On Point

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding:

¶11      The State submits that the computer-generated animation was intended as a demonstrative exhibit. The decision to admit or exclude demonstrative evidence is committed to the trial court’s discretion. ^[6] State v. Gribble, 2001 WI App 227, ¶55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a reasonable basis for its determination, this court must defer to the trial court’s ruling. Id. In exercising its discretion, the trial court must determine whether the demonstrative evidence is relevant, Wis. Stat. §§ 904.01 and 904.02, and whether its probative value is substantially outweighed by the danger of unfair prejudice under Wis. Stat. § 904.03. ^[7] Gribble, 248 Wis. 2d 409, ¶55; State v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App. 1998). We conclude that the trial court erred in its determination permitting admissibility of the exhibit.¶12      The defendants did not have notice regarding the use of the computer-generated animation. While “surprise” is not a basis for exclusion under Wis. Stat. § 904.03, “testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.” Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶12, 305 Wis. 2d 658, 741 N.W.2d 256,review denied, 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810 (Jan. 22, 2008) (No. 2006AP480) (citation omitted). For several reasons, the surprise in this case was coupled with the danger of prejudice and confusion.

Roy, which upheld admissibility of animation though adverse party not made aware of its intended use until 5^th day of 8-day trial, distinguished (largely because there, it was introduced via expert as part of effort to depict theory of case, and here it was via non-expert as part of seeming effort to recreate alleged crime step by step), ¶¶12-18:

¶22      Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information—bits and pieces from each of the State’s witnesses when, mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.

Inadmissibility, then, comes under the overarching 904.03 rubric. Yet, the court also seems to suggest independent bases for inadmissibility, namely lack of personal knowledge, ¶16, foundation¸ ¶17, and authentication, ¶18. If, indeed, each such defect may be a “stand-alone” ground for inadmissibility of computer-generated animation, then you don’t always need the precise concatenation of defects that occurred in this case. Regardless, the holding is narrow in the sense that on the facts it’s limited to a lay witness’s attempt to recreate testimony.

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: On a trial for stalking, § 940.32, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details); but may not bar altogether submission to the jury of the stipulation:

¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.

¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton’s 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

That leaves State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), which holds that on OWI trial, the existence of priors may be stipulated out:

¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander’s holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations.

…

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, ^[19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant’s propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding:

¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. The guilty plea waiver rule is a rule of judicial administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Therefore, in our discretion we can decline to apply the rule “particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved.” State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991), aff’d, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). Whether the State can modify or amend a previously issued detainer to block the application of the IAD has not been addressed in this state and must be resolved. In addition, the issue was rigorously litigated in the circuit court and our resolution will not sandbag the court. Finally, the parties have fully briefed the issue and, as we noted, the historical facts are not in dispute. We therefore turn to the merits of the issue.

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue/Holding:

¶10      Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193, ¶25, 305 Wis. 2d 164, 738 N.W.2d 173 (applying contract-law principles in the context of a plea agreement). The interpretation of a written contract is a question of law subject to de novo review. State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). “[W]hen terms of a contract are plain and unambiguous, we will construe the contract as it stands.” Id. A contract is ambiguous only when it is “‘reasonably or fairly susceptible of more than one construction.’” State v. Windom, 169 Wis. 2d 341, 349, 485 N.W.2d 832 (Ct. App. 1992) (quoting Borchardt v. Wilk, 156 Wis.  2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990)). Whether a contract is ambiguous is a question of law we decide de novo. Id. We may not construe a contract “to revise an unambiguous contract in order to relieve a party to a contract ‘from any disadvantageous terms’ to which he or she has agreed.” Id. (quoting Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692 (Ct. App. 1979)). We construe ambiguous language in a contract against the drafter. Walters v. National Props., LLC, 2005 WI 87, ¶14, 282 Wis. 2d 176, 699 N.W.2d 71.

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue: Whether commission of an offense during the period of the deferred prosecution agreement permitted resumption of the prosecution after that period expired, under the wording of the agreement.

Holding:

¶13      We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, “the District Attorney may, during the period of deferred prosecution … prosecute you for this offense.” (Emphasis added.) As Kaczmarski argues, resumption of the prosecution after the deferred prosecution period expired is not a remedy provided by the agreement. The agreement provides the State with two potential remedies in the event of a breach: revocation/modification of the agreement or prosecution on the charged offense, neither of which is permitted after the deferred prosecution period has expired. We conclude that the only reasonable construction of the deferred prosecution agreement is that the district attorney may resume prosecuting Kaczmarski for breach of the agreement only before the agreement expires.

Deferred prosecution agreements are regulated by statute, § 971.37; K. argues that the statute compels relief, but the court holds that argument forfeited, ¶8. In theory, then, the opinion only interprets the language of this particular agreement, and observes by way of dicta:

¶19      It may be that the prosecutor here should have included a provision that permitted a resumption of prosecution for a breach after the deferral period. But we may no more write such a term into this agreement than we may write such a term into the statute.

But is that right? It is not so easy, after all, to ignore the statutory scheme, notwithstanding K.’s failed invocation of it. For starters, § 971.37(2) clearly seems to condition termination of the agreement (and thus resumption of the prosecution) on written notice “prior to completion of the period of the agreement.” On top of that, subs. (3) clearly seems to mandate dismissal with prejudice “(u)pon completion of the period of the agreement, if the agreement has not been terminated under sub. (2).” And compare § 971.39(1)(f) (at once broader, in that it applies to almost all crimes, and narrower, in that it applies only to smaller counties—dismiss with prejudice “upon the completion of the period of the agreement”). Can an agreement provide, in seeming contravention of the statutory scheme, for resumed prosecution after the period of the agreement? Maybe, according to ¶19, but the possibility is far from self-evident, as the court itself suggests:

¶18      Moreover, the State’s policy argument is undercut by the plain language of the deferred prosecution agreement statute, Wis. Stat. § 971.37(1m)(b). ^[6] As the prosecutor did here, the legislature plainly limits the time period in which prosecutions may be resumed. Section 971.37(2) provides that the “written [deferred prosecution] agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.” (Emphasis added.) It is unreasonable to argue that an individual deferred prosecution agreement is against public policy when the legislature has adopted by statute the very provision being objected to.

It is hardly unreasonable to argue that an agreement is against public policy when it contravenes the very legislation that authorizes it.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent

Issue/Holding: A plea agreement under which the State dismissed one count “outright” and “(b)oth sides are free to argue” was ambiguous as to whether to State could argue the facts underlying the dismissed charge at sentencing:

¶17      We thus conclude that the plea bargain was ambiguous because the agreement could have meant the State would either (1) dismiss the charges outright, with prejudice, and not refer to the facts underlying the charge in any form at sentencing; or (2) dismiss the charges so that Wesley would not face exposure to a sentence for that charge, but both sides would be free to comment on the underlying facts of the dismissed charge and argue their significance for sentencing purposes. The agreement is just plain silent about what the term was to mean. It could have reasonably meant either of the above.

What, then, is the implication? What precise relief is available against an ambiguous provision? Can Wesley obtain specific performance of an ambiguous provision? The court doesn’t explicitly answer the question, leaving the outcome a bit, well, ambiguous itself.

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea. A completed Form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the Form. Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, ^[18] the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant.