On Point

State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.

1st-Degree Intentional Homicide – Sufficient Evidence, Intent

¶13      That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound, does not demonstrate a lack of intent to kill. Zurkowski acknowledged he also repeatedly kicked June in the ribs while she was laying on the ground and he was standing above her and that she no longer had the knife when he was jamming the ceramic dish in her mouth. Zurkowski also ignores the fact that he chose not to call for an ambulance after the struggle despite knowing June was dying. Further, regardless whether he intended that the dish break off in her mouth, he intentionally forced the dish in there, leaving tooth marks in the ceramic.

¶14      Zurkowski also ignores evidence suggesting he planned to kill June. …

¶15      In light of the overwhelming evidence presented, the jury could reasonably reject Zurkowski’s self-serving claim that he did not intend to kill his wife. …

No kidding.

“McMorris” Evidence

When self-defense is raised,McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) allows admissibility of prior specific instances of violence committed by the victim and within the defendant’s knowledge. Admissibility is not automatic, but is discretionary; Zurkowski’s effort to obtain admissibility of two prior acts of the deceased victim, his wife, falls short:

¶21      The circuit court properly concluded Zurkowski’s hazy testimony did not fall into the realm of McMorris evidence of prior violent acts. There were no verbal threats accompanying the “pointing” of the knife, which occurred during food preparation in the kitchen. Indeed, Zurkowski provided very little context in which to consider the incidents. There was little or no discussion before, during, or after the pointing. Further, the incidents were not significant enough to produce a fear of bodily harm. Zurkowski merely walked away and “went on with his life.” Under these facts, the pointing of the knife, without more, can hardly be said to constitute a violent act. Furthermore, for the same reasons, the court reasonably concluded the testimony was inadequate to demonstrate any effect on Zurkowski’s state of mind when he killed June.

Sanction – Appendix

¶23      Finally, we observe Zurkowski’s appellate counsel filed a deficient appendix.  An appellant’s brief must “include a short appendix containing, at a minimum, the findings or opinion of the circuit court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.” WIS. STAT. RULE 809.19(2)(a). Zurkowski’s brief’s appendix contains only the judgment of conviction. “A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant.” State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367.

¶24      Counsel also falsely certified that the brief’s appendix complied with the rule. Filing a false certification is a serious infraction not only of the rule, but also of SCR 20:3:3(a), which prohibits knowingly making false statements of fact or law to a tribunal. Id., ¶24. Counsel’s omission places an unwarranted burden on the court and is grounds for imposition of a penalty pursuant to WIS. STAT. RULE 809.83(2). Id., ¶25. Accordingly, we sanction Zurkowski’s attorney for providing a deficient appendix and a false certification, and direct that he pay $150 to the clerk of this court within thirty days of the date of this opinion.

The Appendix matters. The court’s ire is understandable. (That the court fully intends to enforce the Appendix-Certification rule is not to be doubted, as this opinion well-illustrates; for earlier examples, see here.) But even though the violation is plain, is sanction-by-fiat defensible? Even in the instance of summary contempt, which is to say offensive conduct committed in the court’s presence, counsel has the right to allocution before sanction is meted out: why is this any different? Recent, albeit foreign, authority: McCoy v. Fed Express, 9th Cir No. 09-15575, 6/15/10 (“Inherent power sanctions require a level of procedural protections similar to that required for contempt proceedings.”)

State v. Charles D. Brown, No. 2009AP2093-CR, District I, 6/23/10

court of appeals decision (3-judge, not recommended for publication); for Brown: Martin J. Pruhs; BiC; Resp.

Under State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992), a court may not sua sponte order withdrawal of a guilty plea, absent fraud or intentional withholding of material information. That rule is not, however, triggered by the circumstances of this case:

¶20      The trial court never completed a formal Comstock analysis, however, because in the course of conversing with Brown about whether the plea was appropriate, Brown appeared to agree that the case should proceed to trial. Specifically, when the trial court suggested that if the drugs were not his, they should finish the trial, Brown twice responded affirmatively. In response, the trial court asked Brown if he wanted to consult with his trial counsel, and he said yes. Next, trial counsel told the trial court Brown wanted to proceed with the trial.

¶21      … Not only did Brown affirmatively indicate he wanted to proceed to trial, he does not claim to have subsequently objected to proceeding to trial on the counts as originally charged.

¶22      For these reasons, we reject Brown’s assertion that the trial court sua sponte vacated his pleas. We also reject his argument that he was subjected to double jeopardy when the original charges were tried to the jury. When Brown withdrew his guilty pleas, he waived any jeopardy that attached by the entry of that plea. See State v. Bagnall, 61 Wis. 2d 297, 302, 212 N.W.2d 122 (1973) (“Jeopardy is waived by the entry of a motion to withdraw a guilty plea.”), superseded by statute on other grounds as stated in State v. Rabe, 96 Wis. 2d 48, 55-56, 291 N.W.2d 809 (1980).

The plea was ordered withdrawn after Brown said the drugs at issue weren’t his. He argues on appeal that he nonetheless did have dominion and control — “possession,” in a word — but the court says this isn’t relevant: “But here, Brown ultimately elected to withdraw his pleas, after consulting with his trial counsel. His reasons for withdrawing the pleas or the wisdom of doing so are not issues properly before this court,” ¶23. The court must be seeing this in terms of estoppel (Brown elected to withdraw his plea on the ground the drugs weren’t his, so he’s estopped now from taking a contrary position), though the court doesn’t explicitly say so. A distinct and potentially interesting issue, whether the plea-withdrawal was knowing and voluntary, isn’t sufficiently pressed on appeal and the court declines to reach it, ¶23 n. 4.

City of Chippewa Falls v. Kenneth C. Hein, No. 09AP2729, District III, 6/23/10

court of appeals decision (1-judge; not for publication); for Hein: Paul D. Polacek; BiC; (Resp. not on-line); Reply

Stop of Hein’s vehicle was supported by “reports of suspicious activity about 2:30 a.m., the nature of which was unknown:”

¶10      … A prudent officer proceeding into such ambiguity and uncertainty will ensure the availability of witnesses or suspects and freeze the scene in order to further investigate:

[A] law enforcement officer will be confronted with many situations in which it seems necessary to acquire some further information from or about a person whose name he does not know, and whom, if further action is not taken, he is unlikely to find again ….

[I]n such circumstances, where a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to “freeze” the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken.  To deny the police such a power would be to pay a high price in effective policing and in the police’s respect for the good sense of the rules that govern them.

4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.2(a) at 286-87 (4th ed. 2004) (citation and footnote omitted); see alsoAdams v. Williams, 407 U.S. 143, 145-46 (1972) (brief stop of a suspicious individual, in order to determine his or her identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time).

¶11      The totality of the circumstances presented to the officers at the time of the stop supported their decision to temporarily detain Hein while gathering more information.  The circuit court erred in granting Hein’s suppression motion.  Consequently, we reverse and remand for further proceedings consistent with this opinion.

The stop in Williams was based on a specific report that an individual was carrying drugs and had a gun in his waistband; the question was whether the report was sufficiently reliable to support reasonable suspicion. In this case, the officer was merely told that Hein had been involved in an “incident” in a parking lot, and the report was so utterly bereft of details that the officer professed himself “confused about what had happened in the lot,” ¶¶2-3. Neither Williams nor LaFave says that whenever the police don’t know what happened they can seize someone to see if they have reasonable suspicion for the seizure. If that sounds tautological that’s because it is. You need reasonable suspicion to believe a crime was committed, something missing in this case.

Village of Whitefish Bay v. David W. Czirr, No. 2010AP92, District I, 6/22/10

court of appeals decision (1-judge; not for publication); for Czirr: Rex Anderegg; BiC; Resp.; Reply

Driving across median, even for very brief period of time, establishes probable cause to arrest for traffic offense:

¶14      Next, Czirr does not specifically argue that momentarily being on top of the median cannot constitute a violation of WIS. STAT. § 346.15 as a matter of law. There is no controlling case law with respect to § 346.15, but our supreme court’s analysis of a similar traffic violation is instructive. In Popke, the court concluded that where the driver’s vehicle briefly operated left of the center of the road, the officer had probable cause to believe that the driver had violated WIS. STAT. § 346.05 (2005-06) (prohibiting a person from driving left of center), and could, on that basis, initiate a traffic stop. See Popke, 317 Wis. 2d 118, ¶¶15, 17-18.  Similarly, while Czirr may have only briefly traveled on the median, that act gave the officer probable cause to initiate the traffic stop.

John Ebert v. Gaetz, 7th Circuit No. 09-1627, 6/23/10

7th circuit court of appeals decision

When the ineffective assistance claim is based on counsel’s failure to file a motion to suppress, as it is here, the defendant must also prove “that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see also United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). These are at best difficult showings to make, particularly since Strickland requires that we presume counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U.S. at 690, and evaluate his performance as a whole rather than focus on a single failing or oversight, Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005). Ebert’s uphill slope is even steeper under AEDPA, which adds an extra layer of deference to our review. See Ellison v. Acevedo, 593 F.3d 625, 633 (7th Cir. 2010); Bin-Yisrayl, 540 F.3d at 546; Conner v. McBride, 375 F.3d 643, 657 (7th Cir. 2004) (“[W]e do not apply the Strickland standards directly, but instead ask whether the post-conviction court’s factual findings and conclusions pass AEDPA muster.”).

The court goes on to hold that the police had probable cause to arrest, hence Ebert suffered no prejudice from counsel’s failure to (renew) a previously-lost suppression motion on retrial. Probable cause is necessarily quite fact-specific, so the particular details don’t bear reciting; but some of the larger points do:

1. “In short, ‘it does not take much to establish probable cause. The officers must have more than a bare suspicion that they have the right guy, but they need not have enough evidence to support a conviction or even to show that their belief is more likely true than false.’ Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010).”
2. The Confrontation Clause doesn’t apply to suppression hearings.
3. “‘(T)he amount of information the police are required to gather before establishing probable cause for an arrest is in inverse proportion to the gravity of the crime and the threat of its imminent repetition,’ Mason v. Godinez, 47 F.3d 852, 856 (7th Cir. 1995). Given the gravity of the crimes here [murder; robbery], the probable cause bar was low[.]”
4. “It is of no moment that the court neglected to give weight to Ebert’s attorney’s assessment of his performance as constitutionally ineffective. See McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir. 2009) (noting that attorney ‘reflection after the fact is irrelevant to the question of ineffective assistance of counsel’); Chandler v. United States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) (en banc) (‘Because the standard is an objective one, that trial counsel . . . admits that his performance was deficient matters little.’)”

Magwood v. Patterson, USSC No. 09-158, 6/24/10

After a defendant has been resentenced in state court pursuant to relief granted on a federal habeas petition, a second federal habeas petition challenging the new sentence will be treated as a first petition (vs. a “2nd or successive” petition), even if raising grounds that could have been raised in the original petition.

We have described the phrase “second or successive” as a “term of art.” Id., at 486. To determine its meaning, we look first to the statutory context. The limitations imposed by §2244(b) apply only to a “habeas corpus application under §2254,” that is, an “application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court,” §2254(b)(1) (emphasis added). The reference to a state-court judgment in §2254(b) is significant because the term “application” cannot be defined in a vacuum. A §2254 petitioner is applying for something: His petition “seeks invalidation (in whole or in part) of the judgment authorizing the prisoner’s confinement,” Wilkinson v. Dotson, 544 U. S. 74, 83 (2005) (emphasis added). If his petition results in a district court’s granting of the writ, “the State may seek a new judgment (through a new trial or a new sentencing proceeding).” Ibid. (emphasis in original). Thus, both §2254(b)’s text and the relief it provides indicate that the phrase “second or successive” must be interpreted with respect to the judgment challenged.

…

This is Magwood’s first application challenging that intervening judgment. The errors he alleges are new. It is obvious to us—and the State does not dispute—that his claim of ineffective assistance at resentencing turns upon new errors. But, according to the State, his fair-warning claim does not, because the state court made the same mistake before. We disagree. An error made a second time is still a new error. That is especially clear here, where the state court conducted a full resentencing and reviewed the aggravating evidence afresh.  See Sentencing Tr., R. Tab 1, at R–25 (“The Court in f[or]mulating the present judgment has considered the original record of the trial and sentence. . . . The present judgment and sentence has been the result of a complete and new assessment of all of the evidence, arguments of counsel, and law” (emphasis added)).13

Potentially crucial limitation with respect to challenge to conviction:

The State objects that our reading of §2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. … This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.¹⁶ …

---

¹⁶ Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the “portion of a judgment that arose as a result of a previous successful action.” Lang v. United States, 474 F. 3d 348, 351 (CA6 2007) (citing decisions); see also Walker, 133 F. 3d, at 455; United States v. Esposito, 135 F. 3d 111, 113–114 (CA2 1997).

Keep in mind, too, that this opinion doesn’t change the rule that sentence modification outside the direct-appeal process doesn’t reset the 2254 clock: David Lozano, Jr. v. Frank, 424 F. 3d 554 (7th Cir 2005).

UPDATE:  In Suggs v. U.S., No. 10-3944 (7th Cir. Jan. 17, 2013), the Seventh Circuit addressed the question Magwood did not regarding a second-in-time petition that challenges only the prisoner’s underlying conviction after the prisoner had already won resentencing with a previous petition. Suggs, a federal prisoner, challenged his conviction and sentence with a § 2255 petition and succeeded in getting resentencing. After his resentencing, Suggs obtained new information he claims shows he’s innocent, so he filed a second petition challenging his conviction. Under circuit precedent predating Magwood, his second-in-time petition is limited to errors at the resentencing. The court concludes that precedent is still good:

The Magwood Court expressly declined to extend its holding to the situation we face here, where the second motion challenges the original conviction, not the new sentence. This circuit’s precedent holds that the second motion here is barred as  second or  successive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001). We recognize that the reasoning in Magwood casts some doubt about the continued viability of Dahler. However, because Magwood explicitly limited its holding so as not to reach the situation we face here, we are not persuaded that we should overrule our precedent.

Judge Sykes dissents, saying Magwood has “displaced” Dahler and citing cases from two other circuits holding a petition like Suggs’s should not be barred. Suggs creates a circuit split, and that, along with the importance of the issue to habeas practice, means the Supreme Court will likely be addressing the question sooner or later.

State v. Melvin G. Walton, No. 2009AP001304-CR, District I, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Walton: Byron C. Lichstein; BiC; Resp.; Reply

Prosecutorial Failure to Disclose Evidence

¶28     The State has two separate evidence-disclosure responsibilities: a statutory responsibility imposed by WIS. STAT. § 971.23 and a constitutional responsibility imposed by Brady v. Maryland, 373 U.S. 83 (1963). Section 971.23(1) identifies what the State must disclose to a defendant. If the State does not show good cause for failing to disclose the information, the court must determine whether the defendant was prejudiced, applying the harmless error test. See State v. Harris, 2008 WI 15, ¶¶15, 41-42, 307 Wis. 2d 555, 745 N.W.2d 397. Whether a defendant has been prejudiced presents a question of law subject to our independent review. Id., ¶15.

¶29     Under Brady, “a defendant has a constitutional right to evidence favorable to the accused and that a defendant’s due process right is violated when favorable evidence is suppressed by the State either willfully or inadvertently, and when prejudice has ensued.” Harris, 307 Wis. 2d 555, ¶61. “Prejudice means that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id. (citations and one set of quotation marks omitted). Harris continued: “‘[S]trictly speaking, there is never a real Brady violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.’” Harris, 307 Wis. 2d 555, ¶61. (citations and one set of quotation marks omitted).

The prosecution failed to provide the defense with a CD of a witness’s interrogation. The court of appeals itself reviews the CD and determines that it neither contained evidence that the witness’s statement was coerced nor that it added much if anything to trial testimony, hence non-disclosure wasn’t prejudicial.

Deficient Performance – Failure to Suppress Showup

Counsel performed deficiently in failing to seek suppression of both a concededly unnecessary showup and the in-court identification by that witness, but the deficiency wasn’t prejudicial, given strong independent evidence of the reliability of the identification, ¶¶39-43.