On Point

7th Circuit decision

Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.

2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.

That Gentry was pushing a wheelbarrow at the time didn’t establish reasonable suspicion: “the officer that approached Gentry was told nothing more than that the ‘suspicious person’ was pushing a wheelbarrow, which is not a crime.” The court also stresses that Gentry made no attempt to flee, but instead put down the wheelbarrow and began walking toward the officers.

3. Pat-down of Gentry was illegal, because there was no articulable suspicion he was armed and dangerous. Nothing in “Gentry’s demeanor or actions indicated he was engaged in wrongdoing much less that Gentry was a threat to the safety of the officers or the public.”

4. Even had it been lawful, the frisk produced a garage door opener, an item that under the circustances should have been immediately returned to Gentry instead of being used to investigate an unreported crime.

Even if the officer who searched Gentry had a basis to conduct a Terry stop and a pat down, the officer engaged in an unconstitutional seizure when he retrieved the garage door opener from Gentry’s pocket and did not immediately return the garage door opener to Gentry. The officer testified that he felt a bulge in Gentry’s clothing that “could have been a stun gun. . . .” (App. at 63). However, once the officer discovered that the item in Gentry’s pocket was a garage door opener and not a weapon, he had no basis to seize or retain it, much less to drive off with it to investigate whether Gentry had committed crimes. United States v. Place, 462 U.S. 696, 716, 103 S.Ct. 2637, 2649 (1983) (stating that “[w]hile Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seize personal property, such as luggage, independent of the seizure of the person”). A garage door opener is an item that might commonly be found on a law-abiding person and does not suggest any wrongdoing. …

Search of Personal Containers
Search of wheelbarrow contents, partially covered by raincoat, was impermissible:

… The record reflects that Gentry placed a raincoat on top of the wheelbarrow partially covering the items, which indicates some expectation of privacy with respect to the items in the wheelbarrow. …

… The mere fact that the wheelbarrow did not have a closed lid does not mean that its contents could not be protected by the Fourth Amendment. The record indicates that the yellow raincoat placed on top of the wheelbarrow only partially covered its contents. However, the record also indicates that the visible items were not such that they provided the officers with a reasonable basis to conclude that Gentry had engaged in wrongdoing. … A reasonable suspicion could justify a limited Terry stop, and perhaps a limited detention of the wheelbarrow, if officers had reason to believe that it contained stolen items. See, e.g., United States v. Marrocco, 578 F.3d 627, 633 (7th Cir. 2009) (indicating that in certain situations law enforcement can conduct a limited detention of luggage). A reasonable suspicion is not enough to justify a search of the wheelbarrow. To search the wheelbarrow, the officers needed probable cause and a warrant. …

In terms of the larger principle — warrant required to search container — is the result reconcilable with State v. Tamara C. Limon, 2008 WI App 77, ¶¶27-35 (search of closed purse permissible on reasonable suspicion)? This issue wasn’t raised in Limon, and so it doesn’t represent adverse precedent on the point.

Inevitable Discovery
Inevitable discovery requires government proof by preponderance of the evidence that the challenged evidence ultimately would have been discovered, by lawful means. In this instance, linkage of the defendant to a crime was the very result of an illegal search, and the necessary showing therefore can’t be made.

Ineffective Assistance
The record reflects that the various searches were unconstitutional, from which it follows that: a motion to suppress would not have been futile; and, failure to file such a motion was beyond the pale of objectively reasonable strategy.

Waiver of Waiver
Respondent’s failure to argue forfeiture in its appellee brief waived the argument.

court of appeals decision (3-judge; not recommended for publication); Resp. Br; Reply Br

Exculpatory Material
Defense had access to assertedly suppressed exculpatory material, hence no Brady violation.

Effective Assistance
Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted to do so. Therefore, his claim fails.”

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br.

Sentencing – Guidelines, General Purpose

¶7        While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality, social circumstances and general pattern of behavior,’” State v. Slagoski, 2001 WI App 112, ¶7, 244 Wis. 2d 49, 629 N.W.2d 50, the sentencing guidelines do not add to the accuracy of information in any of these categories. There are three principal reasons for the use of sentencing guidelines:

[I]t will remedy an unjustifiable disparity of sentences imposed by Wisconsin trial judges for like offenses, it will correct the public’s perception that there is such disparity and it will neutralize the perceived threat that if sentencing guidelines are not developed and promulgated by the court system, the Wisconsin legislature will enact a set of “determinate” sentences ….

In Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 693, 335 N.W.2d 868 (1983). None of these reasons have anything to do with insuring the accuracy of information a court relies upon at sentencing.

Sentencing – Guidelines, Retroactive Repeal, § 973.017(2)(a)

Because § 973.017(2)(a) did not confer any right on defendants, its repeal applies retroactively so that sentencing court failure to consider guidelines no longer supports relief:

¶8        Barfell argues against the rule in Wisconsin that procedural statutes are to be applied retroactively and substantive statutes are to be applied prospectively. See Trinity Petroleum, Inc., 302 Wis. 2d 299, ¶40. In Trinity Petroleum, Inc., the supreme court reminded us, “[A] procedural law is that which concerns the manner and order of conducting suits or the mode of proceeding to enforce legal rights and the substantive law is one that establishes the rights and duties of a party.”  Id., ¶41. Applying this definition to the now repealed Wis. Stat. § 973.017(2)(a), we conclude that it was a procedural statute, it concerned what a court was to do at sentencing, the court was to consider “sentencing guidelines adopted by the sentencing commission.” The requirement did not establish a right running to Barfell, rather it was a procedural attempt to further the State’s goals. While it did impose a duty on the court, the court was not a party to the action; therefore, it was the repeal of a procedural statute and the repeal is to be applied retroactively.

How quick we forget. Not three years ago, State v. Vincent T. Grady, 2007 WI 81, ¶35 said this: “The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation. ‘Individualized sentencing, after all, has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.’ Gallion, 270 Wis. 2d 535, ¶48.” Whatever the downside to a guideline regime, its termination carries its own costs, namely “the corrosive effect of” sentencing disparities. And now the court of appeals is saying, with a straight face, that the very cornerstone of criminal justice jurisprudence, individualized sentencing, is for the state and not the individual’s benefit?

And does it matter that the sentencing commission is under the delusion, “Sentencing courts are still required to consider the guidelines under § 973.017 (2)(a)”? Lots of other good stuff on that site, related to guidelines and exercise of sentencing discretion. Then, too, long as the court bothered to cast an eye on In re Guidelines, it might have wanted to continue its gaze to p. 696, where the supreme court emphasizes that guidelines “can be helpful to a judge at the starting point of the exercise of his or her discretion in determining an appropriate sentence for a particular offender.” Gallion, too, has a bit to say on the subject, ¶47:

Because we recognize the difficulty in providing a reasoned explanation in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels’ recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning. Courts may also consider information about the distribution of sentences in cases similar to the case before it. We note that Wis. Stat. § 973.017(2)(a) requires sentencing courts to consider any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committee and to consider in the future any applicable guidelines adopted by a sentencing commission.

Still more good stuff in ¶43 (“In addition, the legislature has mandated consideration of applicable mitigating or aggravating factors.”). Is it irrelevant that the author of this opinion communicated transparent disdain for Gallion, in State v. Wallace I. Stenzel, 2004 WI App 181, ¶¶6-9? You be the judge.

This isn’t to say that the result is necessarily wrong, just that the court’s analysis is much too facile. Maybe you could say that the guideline regime was merely a method meant to enforce the particular defendant’s right to individualized sentencing, and was procedural on that account. E.g., State v. Michael J. Parent, 2006 WI 132, ¶32 n. 8 (statute simply prescribing method, or “legal machinery,” used in enforcing right or remedy is procedural). But that’s a bit different than baldly asserting that the statute was procedural because it furthered the state’s goals. Ultimately, mootness probably would have precluded relief anyway. As the court goes on to stress, ¶9, the sentencing commission’s defunding made the guidelines out of date even at the time of Barfell’s sentencing. Thus: “Without sentencing guidelines, now it is impossible to order Barfell resentenced and to have the sentencing guidelines considered. Nothing we order can have any practical legal effect. Therefore, the issue is moot.”

Ex post facto considerations aren’t triggered by retroactive effect: repeal “does not criminalize innocent conduct, increase the penalty for burglary, or deny Barfell a previously existing defense. Therefore, the retroactive application of the repeal of the statute will not offend the ex post facto clause of the federal and state constitutions,” ¶13.

Statutes – Construction – § 990.04

¶11      The “rights of action” referred to in Wis. Stat. § 990.04 are not individual rights defined and protected in the constitution or statutes. Rather, ‘“rights of action’ are grounds of liability.” Whalen v. Strong, 230 A.D. 617, 621, 246 N.Y.S. 40 (N.Y. App. Div. 1930). [5]

[5] The definition from Black’s Law Dictionary 1349 (8th ed. 2004) is in agreement:

right of action.  1. The right to bring a specific case to court.  [Cases:  Action 1, 2. C.J.S. Actions §§ 2–9, 11, 17, 21, 26, 31–33, 36.]  2.  A right that can be enforced by legal action; a chose in action.  Cf. CAUSE OF ACTION.  [Cases: Action 1, 2; Property 5.5.  C.J.S. Actions §§ 2–9, 11, 17, 21, 26, 31–33, 36; Property § 22; Trading Stamps and Coupons § 2.].

USSC decision

Armed Career Criminal Act
State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1).

There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice.

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

Traffic Stop – Reasonable Suspicion – § 346.072(1)
“We are satisfied that a reasonable officer could reasonably suspect that, by driving 28 to 30 miles per hour in a 25-mile-per-hour zone within 2 to 3 feet of the squad cars, Statz did not slow down, maintain a safe speed for traffic conditions, and operate at a reduced speed until completely past the squad cars, as  required by Wis. Stat. § 346.072(1).”

court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.

Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:

Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77, ¶26, 291 Wis. 2d 673, 717 N.W.2d 74, for the proposition that an appellate court may review an alleged error that was not properly preserved in the circuit court if it raises a question of sufficient public interest and involves purely a question of law. While we recognize our authority to directly address waived claims of error in the circumstances Anderson describes, the normal procedure is to address them in the framework of ineffective assistance of counsel. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31. We see no reason to depart from the normal procedure here. In any event, we note that in this case it does not matter whether we proceed as did the Anderson court or employ the ineffective assistance of counsel framework.

To be sure, Carprue does say that waived issues normatively fall under the IAC rubric. But the more recent case, Anderson, allows that the “court may consider the alleged [unpreserved] error on review when the error raises a question of sufficient public interest to merit a decision on appeal and the error raises a question of law that has been briefed by both sides and does not involve any questions of fact.” The court of appeals’ wave-of-the-hand dismissal of this authority doesn’t help litigants determine the limits of the waiver rule. For that matter, if you take this footnote at face value, then the court has just abrogated both plain-error and interest-of-justice review. Safest course of action, then, is to litigate all waived issues as IAC claims, wasteful and inefficient as that might be. At the same time, keep in mind that Anderson involved a claim (denial of right to counsel and personal presence) not subject to waiver, 2006 WI 77, ¶¶35-64. Fair to say, then, that issues involving personal colloquies fall outside “the normal procedure.”

Appellate Procedure – Standard of Review – Ineffective Assistance of Counsel

¶13   In order to establish ineffective assistance of counsel, Marinez must show that counsel’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Our analysis in this case focuses on whether counsel performed deficiently. To the extent the circuit court made factual findings regarding counsel’s performance, we uphold these unless clearly erroneous, but whether counsel’s performance was deficient under the constitutional standard presents a question of law, which we review de novo. See State v. Doss, 2008 WI 93, ¶23, 312 Wis. 2d 570, 754 N.W.2d 150. Where, as here, the basis for the assertion of deficient performance presents an issue of statutory construction and an issue of the correct application of the due process guarantee, our review of these issues is de novo. See Kenosha County DHS v. Jodie W., 2006 WI 93, ¶19, 293 Wis. 2d 530, 716 N.W.2d 845.

Evidence – § 908.08(5), Videotaped Statements of Children and Closing Argument
Neither due process nor § 908.08 precludes playing during closing argument a child’s video statement that was properly admitted into evidence under the statute:

¶18   The plain language of Wis. Stat. § 908.08 establishes a procedure and substantive standards for admission of an audiovisual recording of a child’s oral statement as evidence at the trial. There is nothing in the statute that suggests it is intended to address the use of this evidence during closing argument. Section 908.08(5) prescribes how the child’s availability to testify—a requirement of § 908.08(1)—is to be implemented: both the party presenting the video statement and any other party have the right to question the child immediately after the video statement is shown to the jury. With respect to the defendant, the evident purpose of this requirement is to give him or her the right to cross-examine the child immediately after the jury has seen and heard the video statement—just as if the child had directly testified to the statement at trial. As the statute requires, Marinez had that opportunity.

The court rejects a separate due process argument that the trial was “fundamentally unfair because a video of a witness’s statement is so much more powerful than reading a transcript of the statement or recounting the statement from notes,” ¶22, distinguishing State v. Anderson, 2006 WI 77 (jury-room viewing, during deliberations, of victim’s videotaped interview, overturned):

¶25   While the Anderson court’s analysis recognizes a significant distinction between video statements and other types of exhibits a jury views in the jury room, that analysis does not support Marinez’s position that no video statements may be played at closing. The Anderson ruling requires the video to be played in open court precisely because the court, with the input of counsel, can thereby control the playing of the video for the jury. Allowing the court to exercise its discretion to control the playing of video statements during closing argument is consistent with Anderson.

The matter of showing a properly admitted taped statement during arguments is thus committed to trial court discretion:

¶31   However, while the potential power of playing video statements at closing argument requires caution in their use, it does not warrant a wholesale prohibition of use in this context. The court’s discretion in controlling closing argument is sufficient to protect defendants against unfair uses in a particular case. The circuit court may control the length of the portions played in closing argument, both to avoid unduly long closing argument and to prevent an undue emphasis on the recorded testimony over the in-court testimony. In addition, the court may control the selection of portions of a recorded statement to avoid misrepresentation. See Lenarchick, 74 Wis. 2d at 458 (A circuit court may control the reading of a transcript at closing argument so it is not unduly time consuming and so that the portions selected do not give an undue emphasis.).

Marinez didn’t challenge the editing or length of the taped showing, ¶¶22, 33; his claim was categorical, which means simply that a trial court may but is of course not compelled to allow a tape to be shown during closing.

Counsel – Litigating IAC Claims – Trial Counsel’s Testimony re: Second Thoughts
¶32 n. 7:

Marinez points out that defense counsel testified at the Machner hearing that if he had to do it over again he would have objected to the State’s playing A.M.’s video statement during closing argument. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). However, the proper inquiry is whether defense counsel’s performance is objectively reasonable in the circumstances of the case, and counsel’s testimony on his or her thinking is not dispositive. State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d 648, 630 N.W.2d 752. It is not unreasonable for defense counsel to fail to object based on legal theories that are incorrect.

Keep in mind, though, Kimbrough’s caution that counsel’s testimony is “evidence to be considered along with other evidence in the record that a court will examine in assessing counsel’s overall performance,” 2001 WI App 138, ¶35. Is anything left of the Harris v. Read, 894 F.2d 871 (7th Cir. 1990) idea that a court reviewing an ineffective assistance claim may “not construct strategic defenses which counsel does not offer”? Hard to say.

Counsel – Deficient Performance – Jury Deliberations: Request to Have Testimony Read Back
Counsel’s strategic decision to ask the trial court to instruct the jury to rely on its collective memory, in response to a request to have the complainant’s testimony read back, was reasonable:

¶1   We conclude defense counsel made a reasonable strategic decision in asking the court to instruct the jury to rely on its collective memory. The specific questions the jury referenced had, overall, answers that were inculpatory to Marinez. Defense counsel could reasonably decide that the jury’s request meant it wasn’t sure how A.M. had answered these questions and could decide it would be to Marinez’s disadvantage to have the answers read. In addition, there were answers to other questions that indicated Marinez made her do something scary to her in her bedroom that involved him undoing his zipper. Defense counsel could reasonably decide that, even if the court would allow A. M.’s entire testimony to be read, which would include the last two favorable answers, that would not outweigh the disadvantage of hearing the unfavorable answers. Thus, it was a reasonable strategy to propose that the court instruct the jury to rely on its collective memory.