On Point

court of appeals decision (1-judge; not for publication); Lora B. Cerone, SPD, Madison Appellate

TPR – Stipulation, Grounds
Signed stipulation to grounds, which effectively withdrew jury demand, upheld where trial court addressed parent in court and on record, and she “acknowledged her understanding clearly, repeatedly, and without equivocation.”

TPR – New Evidence
Postdisposition change in placement affect “advisability of the original adjudication” and therefore didn’t amount to “new evidence” under  § 48.46:

¶25 We conclude that the trial court did not erroneously exercise its discretion when it denied Wilvina’s Wis. Stat. § 48.46 motion for a rehearing based on new evidence.  There simply is no indication that the change in adoptive resource affected the advisability of the trial court’s adjudication terminating Wilvina’s parental rights.  The court clarified at the post termination hearing that its adjudication addressed the children’s best interests and the termination of Wilvina’s parental rights based on its finding that Wilvina is an unfit mother who would not meet the conditions of return within the next nine months.  The court recognized that it had also made a placement determination for the children, namely an “[a]doptive resource.”  However, as the trial court stated in denying Wilvina’s motion, “I have not heard any newly discovered evidence that affects the disposition.  It affects the placement, but not the disposition.”

court of appeals decision

TPR – Forfeiture of Jury Trial
Failure to appear at initial hearing and make timely request forfeited right to jury trial; trial court’s ultimate refusal to enter default judgment “did not return the case to the initial hearing stage or reinstate Luis’s right to a jury trial”; nor did filing of amended petition reset this clock; finally, the court suggests that denial of right to jury trial was, even if erroneous, harmless, because “(a) jury trial would not have led to a different outcome,” ¶35, given the strength of evidence on grounds—an odd aside, given that denial of right to jury is generally thought not subject to harmless error analysis.

court of appeals decision (3-judge; not recommended for publication); Randall E. Paulson, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply

Pre-Sentence Plea Withdrawal
Adverse findings of fact doom pre-sentencing plea withdrawal premised on claims: attorney rushed Watson into pleading out, but trial court accepted attorney’s testimony to contrary; and Watson hadn’t seen victims’ videotaped statements, but Watson knew through police reports and discussions with attorney nature of their allegations.

court of appeals decision; for Pittman: Kathleen M. Quinn; BiC; Resp. Br.; Reply Br.

Armed Robbery, § 943.32 – Dangerous Weapon
Although Rittman neither in fact possessed a dangerous weapon, his cautioning that no one would get hurt if the teller gave him money coupled with putting his hand in his pocket sufficed to prove the victim’s reasonable belief that he was threatening to use a dangerous weapon:

¶10      The statutes tell us in what is mostly a tautology that: “‘Reasonably believes’ means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.” Wis. Stat. § 939.22(32). In applying “reasonable belief” to the armed-robbery statute, Witkowski explains, as we have seen, that courts must consider “the circumstances of the individual case.” Witkowski, 143 Wis. 2d at 222, 420 N.W.2d at 422. Although Rittman tends to generalize the trial court’s finding of guilt by pointing out that the bank teller’s earlier involvement in bank holdups would make “understandable” “her belief that any bank robber is likely armed,” there is much more in this case than the mere overlay of experience:

•           Rittman’s note threatening harm;
•           his putting his only free hand in his pocket rather than keeping it out to scoop up the money he demanded;
•           his threat of harm if anyone tried to stop his getaway; and
•           his order to the teller to get down as he was escaping.

All of this combined to give the teller a reasonable belief that Rittman had a dangerous weapon with which he could “hurt” her if she did not do what he demanded. There was no need for the note to use the word “gun” or “bomb” to have the teller reasonably believe that she could be “hurt,” as the note threatened. Certainly, it would have been foolhardy for her to say to Rittman that she did not believe he could seriously hurt her because she did not see a gun and he did not specifically say he had one.

Hard to imagine why the court thinks publication necessary. Indeed, neither side requested publication. It’s long settled that armed robbery can be based on pretense; you don’t need an actual weapon, a hand in the pocket will do, or for that matter anything. (No sophomoric Mae West references, please.) In that broader sense this case adds absolutely nothing to settled caselaw. If there’s any factual permutation in relation to prior cases, it’s that Rittman didn’t explicitly say he had a gun, he merely implied as much. Does that minor permutation support publication, especially now that signed but unpublished opinions are citable?

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

“Booking Exception” to Miranda
Questioning to determine Pugh’s “true identity” fell within “booking exception.”

Sentencing Discretion
Sentence upheld where “well within maximum” and addressed “the three primary factors.”

court of appeals decision; for Carter: Melinda A. Swartz, SPD, Milwaukee Appellate; Resp. Br.; Reply Br.

Ex Parte Judicial Questioning, Pretrial Proceeding
Pretrial judicial questioning of a witness at return of a bench warrant worked deprivation of the defendant’s rights to counsel and presence at trial when the witness was subsequently impeached with statements she made during that exchange, ¶¶17-21. The error, though occurring but once and limited to impeachment, wasn’t harmless: “the testimony was important” given absence of physical evidence linking Carter to the crime (possession of a gun) and concomitant paramount importance of credibility determinations, ¶24. Moreover, the only percipient witness to link Carter to the gun “had a motive to lie, given that the police found him with the gun”; the State’s case wasn’t “as strong as it makes it out to be,” ¶¶28-29.

Etc. Harmless error inquiries are highly fact-specific by definition. This one tracks (¶23) the 6-factor test outlined in State v. Donald W. Jorgensen, 2008 WI 60, ¶23. A mystery remains: denial of counsel at a critical stage is generally thought to be not just error, but of “structural” magnitude; why is it appropriate to engage in harmless error analysis here? Partly because the supreme court said so albeit in a different context (ex parte communication with deliberating jury), State v. Lionel N. Anderson, 2006 WI 77, ¶74. The court of appeals discusses the problem in a footnote, ¶22 n. 5:

In Anderson, our supreme court recognized that “[o]rdinarily, the absence of counsel at a critical stage of the trial is not subject to harmless error analysis.” Id., 291 Wis. 2d 673, ¶74. However, the Anderson court went on to identify precedent establishing that there may be some circumstances involving a violation of the right to counsel when a harmless error analysis should be employed. See id., ¶75; see also United States v. Morrison, 449 U.S. 361, 365 (1981) (“[C]ertain violations of the right to counsel may be disregarded as harmless error.”). We agree with the parties that a harmless error analysis should be employed here. See Satterwhite v. Texas, 486 U.S. 249, 257-59 (1988) (utilizing harmless error test in review of a violation of Sixth Amendment right to counsel arising out of the erroneous admission of a doctor’s testimony which was based on a psychiatric examination conducted outside the presence of and without the advice of counsel); Moore v. Illinois, 434 U.S. 220, 222-23, 232 (1977) (remanding for harmless error determination following introduction of testimony identifying the accused from uncounseled line‑up conducted in violation of the Sixth Amendment).

Less here, perhaps, than meets the eye. Given that the issue (applicability of harmless error analysis) wasn’t joined or briefed, the precedential value of this footnote is doubtful. To be sure, Carter himself benefits: the case is now a fact-specific resolution which for that reason alone shouldn’t support discretionary review by the supreme court. Had the court of appeals derived a purely “legal” conclusion that the harmless error rule doesn’t apply, then the supreme court might be justified in taking review to determine more exactly the limits of Anderson. Point is, there’s no reason to accept the court’s conclusion in this case as the final word on whether harmless error applies to ex parte grilling of a witness. For an illustration of denial of counsel as structural error see State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999) (judicial communication during voir dire, court stressing absolute right to fair trial by impartial jury).

Evidence – § 904.04 Misconduct – Prior Gun Possession
On a charge of felon in possession of firearm, a witness’s testimony of hearing “stories about him before with guns” was admissible, to explain the witness’s “state of mind,” i.e., why she believed the object she saw was a gun, ¶¶34-39.

Not clear, to be blunt, what the court is driving at: “Here, testimony related to Felicia’s state of mind was relevant to her perception that Carter had a gun during the incident,” ¶37.  That Felicia had heard “stories” might explain why she thought the object was a gun, but it doesn’t make it more likely that it was, in fact, a gun. Isn’t that what counts? “Heard stories”? And that is proof of what, exactly? When all is said and done, we’ve come a long way from the pronouncement in Thompson v. State, 83 Wis.2d 134, 144, 265 N.W.2d 467 (1978): “The cases dealing with other gun evidence are almost uniform in holding that it is error to introduce possession of a gun which was not involved in the crime.” Or maybe it’s still wrong to introduce actual proof of another gun, but now OK to introduce “stories” about it.

court of appeals decision; for Lee: Devon M. Lee, SPD, Madison Appellate; Resp. Br.; Reply Br.

Sentence Credit – Wisconsin Custody under Foreign Parole Hold
Time spent in Wisconsin custody under a foreign parole hold must be credited against the Wisconsin sentence, even though it is ordered “consecutive to any previously imposed sentence.” Concern about “dual credit” is not yet “ripe,” because the foreign jurisdiction has not, and may never, execute the revocation. On the other hand, if credit is denied but revocation never occurs then the defendant will be denied credit altogether. “A sentence credit decision that effectively nullifies the sentence credit earned is improper,” ¶8.

¶1        … We conclude that until the other sovereignty has actually acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of “double credit” is not ripe. So the Wisconsin court, the only court the issue of credit is before, should grant credit. Otherwise, if the other sovereignty never acts, the offender would not receive credit where credit is due. We reverse because the trial and postconviction court in this case refused to order sentence credit.

Omitted from the block quote, so you’ll have to check it out yourself: an absolutely great opening line, from one of our finest judicial authors.