On Point

court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination. United States v. Surridge, 687 F.2d 250, 252 (8th Cir. 1982).  Once these historical findings have been ascertained, it is a legal question whether the relationship or understanding found by the trial court is such that the informant’s questioning has to be considered government interrogation. Id. This is an important distinction here, because Lewis makes the bold assertion that “Trenton Gray had an agreement with the federal government to reveal all that he knew or came to know regarding criminal activities.” While that is what Gray testified to, that is not what the trial court found. …

Appellate Procedure – Standard of Review: Documentary Evidence

¶15 n. 2:

We acknowledge that we are in the same position as the trial court to read the written proffer.  So, technically speaking, we would employ a de novo review of the document. See State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). Nonetheless, because the trial court heard evidence consisting of the conduct of the various governmental entities and Gray to see if the conduct was consistent or inconsistent with the court’s interpretation, and made its ultimate findings with that evidence in mind, our review really becomes a mixed question of fact and law as far as construing the proffer is concerned. With this standard of review in place, we conclude that the proffer document is not the slightest bit ambiguous and does not in any way support Gray’s testimony that the document required him to present continuing information of all that he learned relating to criminal activities unrelated to the circumstances of his federal charges. Moreover, the trial court’s findings regarding the conduct of the parties are not clearly erroneous. See Wis. Stat. § 805.17(2).

Confessions – 6^th Amendment: Jailhouse Snitch, Post-Charge

¶1        The main issue in this Sixth Amendment case concerns inculpatory statements made to a jailhouse cellmate by the defendant, Carl A. Lewis, Jr., after he had been provided counsel. The United States Supreme Court has announced the law in this area. Law enforcement is prohibited from using a surreptitious government agent (e.g., a fellow jail cellmate) to deliberately elicit incriminatory statements, by investigatory techniques that are the equivalent of direct police interrogation, in the absence of counsel or a valid waiver of counsel. We hold that this requires evidence of some prior formal agreement—which may or may not be evidenced by a promise of consideration—plus evidence of control or instructions by law enforcement. Here, Lewis’s cellmate, Trenton Gray, had approximately one year earlier, executed a standard federal proffer, promising information which might lead to charging other individuals “in [that federal case] or related investigations.” (Emphasis added.) There was no promise for “continuing cooperation” beyond that. Therefore, we reject Lewis’s argument that the proffer carried over to this case. Because Gray acted purely on his own in the hope of getting further sentencing consideration, we affirm. …

On the facts, there may be a bit less than meets the eye. Gray thought he had an agreement with the feds to provide information in hopes of a lesser sentence, and he had done so in the Dodge, Milwaukee and Kenosha jails, ¶¶5-6. The unfortunate Lewis had Gray as a cellmate, spilled his guts to him, and Gray duly reported the conversations. But the trial court found that there was in fact no agreement with respect to Gray, “that Gray’s initiation of contact with Lewis was not at the behest of either the federal or state government,” “that Gray was under no compulsion to report what he heard” from Gray, and “that what Gray did was totally of his own volition,” ¶15. Lewis therefore argued that no agreement between government and informant was necessary. Instead, an objective standard applies: if the government “should have known” the informant would report the statements then the government shouldn’t place the informant in the cell with a represented defendant, ¶18. It is that position the court rejects:

¶23      We adopt the rationale of Surridge. The fact that the government might know an informant “hopes” to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained. If there is just “hope” and nothing else, then the informant cannot be construed to be a government agent, eliciting a statement in violation of the Sixth Amendment. As the court in United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982) stated, “We refuse to extend the rule of Massiah and Henry to situations where an individual, acting on his [or her] own initiative, deliberately elicits incriminating information.”

…

¶25      … To sum up the discussion, we quote the Surridge court again:

[W]e do not think the police have a duty to bar visits with potential informants; indeed such a requirement would be unfair to prisoners. Also, when a person offers to assist the police, we do not think the police must try to stop the person from providing assistance. As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the [F]ifth or [S]ixth Amendments.

Surridge, 687 F.2d at 255 (emphasis added). The italicized portion says it all and is the holding of this court.

publication orders, 4/26/10

2008AP001763 CR 2010 WI App 47 State v. Benjamin W. Mercer

2008AP002980 CR 2010 WI App 48 State v. Karon M. Asmus

2008AP002981 CR 2010 WI App 48 State v. Karon M. Asmus

2009AP000140 CR 2010 WI App 49 State v. Clifford D. Bvocik

2009AP000371 2010 WI App 50 Keith J. Johnson v. Washburn County

2009AP000385 CR 2010 WI App 51 State v. Robert A. Tomaszewski

2009AP000429 CR 2010 WI App 52 State v. Carl A. Lewis, Jr.

2009AP000559 CR 2010 WI App 53 State v. Mitchell D. Pask

2009AP000564 2010 WI App 54 DeBoer Transportation, Inc. v. Charles Swenson

2009AP000617 2010 WI App 55 Allen Goudy v. Yamaha Motor Corporation, USA

2009AP000786 CR 2010 WI App 56 State v. Dionny L. Reynolds

2009AP000817 CR 2010 WI App 57 State v. Travis Joe Brimer, Jr.

2009AP000884 2010 WI App 58 Hung Nam Tran v. Thomas Speech

2009AP001008 2010 WI App 59 Thomas L. Fields v. American Transmission Company, LLC

2009AP001132 2010 WI App 60 State v. Tory L. Rachel

2009AP001568 CR 2010 WI App 61 State v. Thomas H.L. Barfell

Questions Presented:

May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?

SCOTUS docket: here. Scotusblog, briefs: here.

This have anything to do with SPD-related practice? Not really, strictly speaking. But, isn’t the problem at least somewhat reminiscent of the recurrent one based in State v. Webb, 160 Wis.2d 622, 628, 467 N.W.2d 108 (1991):

We do not decide the question of whether there was error at the preliminary hearing in this case, because we hold that a conviction resulting from a fair and errorless trial in effect cures any error at the preliminary hearing. Accordingly, a defendant who claims error occurred at his preliminary hearing may only obtain relief before trial. Thus, no relief is available to the defendant in the case at bar.

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

Controlled Substance – Prescribed by Out-of-State Doctor
Possession of marijuana, prescribed by California doctor under laws of that state, may be prosecuted in Wisconsin: though an exception exists for possession obtained by prescription from a “practitioner,” § 961.41(3g), the practitioner must be licensed in Wisconsin, § 961.01(19)(a). ¶10.

Well, the court’s conclusion might be grammatically sound, but its terse discussion does leave a bit to be desired. The obvious problem: anyone obtaining a controlled substance per perfectly legal script issued in another state is guilty of possession in Wisconsin? Seems like an absurd result. At a minimum, the conundrum ought to create sufficient ambiguity to require research into the legislative history. If anyone’s interested enough to undertake the task, start with § 161.01(19) (1973-74), and keep in mind that it was a uniform act (“Uniform Controlled Substances Act,” which of course means a decent likelihood of finding relevant foreign authority). But give the court its due. Here’s the factual background the appellate court was constrained to accept:

¶3 At the trial to the circuit court, Kettner stipulated he possessed the marijuana and pipes. However, he presented a typewritten medical authorization to possess marijuana, signed by a licensed California medical doctor. The circuit court received the authorization as a marked exhibit and accepted it “as a genuine document issued by Dr. Ironside.” Kettner argued he legally possessed the marijuana pursuant to Wis. Stat. §§ 961.41(3g) and 59.54(25).

Hmm. That wouldn’t be Robert T. Ironside, would it? The court of appeals’ (unspoken) skepticism (if that is indeed what it is) about the validity of the script might explain its indifference to detailed analysis. On the other hand, the Town had abundant opportunity to investigate the prescription and there is absolutely nothing in the opinion to suggest doubt as to its validity. Indeed, one Paul A. Ironside, Jr., a thoracic surgeon licensed in Cali and no known relation to  Robert T., is on staff at “The Hemp and Cannabis Foundation.” That Kettner’s script was as legit as one for Allegra only throws into high relief the court’s scant attention to the implications of its holding. Which leaves another possible explanation for the court’s terse statutory-construction analysis: it went on to vacate the ordinance conviction anyway (because the Town ordinance didn’t track the state statute, and instead didn’t require a Wisconsin license). But in that event, the wiser course would have been simply to pass over the statute, because of its patent irrelevance. Indeed, you might argue that the statutory-construction discussion is really just dicta for that very reason.

Counsel – Sanctions
Counsel’s “brazen misrepresentations, which are not supported by record citations,” were “knowing” in nature and support a penalty of $200, along with award of costs to Kettner, ¶¶13-15.

Fair to say the court was mightily irked by what it regarded as intentional misconduct. And maybe the misconduct was undeniable. But at some point, doesn’t counsel have the right to at least an opportunity to be heard before the court starts trimming financial assets? Why should counsel’s right to due process be less than anyone else? See, for example, Howell v. Denomie, 2005 WI 81, ¶17 (“in order to determine that an appeal is frivolous, the court of appeals is required to give notice that it is considering the issue. It must also give an opportunity to respond to the issue before a determination is made.”); and Johnson v. Cherry (Appeal of Clinite), 7th Cir No. 04-3562, 9/6/05 (before imposing sanctions, in amount of $1300, against attorney for alleged misconduct, court was required to afford “notice of the specific conduct for which it was contemplating sanctions,” and opportunity to mount defense).

Questions Presented:

California Civil Code sections 1746-1746.5 prohibit the sale of violent video games to minors under 18 where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors. The respondent industry groups challenged this prohibition on its face as violating the Free Speech Clause of the First Amendment. The court of appeals affirmed the district court’s judgment permanently enjoining enforcement of the prohibition. The questions presented are:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

SCOTUS docket: here. Mike Sacks summary, here. Scotusblog, summary: here; briefs, etc.: here. Althouse: “Who could have imagined that one day the Supreme Court would take a case called Schwarzenegger… and Schwarzenegger would be arguing for preventing young people from viewing graphic depictions of violence?“

court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski

IAC Claim – TPR
“The decision not to emphasize events preceding the current termination petitions was a reasonable strategic choice and does not constitute ineffective assistance of counsel,” ¶11. Separately: counsel did not perform deficiently in his efforts to obtain Keri H.’s client file from predecessor counsel, and then securing an adjournment to prepare for trial, ¶13; nor in his efforts to notify Keri H. of the initial appearance, ¶14.

Mootness – TPR – Child Turning 18 Post-Judgment

¶16      Keri’s assertion of the mootness doctrine is improper in this case. Keri uses the mootness doctrine as a sword to attack the order below, arguing changed circumstances have rendered the order irrelevant. However, the mootness doctrine is one of judicial abstention, not appellate action. “Generally, if a question becomes moot through a change in circumstances, it will not be determined by the reviewing court.” State v. Seymour, 24 Wis. 2d 258, 261, 128 N.W.2d 680 (1964). Thus, even if we agreed with Keri that Marissa’s case has become moot by Marissa reaching the age of majority—a holding that would require us to ignore both the effect of the termination on Keri and Marissa’s inheritance rights under Wis. Stat. § 852.01, see Black v. Pamanet, 46 Wis. 2d 514, 516, 175 N.W.2d 234 (1970), and the fact that the order was entered when Marissa was still a minor—we would dismiss her appeal, not reverse the order. Keri is not entitled to the remedy she seeks and, having already reached the merits of Keri’s appeal, we affirm.

court of appeals decision (1-judge; not for publication); for Knapp: David M. Helmke; BiC; Resp.

Harmless Error – Prior Conviction
Inadmissible testimony suggestive of a prior conviction (Knapp’s statement upon arrest “that he was going to jail again”) was non-prejudicial: Knapp himself testified he had a prior conviction and nothing in the inadmissible testimony indicated the nature of the prior.