On Point

federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11

Habeas Review – Right to Present Defense – Expert Opinion, Based PBT

Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303  on PBTs, denied Fischer his constitutional right to present a defense.  Summary of habeas court’s analysis:

• A state rule resulting in exclusion of defense evidence is constitutionally valid so long as not arbitrary or disproportionate to the rule’s purpose (p. 3). When a rule results in outright denial or significant diminution of the right to present a defense–the Wisconsin ban on PBT evidence worked a complete denial of Fischer’s defense–then the fact-finding process must be closely scrutinized because its integrity is called into question (p. 7).
• Exclusion of unreliable evidence, such as polygraph testing, serves an important interest, but PBT unreliability was not the basis for exclusion according to the majority of the Wisconsin supreme court. Instead, the purpose was to further the state’s interest in arresting and convicting drunk drivers, by disincentivizing suspected drunk drivers from refusing to take PBTs (pp. 9-12). (Though expressly declining to rule on whether the alternative rationale for exclusion, PBT unreliability, would have supported the ban, the cort strongly suggests that it would have, pp. 17-18.)
• The “stated rationale” for exclusion “is wholly speculative and arbitrary” (p. 12). “The Wisconsin Supreme Court’s conclusion that the purpose of banning PBT’s at trial is to keep the roads appears to have been made form whole cloth” (p. 14). Thus, while Fischer’s interest in exonerating himself is obviously quite strong, the state’s countervailing interest isn’t entitled to much if any weight (pp. 15-19).

The rationale for categorical exclusion, not the exclusion itself, leads to relief, because the state has greater latitude to exclude unreliable evidence.

The United States Supreme Court recognized: “State and federal governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules.” Scheffer, 523 U.S. at 309. In the context of polygraph examinations, the Court held that because there was no consensus that polygraph evidence is reliable, the wholesale exclusion of such evidence was a reasonable restriction that did not offend a defendant’s right to present a defense. Id. at 310-12. The exclusion of evidence determined to be unreliable also served other important interests such as ensuring that the trial does not devolve into a trial over the reliability of the evidence and thus detract and distract from the central question of the defendant’s guilt or innocence. Id. at 315.

All the same could be said regarding PBTs and, in fact, was said by the lower courts that heard this matter and by three Justices concurring in Fischer. However, this court is unable to rely upon the rationale stated by the trial court, the court of appeals, or a minority of the Wisconsin Supreme Court in order to resolve Fischer’s petition. Rather, this court must constrain its review to the majority decision of the Wisconsin Supreme Court, and the majority expressly rejected the state’s argument that concerns about reliability warranted the wholesale exclusion of PBT results for any purpose in a drunk driving case. …

This frees the habeas court to take a look at the policy advanced by the state court majority for exclusion: suspected drunk drivers falling into a “narrow gap between reasonable suspicion and probable cause to arrest” will be more likely to agree to the PBT if it isn’t admissible at any subsequent trial.

Although arresting and convicting suspected drunk drivers is undisputedly a compelling state interest, in the opinion of this court, the Wisconsin Supreme Court’s stated rationale that this interest bars the admission of PBT evidence for the purpose of presenting it at trial is wholly speculative and arbitrary. Neither the state nor the Wisconsin Supreme Court has supported this conclusion through any legislative history or any other factual support. Although the Wisconsin Supreme Court refers to its prior decision in County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), wherein the court discussed the legislative history of § 343.403, Renz does not offer any meaningful insight into why the legislature concluded that PBTs were inadmissible for any purpose. …

The Wisconsin Supreme Court’s conclusion that the purpose of banning PBTs at trial is to keep the roads safe appears to have been made from whole cloth. This is not to say that a statute is arbitrary if a rationale for upholding the law is not found within the legislative history, or that a court tasked with determining whether a law’s application is arbitrary is limited to what is contained in the legislative history. This court merely highlights the lack of support in the legislative history to demonstrate how the conclusion of the Wisconsin Supreme Court appears to have been a product of pure speculation.  A contrary, and perhaps stronger, but similarly speculative and arbitrary argument could be made that permitting defendants to utilize PBT results as Fischer seeks to do would also encourage a driver to take a PBT, thus serving the state’s interest.

The habeas court goes on to say that if anything the statutory PBT ban removes an incentive to agree to the test. On top of that, a “total prohibition” on potentially favorable defense evidence triggers “more searching” analysis “than the due process analysis that applies to an ordinary law.” If the evidentiary bar is either arbitrary or disproportionate to its designed purpose, it must give way. The court’s conclusion that the PBT ban was disproportionate to its stated purpose obviously follows: the defendant’s interest in exoneration is paramount and weighs heavily in favor of admissibility; the stated purpose, removing a disincentive to consenting to PBTs, carries little weight in favor of exclusion.

A succinct summary of this court’s balancing analysis is that the Wisconsin Supreme Court in Fischer determined that the state’s interest in removing a questionable disincentive for a narrow class of drivers that may be non-existent due to the almost indistinguishable probable cause definitions, outweighs the need of a criminal defendant to present reliable evidence that may provide a defense to the charged crime. The court must reject that balancing act. Accordingly, this court concludes that this situation clearly calls for an application of the United States Supreme Court’s holding that a state evidentiary rule must yield if its infringement upon a weighty right of the accused is disproportionate to the interest it was designed to serve. Thus, the court concludes that the Wisconsin Supreme Court’s decision affirming the exclusion of Fischer’s expert’s testimony involved an unreasonable application of federal law as determined by the United States Supreme Court and therefore, a conditional writ shall be granted.

On entirely separate procedural points, of interest because recurrent: the court reminds that a petitioner released on bail is nonetheless in “custody” for purposes of 2254 habeas review, Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., 411 U.S. 345, 346 (1973). Fischer is out on bail from a 5-day sentence, so he satisfies the custody requirement. But if the sentence involves merely a fine or driver’s license suspension, then 2254 “custody” is lacking, citing among other cases, Barnickel v. U.S., 113 F.3d 704, 706, (7th Cir 1997).

State v. Precious M. Ward, 2009AP2085-CR, District 1, 10/5/10

court of appeals decision (3-judge, not recommended for publication); for Ward: Lew A. Wasserman; BiC; Resp.; Reply

Hearing-Impaired Juror

Juror who was hearing impaired, but not completely so; who could lip read; and for whom the trial judge took precautions to make sure he could hear everything, was qualified to sit.

The court rejects the idea that Strook v. Kedinger, 2009 WI App 31 disqualifies a juror who must rely on lipreading.

¶9        Furthermore, we, like the trial court, are not convinced that Kedinger “stands for the proposition that anyone with a hearing impairment who lipreads could never qualify as a juror,” which is what Ward seems to imply.  Additionally, we are unpersuaded by Ward’s argument that Juror Johnson was objectively biased simply because he engaged in lipreading.

Record Reconstruction

Lack of record of trial court in limine ruling barring “3rd-party defense” didn’t deny Ward his right to meaningful appeal.

¶13      It is Ward’s burden to show a “‘colorable need’” for the missing ruling on the motion in limine.  See id., ¶40 (explaining that “when challenging the sufficiency of a record, the appellant has the burden to demonstrate that there is a ‘colorable need’ for the missing portion of the record”) (citation omitted).  In this regard, Ward “is not required to show prejudice, but the error cannot be so trivial that it is clearly harmless.”  See id. The decision as to whether the defendant’s right to a fair and meaningful review is frustrated by transcript errors or omissions is a discretionary one, which we “will support if due consideration is given to the facts then apparent, including the nature of the claimed error and the colorable need for the missing portion—and to the underlying right under our constitution to an appeal.”  State v. Perry, 136 Wis. 2d 92, 109, 401 N.W.2d 748 (1987).

The court rejects the idea that the mere fact of a missing transcript of a ruling supports relief; instead, something more than conclusory allegations related to the substance underlying the ruling was necessary.

¶16     … We are not persuaded that Ward presented the trial court with a claim of “error which, were there evidence of it revealed in the transcript, might lend color to a claim of prejudicial error.”[6] See Perry, 136 Wis. 2d at 101; see generally State v. Bentley, 201 Wis. 2d 303, 309-11, 548 N.W.2d 50 (1996) (explaining that if the defendant fails to allege sufficient facts or presents only conclusory allegations in a postconviction motion, the trial court may deny the motion without a hearing).

¶17      Ward argues that this conclusion, in essence, requires him to demonstrate prejudice when Perry instructs that he need only convince the court that the missing portion of the transcript would demonstrate reviewable error.  See id., 136 Wis. 2d at 101.  We disagree with his assessment that we are somehow changing the burden that was imposed upon him.  It would have been an easy thing for Ward to present more than conclusory allegations by, for example, including a copy of the discovery his postconviction counsel claimed Ward had a copy of (i.e., “10.  Mr. Ward had a copy of the discovery, and knew that there were witnesses who would say that it was the guy (Mr. Maggett) with the braids and the orange golf shorts [who] shot Mr. McCollum.”).  Without more, we hold fast to our determination that trial court did not err when it denied Ward’s motion.

The court pronounces itself “troubled” by the trial judge’s seemingly casual attitude toward a missing and possibly crucial ruling, fn. 6; and gently pleads with “the trial court to do more in the future to ensure that its rulings are placed on the record and to carefully consider whether reconstruction is warranted,” id.

State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply

A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,” his attack fails.

The court appears to reject the idea “that the circuit court must engage in at least some discussion with the defendant regarding his or her waiver of counsel.”

¶12      Although the court did not engage in a discussion with Bucknell regarding his right to an attorney, it is clear from Bucknell’s testimony that he was aware of this right but made a conscious decision to waive that right due to financial constraints. Accordingly, we conclude that Bucknell’s waiver of his right to counsel prior to his guilty pleas to second and third offense OWI was knowing and intelligent.

But: State v. Alan J. Ernst, 2005 WI 107, ¶25, suggests that if he defendant “‘did not know or understand the information which should have been provided’ in the previous proceeding” he or she “did not knowingly, intelligently, and voluntarily waive his or her right to counsel.” Thus, ignorance of knowledge mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997), supports collateral attack, Ernst, ¶2. Not clear from the court’s discussion just how closely it applied this requirement to Bucknell’s testimony.

Village of Marathon City v. Jenny L. Nowak, 2010AP462, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); Resp. Br.

¶11      The five-factor Hanson/Kramer test is used to determine the accuracy of moving radar.[4] See Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 133 n.2, 399 N.W.2d 906 (1987).  “If there is compliance with the Hanson/Kramer criteria, the [radar device] readout is presumptively correct and is to be admitted into evidence.”  Id. at 137.

¶12      Nowak does not contest the accuracy of the radar.  She also does not point to any evidence, or even assert, that the Village failed to satisfy the Hanson/Kramertest, nor does she provide support for her contention that a radar device must be licensed by the FCC as a condition precedent to the admissibility of radar evidence. Accordingly, she has not established that the circuit court erroneously exercised its discretion in admitting the radar evidence.

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[4] The five factors are:

1. The officer operating the device has adequate training and experience in its operation.

2. That the radar device was in proper working condition at the time of the arrest. This will be established by proof that suggested methods of testing the proper functioning of the device were followed.

3. That the device was used in an area where road conditions are such that there is a minimum possibility of distortion.

4. That the input speed of the patrol car must be verified, this being especially important where there is a reasonable dispute that road conditions may have distorted the accuracy of the reading (i.e., presence of large trucks, congested traffic and the roadside being heavily covered with trees and signs).

5. That the speed meter should be expertly tested within a reasonable proximity following the arrest and that such testing be done by means which do not rely on the radar device’s own internal calibrations.

State v. Kramer, 99 Wis. 2d 700, 703, 299 N.W.2d 882 (1981) (quoting State v. Hanson, 85 Wis. 2d 233, 245, 270 N.W.2d 212 (1978)).

Jeffrey J. v. David D., 2010AP1717, District 3, 9/28/10

court of appeals decision (1-judge, not for publication); for David D.: Shelley Fite, SPD, Madison Appellate

Parent’s right to confrontation was satisfied by in-chambers discussion between judge and children during which they spoke in favor of termination, where their father killed their mother and grandparents, and the judge reasonably determined that they would suffer emotional harm if required to submit to face to face confrontation.

Discussion by court of common law and statutory right to confrontation and cross-examination.

Door County v. Andrew M. LaFond, 2010AP976, District 3, 9/28/10

court of appeals decision (1-judge, not for publication); for LaFond: Robert C. Raymond; BiC; Resp.; Reply

The court rejects an argument that a driver has a due process right to be informed that a blood sample can be taken forcibly upon refusal to consent to a blood draw.

¶8        Our supreme court has held that the information required by what is now WIS. STAT. § 343.305(4) is all that is required to meet due process requirements. Crandall, 133 Wis. 2d at 259-60.[4] Thus, the “Informing the Accused” form adequately informed LaFond of his rights and responsibilities under the Wisconsin implied consent law. See id. at 259. The form warned LaFond that refusal would result in his license being revoked and would subject him to other penalties. This warning “made it clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” Id. at 255 (quoting South Dakota v. Neville, 459 U.S. 553, 566 (1983)) (one set of internal quotation marks omitted). LaFond knew that refusal carried consequences, and there was no requirement that he be specifically informed of all the possible consequences. See id. at 259-60. Because LaFond was provided all the information required by § 343.305(4) before he refused to submit to the blood alcohol test, we conclude his due process rights were not violated.

State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10

court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply

The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:

• the “whole matter was “aggravated by the defendant’s record,” some of which the State wasn’t aware of when it struck the bargain [it was clear that the unknown priors were “minor matters”];
• referencing with apparent approval the PSI characterization of Jones as “extremely dangerous” [“the facts bear out that opinion,” in other words Jones indisputably was dangerous]; and
• advocating a “fairly lengthy” prison sentence “such as” 10 years [10 years is “fairly lengthy,” therefore that charcertization wasn’t “less than neutral”].

Leading end-run cases, State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733; and State v. Poole, 131Wis. 2d 359, 394 N.W.2d 909 (Ct. App. 1986), distinguished. The court also reiterates that failure to object to a claimed breach of the plea bargain forfeits the issue, which then must be raised under rubric of ineffective assistance of counsel.