On Point

court of appeals decision (1-judge, not for publication) BiC; Resp.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

Traffic Arrest
Probable cause to believe Broad drove on public roadway, hence to arrest for OWI, where car was found off the road, Broad was in driver’s seat and admitted to being driver, car “was warm and running.”

Right to Testify
Violation of rule requiring contemporaneous colloquy as to waiver of right to testify at trial doesn’t lead to automatic reversal of conviction; remedy, instead, is to hold postconviction evidentiary hearing, which in this instance established knowing, intelligent, voluntary waiver of right to testify).

Assistance of Counsel
Counsel’s choice of a legitimate strategy, in preference to an alternative strategy, didn’t deprive Broad of his right to effective assistance of counsel.

court of appeals decision (1-judge, not for publication) BiC; Resp.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

Terry Stop
Reasonable suspicion found, based on citizen informant report of pickup truck slowly going back and forth down a residential street at 3:30 in the morning and “approaching various houses”; “lawful but unusual and suspicious driving may be the basis of an officer’s reasonable suspicion.”

State v. Travis Joe Brimer, Jr., 2010 WI App 57; for Brimer: Lora B. Cerone, SPD, Madison Appellate; Resp. Br.; Reply Br.

“The right against self-incrimination only applies at criminal proceedings or “other proceeding … where the answers might incriminate [the defendant] in future criminal proceedings.” Allen v. Illinois, 478 U.S. 364, 368 (1986) (citations omitted),” ¶7. Because a reconfinement hearing isn’t part of the criminal process, and because Brimer’s challenged statement was given under a grant of immunity against prosecution, he can’t argue that the statement’s use in determining length of his reconfinement violated the 5^th amendment.

¶12      In sum, we discern no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. See Struzik, 77 Wis. 2d at 221.

¶13      Because a reconfinement hearing is not a criminal proceeding, it is unnecessary to examine whether Brimer’s statements were compelled and incriminating “[A] State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.” Murphy, 465 U.S. at 435 n.7. Here the State did just that. It required Brimer to truthfully account for his drug test failure as a condition of his extended supervision, and immunized him against using the statement in criminal proceedings. Therefore, there was no Fifth Amendment violation and Brimer’s attorney was not deficient for failing to object to using the statement at the reconfinement hearing.

As the court indicates, caselaw clearly established that revocation hearings were not part of the criminal process, therefore the right against compelled self-incrimination didn’t apply. The narrow question, then, is whether a reconfinement hearing is part of the criminal or the revocation case. But as the court acknowledges, ¶7 n. 2, 2009 Wis Act 28 abolished reconfinements: length of confinement is now determined administratively rather than judicially. The net result is that the holding likely will affect a very small number of cases.

Limited impact or no, the basic issue of applying the 5th outside the criminal process is recurrent. Brimer was given the standard warning that if he failed to cough up “truthful and accurate” information his ES would be revoked. So he admitted he’d sold cocaine while on ES, which was of course then revoked. ¶2. Heads you lose, tails you lose. Pretty clear, then, that his statement was compelled in a real-world sense. Not only did his admission help support revocation, it was also the largest factor in his reconfinement sentence, ¶3. However, it was (again, keeping with standard practice) given under grant of immunity, ¶6 n. 1—which means that in the 5^th amendment sense, the statement was not “compelled.” No possibility of criminal prosecution, no self-incrimination analysis, unless, of course, it was used against Brimer during a criminal case. And that is exactly what the court says: it wasn’t used in a criminal proceeding. It nonetheless remains true that an involuntary statement indeed may be excluded from an administrative proceeding, Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982) (“As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose”; involuntary statements thus excluded from use in police disciplinary proceeding). To be sure, the tactics used to extract Oddsen’s statement were aggravated, but the fact remains that his was not a criminal case. Someday the court may bother to explain just where the line is drawn between “coerced, involuntary confessions” that may, and may not, be used in a non-criminal setting.

State v. Dionny L. Reynolds, 2010 WI App 56; for Reynolds: Russell D. Bohach; BiC; Resp. Br.

Statement voluntary, following multiple interviews while in custody on unrelated offense:

¶45      Balancing Reynolds’ personal characteristics against the totality of the police detectives’ conduct, we note, first and foremost, that Reynolds voluntarily waived his Miranda rights before making his incriminating statement. Generally speaking, “giving the warnings and getting a waiver has … produced a virtual ticket of [a statement’s] admissibility.” See Missouri v. Seibert, 542 U.S. 600, 608-09 (2004). While Reynolds argues that the statement itself was involuntary, he does not argue that the waiver was involuntary. Nor could he successfully make such an argument given his age, education, experience in the criminal justice system, and the fact that he had waived his rights on five previous occasions over the prior seven-day period. “[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984). And there is nothing special about this case that transforms it into one of those rare cases.

…

¶50      Detective Spano merely made an appeal to Reynolds’ conscience and in doing so was not overly manipulative—especially in light of other interview practices which have withstood attacks on the voluntariness of confessions. …

¶51      Reynolds did not make an incriminating statement until after being informed of and waiving his Miranda rights. This is not an instance where a defendant chose to exercise a right and was then approached by officers for questioning. Reynolds—an adult with an extensive criminal background, who was literate in the English language, and who had been advised of his rights on at least five different occasion in the seven days leading up to his confession—indicated he understood his Miranda rights and waived those rights before confessing to shooting Agent Balchunas. When we view that fact in combination with Reynolds’ other personal characteristics and the totality of the detectives’ behavior leading up to his confession, we conclude that his confession was voluntary and not the result of coercive police conduct.

Hard to see the need for publication. Especially now, when you can cite unpublished decisions for persuasive effect. Fact-specific, settled law.

court of appeals decision (1-judge; not for publication); Susan E. Alesia, Madison Appellate

Competency
Circuit court erred in not granting request for competency hearing, based on some jibberjabber about the PD and cost; plus circuit court wrong to limit competency hearing to those few cases where person “doesn’t have a clue what’s going on.”

(Snark: who bears costs when the court doesn’t have a clue what’s going on?) Trial counsel, it bears noting, did precisely what she was obligated to do: explain to the trial court that her client had been diagnosed with a disorder, that a prior psychological report documented his limited cognitive abilities, and that a hearing should be held at which the doctor who prepared this report would testify. It goes unmentioned by the court of appeals here, but there is a potential question as to whether counsel exceeded the boundaries laid down in State v. Jerry J. Meeks, 2003 WI 104 (“an attorney’s opinions, perceptions, and impressions of a client’s competency to proceed are protected by the attorney-client privilege,” ¶40), which arguably limits counsel to “merely” raising competency without explaining “reasons for raising the issue or the opinions, perceptions, or impressions that form the basis for his or her reason to doubt the client’s competence,” ¶46. If Meeks is read in that manner then it is unworkable, unless also read to require a competency hearing whenever requested by counsel. That is one way to read Meeks, but no appellate court has yet confronted the problem. If the present case is any indication, then counsel indeed must press for the hearing and provide the particulars, in possible contravention of Meeks.

decision below: 2009 WI App 156; for Carter: Craig M. Kuhary

Issues:

Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?

What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?

First crim-law grant in quite nearly four months and—surprise!—it’s a state’s appeal. This one deals with whether foreign “zero tolerance” suspension is purely administrative and thus ineligible for Wisconsin OWI enhancement.

7th Circuit decision

Habeas – Procedural Bar

… If a state court clearly and expressly states that its judgment rests on a state procedural bar and does not reach the merits of a federal claim, then we are unable to consider that claim on collateral review. Harris v. Reed, 489 U.S. 255, 263 (1989); Pole, 570 F.3d at 937. And we have repeatedly explained that where a state court reviews the claim for plain error as the result of a state procedural bar such as the Illinois doctrine of waiver, that limited review does not constitute a decision on the merits. …

Here, the Appellate Court of Illinois clearly and expressly relied on the state’s doctrine of waiver to decide Gray’s Apprendi claim. …  Accordingly, the state court’s conclusion that Gray had not established plain error was not a decision on the merits, and thus we agree with the district court that the claim is procedurally defaulted.

The bar may be overcome by showing “cause and prejudice.” Typically, as in this instance, an effort to make that showing is raised by a claim of ineffective assistance of counsel. But that claim was waived, because Gray failed to raise it on his state postconviction appeal.