court of appeals decision (1-judge; not for publication)
Appellate Procedure – Contemporaneous Objection Rule
Waiver of issue on appeal where objections lodged at trial “were not specific enough to put the trial court on notice” of the objection posited on appeal; motion for mistrial was not contemporaneous with occurrence of error and therefore “came to late” to be raised on appeal.
court of appeals decision (1-judge; not for publication); for Trelijah: Shelley Fite, SPD, Madison Appellate
Delinquency –Lifted Stay, Secure Detention
Trial court’s lifting stay of 4-days’ secure detention “was based on a thorough consideration of the goals of the juvenile justice code, both at the time of disposition and at the time the stay was lifted.”
court of appeals decision; pro se; Resp. Br.
Appellate Procedure – Record Document not Included on Appeal
¶8 n.7:
To any extent that it is relevant to our analysis, we assume that the missing transcript of the March 23, 2009 hearing on the merits supports the circuit court’s ruling. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993) (On appeal, we are “bound by the record as it comes” to us and “when an appellate record is incomplete in connection with an issue raised by appellant, we must assume that the missing material supports the circuit court’s ruling.”).
Statutes – Construction – Admin Code Provision
Construing an administrative code provision “out of harmony” with the statutes would be “a mere nullity,” ¶21 n. 14, citing Seider v. O’Connell, 2000 WI 76, ¶26 (which itself also says, at the pinpoint cite: “Our first duty is to the legislature, not the agency. … Even if we accorded the agency that promulgated a rule great weight deference, we would not uphold a rule that directly contravenes the words of a statute.”).
SVP – Confinement Conditions – Minimum Wage Law
SVP “patients” aren’t required to be paid minimum wage rates for their “therapeutic labor,” ¶¶10, et seq. Sanders v. Hayden, 544 F.3d 812 (7th Cir. 2008); Bennett v. Frank, 395 F.3d 409 (7th Cir. 2005), followed.
State v. Mitchell D. Pask, 2010 WI App 53; for Pask: Jefren E. Olsen, SPD, Madison Appellate; Resp. Br.; Reply Br.
¶1 … (W)hen there is evidence that a defendant has an intention to take a child to a place that is partially screened or hidden from view, a jury may find that it is with the purpose to take the child away from public safety. Indeed, any place that removes the child from the public’s protection to a place less likely to be detected by the public would suffice as being a “secluded place.” …
State v. Koenck, 2001 WI App 93 explicated, in that child need not be “completely removed” from view, ¶¶14-15.
¶16 From this definition we conclude that a screened or hidden place (partially or completely) would qualify as a “secluded place.” And a place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection. …
The evidence is held sufficient, notwithstanding that Pask took the child to an “open-sided” park shelter:
¶20 In this case, two girls testified that Pask offered Alexxus candy to lure her to another area of the park by the park shelter. The jury saw pictures of the park shelter area where Pask wanted to take her. And while, looking at the pictures, anyone could see that the park shelter is open-sided and is primarily not hidden from onlookers. The same pictures show that the view is partially screened or hidden in places. These pictures also show that the shelter itself was partially blocked by landscaping, a sign, and support pillars, any one of which the jury could infer was sufficient to hide a nine-year-old girl behind for a period of sexual contact. The jury also saw that the topography of the area surrounding the shelter could have provided other places to hide the girl. Therefore, the jury had all the evidence it needed to find that the shelter area was “hidden or screened from view or remote from others.” We affirm.
State v. Benjamin W. Mercer, 2010 WI App 47; prior history: Certification, 7/1/09, rejected 9/10/09; for Mercer: Steven P. Sager
A person can knowingly possess images of child pornography while viewing them on a computer, even though they aren’t stored on the hard drive.
¶29 Our impression of these cases is that courts are more concerned with how the defendants got to the website showing child pornography, than what the defendants actually did with the images. In all of the cases, the defendant reached out for the images. This fits with the definition of constructive possession: the user could save, print or take some other action to control the images, and the user affirmatively reached out for and obtained the images knowing that the images would be child pornography as shown by the pattern of web browsing. This may occur whether there is cache evidence or not. And that is the main point to be made here.
¶29 At oral argument, the State provided the following explanation of how viewing images and web browsing can constitute reaching out for images by describing the difference between “push technology” and “pull technology.” In push technology, the receiver does not request the materials. The cyber equivalent is spam. The real world equivalent would be like walking on a route, which you cannot change, that has a newsstand displaying risqué magazines for passersby. As the State explained, people confronted with push technology “are not asking to see it, but it’s there to view.” In contrast, pull technology is where the receiver is asking for the materials. The cyber equivalent is clicking on a button and asking something to come to you. Similarly, the real world equivalent would be like writing to a company and asking it to send you its marketing literature.
¶30 This distinction makes sense to us, because in pull technology the user knows what he or she is looking for and is making a request to obtain that material. So we conclude that an individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. Whether the proof is hard drive evidence or something else, such as the monitoring software here, should not matter because both capture a “videotape” of the same behavior. And images in either place can be controlled by taking actions like printing or copying the images.
Short version: it’s “whether the defendant has reached out for and controlled the images,” ¶32. Here, the evidence was sufficient, given that monitoring software revealed that Mercer entered search strings associated with child pornography; that the images couldn’t have been “pop-ups”; that no viruses were found; and that the images portrayed young girls in (partially) nude, sexually explicit poses, ¶¶36-41.
State v. Carl A. Lewis, Jr., 2010 WI App 52; for 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 – 6th 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.
Berghuis v. Smith, USSC No. 08-1402, 3/30/10
Defendants have Sixth Amendment right to impartial jury drawn from fair cross section of community. To establish prima facie violation of this “fair-cross-section,” requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Various methods have been proposed to test underrepresentation, and all have their “imperfections.” Smith is not able to satisfy his burden of showing systematic exclusion.
The Court also notes that for purposes of 2254 habeas review states retain broad discretion “prescribe relevant qualifications for their jurors and to provide reasonable exemptions.”
Attack on composition of venire panel, filtered through the fine mesh of habeas. After some technical stuff re: methodology (“absolute disparity, comparative disparity, and standard deviation”), the Court allows that where the underrepresented distinctive-group is but a small percentage of the jury-eligible population the Court can do little more than throw up its hands as to “the appropriate method or methods for measuring misrepresentation.” And because the burden is on the defendant, guess where that leaves you. But if nothing else, the case serves as reminder that there is a “fair-cross-section requirement” under the 6th A. Doesn’t appear to be terribly much Wisconsin litigation (is that because our selection process is so fair?), the leading exception being State v. Pruitt, 95 Wis. 2d 69, 289 N.W.2d 343 (Ct. App. 1980) (young adults deemed “distinctive group,” and although underrepresented on particular array, that wasn’t enough: disproportionate representation must be shown over period of time. Quaint, at least from a certain perspective.). The field of jury selection litigation is now occupied more or less by Batson, which makes sense given its less-daunting focus on the particular jury at hand.
court of appeals decision (3-judge; not recommended for publication); for Lidell: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Ineffective Assistance
Failure to impeach complainant with various prior inconsistent statements either adequate strategy or non-prejudicial; failure to call witnesses proper strategy, where attorney interviewed them and determined “that their demeanor would not help the defense.”
