommendation is quasi-judicial in nature, so that it is “vital for the author of the report to be independent of either the prosecution or the defense,” State v. Thexton, 2007 WI App 11, ¶5, 298 Wis. 2d 263, 727 N.W.2d 560, emphasis in original. The same is self-evidently true of a waiver recommendation. Given that the prosecution itself requested waiver, how fair is it to say that the State can implore the local agency to make a quasi-judicial ratification of the State’s own request without opportunity for adversarial input? We shall see.

State v. Ricky O. Halverson, 2011AP240-CR, District 2, 9/14/11

court of appeals decision (1-judge, not for publication); for Halverson: Walter R. Andrew; case activity

Officer, whose investigation of single-car crash led him to Halverson’s home, wasn’t properly engaged in community caretaker exercise when he took Halverson into custody, supposedly for his own good, ¶¶8-14. Community caretaker test, State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598, recited;  State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, applied and followed. Principal point in controversy: whether Halverson was so intoxicated that the officer needed to take him into protective custody, ¶10.  The trial court resolved this issue factually, finding that although Halverson was “heavily intoxicated,” there was no evidence “to suggest that Halverson was so intoxicated as to justify Cates taking him into custody for his protection,” ¶11. The court of appeals defers to this finding (in no small part because it was based on the trial court’s review of a police video that the State neglected to place in the appellate record, ¶11 n. 2), and thus affirms the trial court’s suppression of evidence.

The court, citing Ultsch, stresses “that stricter scrutiny is applied to an encounter in the home, as opposed to a police encounter with an individual in a vehicle,” ¶14. The intrusion on Halverson’s privacy rights in his own home was “substantial,” the countervailing public interest in that intrusion, “minimal,” id. Note, though, that the officer’s intrusion itself might be thought minimal (he “stepped one foot inside the residence and was just inside the doorway when he handcuffed Halverson[]”) – might, except that the relevant analysis is binary, not sliding scale; either an entry occurred or it didn’t, a foot is as good as a mile. State v. Johnson, 177 Wis. 2d 224, 232, 501 N.W.2d 876 (Ct. App. 1993) (“Without question, Officer Klug’s step into the threshold, preventing Johnson from closing the door, was an entry. … Even extending only from the tips of his toes to the balls of his feet, it fixed the ‘first footing’ against which the United States and Wisconsin Supreme Courts warned.”).

Statements made by various witnesses who showed up at the scene were traceable to the illegal search and seizure, hence are suppressed.

¶16      The question is whether the statements made by Halverson’s friends and the tow truck driver were obtained by exploitation of his unlawful detention or by means sufficiently distinguishable to be purged of the primary taint.  See State v. Simmons, 220 Wis. 2d 775, 781, 585 N.W.2d 165 (Ct. App. 1998) (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).  The three factors relevant to determining whether the causal chain is sufficiently attenuated so as to dissipate the taint of the illegal conduct were set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975):  the temporal proximity of the official misconduct, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct.  See State v. Walker, 154 Wis. 2d 158, 186-87, 453 N.W.2d 127 (1990) (citing the Brown analysis as the proper test in attenuation cases); Simmons, 220 Wis. 2d at 781.  It is the State’s burden to prove attenuation.  State v. Phillips, 218 Wis. 2d 180, 204-05, 577 N.W.2d 794 (1998).

¶17      The circuit court found that the statements made by the tow truck driver and Halverson’s friends were obtained by exploitation of Halverson’s unlawful seizure.  We agree.  As the court noted in its decision, Halverson had the right to, and did, ask Cates to leave his property. Cates should have left upon Halverson’s request but did not.  Instead, Cates unlawfully seized Halverson, “gets him in the squad” and then “just stand[s] around.”  While standing around, Cates accumulated evidence against Halverson for OWI.  The facts surrounding Cates’s encounters with the witnesses support the circuit court’s determination.  The circuit court found that after Halverson asked Cates to leave his property, it was “quite a while” before the tow truck driver appeared at Halverson’s residence.  In addition, Cates testified that Halverson was detained in the squad car in his own driveway for a total of thirty to forty-five minutes.  While Cates indicated a willingness to turn Halverson over to his friends due to his intoxicated condition, Cates’s testimony reflects that the focus of the discussions with Halverson’s friends and tow truck driver was the accident.  We conclude, as did the circuit court, that the witness statements were obtained by Cates through the exploitation of Halverson’s unlawful detention.

While there’s no reason to doubt this result, on these facts, it oughtn’t be assumed that taint analysis is precisely the same for witness statements as the defendant’s. United States v. Ceccolini, 435 U.S. 268, 278 (1978) (“In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.”). Implicit in the court’s analysis here: a very direct link was established between illegal police conduct and witness statements.

City of Sheboygan Falls v. John D. Prinsen, 2011AP700, District 2, 9/14/11

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

Probable cause supported stop for driving wrong way on highway, based on information provided ion a 911 call; State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, applied:

¶11      The Rutzinski standard is met in this case.  Liebenthal, unlike the informant in Rutzinski, was not anonymous.  He identified himself and provided a statement to the police, which significantly bolsters his credibility.  Liebenthal also observed Prinsen’s driving firsthand, and was close enough to report Prinsen’s license plate number.  Finally, Prinsen was allegedly driving on the wrong side of a highway, an immense threat to public safety.  Liebenthal was an amply reliable informant, and Officer Hoogester was justified in relying on the information conveyed by the dispatch operator.

State v. Stuart J. Gasper, 2010AP1973-CR, District 2, 9/14/11

court of appeals decision (not recommended for publication); for Gasper: Mark A. Schoenfeldt; case activity

On a trial for hit-and-run and OWI, evidence that just before the charged events, the defendant’s car struck another car, was not “other acts” evidence within § 904.04(2) but, rather, was admissible to show “context”:

¶13      At the postconviction motion hearing, the trial court aptly concluded that “review of the pertinent testimony [shows] that this was not other acts evidence, rather this is evidence given to give the context of the scene and to complete the entire story that developed this night in question.”  We agree. McGuire’s testimony was not other acts evidence because it was part of the panorama of evidence needed to completely describe the events that occurred.  See State v. Hereford, 195 Wis. 2d 1054, 1069, 537 N.W.2d 62 (Ct. App. 1995) (“Testimony of other acts for the purpose of providing the background or context of a case is not prohibited by [Wis. Stat.] § 904.04(2).”).  The event that happened to McGuire was part and parcel of the events that evening.  Just because  the police did not know about the hit-and-run to McGuire does not mean that her testimony was “another” crime. It is as plain as day that what happened to McGuire was simply part of the same reckless driving sequence. We need not discuss this argument further.