On Point

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256

For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶93      The defendant summarizes his argument that he did not voluntarily, knowingly, and intelligently waive his right to counsel, stating that at the time of his arrest, he was hungry, alone in the back seat of a squad car, handcuffed, and young and limited in intelligence and sophistication.

¶94      This argument is not compelling on the facts of the present case. The defendant was an adult at the time of his arrest. While he casts himself as limited in intelligence and sophistication (and the circuit court acknowledged the defendant’s apparent limited intelligence and understanding), the defendant does not claim to be incompetent to exercise or waive his legal rights. Although Detectives Rindt and Clausing did arrest the defendant before he had a chance to eat his breakfast, the defendant does not seem to claim that hunger had somehow deprived him of the ability to make decisions knowingly and intelligently. The defendant was undoubtedly uncomfortable and scared. Most people arrested on suspicion of delivering cocaine would probably be uncomfortable and scared.

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶77      Whether a suspect “initiates” communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect’s beginning an exchange with law enforcement, although the lapse of time is a factor to consider.…

¶82      … [T]he defendant’s statement here that he did not understand why he was under arrest was clearly seeking information and constituted an initiation of communication with Rindt in the most ordinary sense of the word. The defendant’s statement did not merely relate “to routine incidents of the custodial relationship.” ^[93]The context of the defendant’s statement supports the conclusion that the statement evinced a willingness and a desire for a generalized discussion about the investigation.

…

¶89      In contrast to McDougal, in the present case, after the defendant invoked his Fifth Amendment Miranda right to counsel, the detective did not make any provocative statements about the arrest or the crime. Rather, the defendant began an exchange with Rindt with a comment to which the detective made a straightforward response. Under the totality of the circumstances in the present case the defendant’s comment evinced a willingness and a desire for a generalized discussion.

¶90      For the reasons set forth, we conclude that the defendant “initiated” further communication with Rindt.

On a distinct point: Can, for purposes of Edwards v. Arizona, a suspect initiate police contact through a 3rd party? Yes, according to Van Hook v. Anderson, 6th Cir No. 03-4207, 5/24/07.

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a suspect’s in-custody invocation of right to counsel before administration of Miranda warnings triggers the Edwards bar on interrogation absent the suspect’s reinitiating communication with the police.

Holding:

¶23      The State argues that in the present case when the defendant asked for an attorney he was not subject to custodial interrogation. The State concludes that the defendant was in custody but was not being interrogated, that the defendant’s request for an attorney was thus anticipatory, and that the defendant did not effectively invoke his Fifth Amendment Miranda right to counsel.…

¶24      … We are persuaded by the case law that the State’s position is incorrect and do not adopt the State’s position. …

…

¶29      Under LaGrone and other cases a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel when a reasonable person in the suspect’s position would believe that interrogation is imminent. These cases impose a temporal limit on a request for counsel as well as the requirement that the request for counsel must relate to assistance of counsel during interrogation.

¶30      Another possible standard for Miranda and Edwards purposes is that a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel any time the suspect is in custody, even before Miranda warnings or the onset of questioning. ^[28] State v. Collins, 122 Wis. 2d 320, 363 N.W.2d 229 (Ct. App. 1984), may be read as adopting such a standard. ^[29]

…

¶43      Because the defendant was in custody and had a reasonable belief that interrogation was imminent or impending, his request for counsel was an effective invocation of his Fifth Amendment Miranda right to counsel under both the “anytime in custody” standard and the “imminent or impending interrogation” temporal standard.

¶44      The present case illustrates “the type of coercive atmosphere that generates the need for application of the Edwards rule.”^[43] After the defendant effectively invoked his Fifth Amendment Miranda right to counsel, police interrogation, unless initiated by the defendant, would violate Edwards v. Arizona, 451 U.S. 477 (1981).

The court splits 3-3 on whether an in-custody, pre-Miranda warning defendant is entitled to benefit of the Edwards rule whenever making a request for counsel (as opposed to only when interrogation is impending or imminent, ¶¶101-02). Resolution of that question isn’t necessary on these facts, because either way Hambly met the test. Note, though, the court’s construction of Collins as holding that no “temporal standard” applies. As a result you can argue that, unless and until further clarification is forthcoming from the supreme court, Collins controls this issue.

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding:

¶29      When we accept certification from the court of appeals, we acquire jurisdiction of the entire appeal. We thus consider all issues raised before the court of appeals. See Wis. Stat. §§ 808.05(2) and (Rule) 809.61; State v. Stoehr, 134 Wis.  2d 66, 70, 396 N.W.2d 177 (1986). This case presents two separate questions of constitutional fact, which we address in turn.

The certification raised but one issue (search & seizure); the supreme court’s grant of review thus conferred authority to reach the entirely separate issue (plea-withdrawal) raised in the court of appeals even though not formally part of (indeed, not so much as mentioned by) the certification request.

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶21      Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. ^[3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party’s failure to object.  State v. Mayo, 2007 WI 78, ¶29, 301 Wis.  2d 642, 734 N.W.2d 115. See also 7 Daniel D. Blinka, Wisconsin Evidence § 103.7 (2d ed. 2001). Plain error is “‘error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.'” State v. Sonnenberg, 117 Wis.  2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial.” Id. Courts should use the plain error doctrine sparingly. Id. For example, “‘where a basic constitutional right has not been extended to the accused,'” the plain error doctrine should be utilized. Id. (citing Virgil v. State, 84 Wis.  2d 166, 195, 267 N.W.2d 852 (1978) (Beilfuss, C.J., concurring); ” Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule.” State v. King, 205 Wis.  2d 81, 91, 555 N.W.2d 189 (Ct. App. 1996) (citing to a number of Wisconsin cases applying the plain error doctrine).¶22      However, “‘the existence of plain error will turn on the facts of the particular case.'” Mayo, 301 Wis.  2d 642, ¶29 (citing Virgil, 84 Wis.  2d at 190-91). …

¶23      If the defendant shows that the unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless. ^[4] Id. (citing King, 205 Wis.  2d at 93). …

---

 ^[4]  “It is also consistent with federal case law for us to use a harmless error analysis in determining whether to invoke the plain error doctrine.” State v. King, 205 Wis.  2d 81, 92, 555 N.W.2d 189 (Ct. App. 1996). See also United States v. Olano, 507 U.S. 725, 734 (1993). However, unlike the state of Wisconsin where the State holds the burden, in the federal system the burden is on the defendant to show that the error was harmless. King, 205 Wis.  2d at 93. The concurrence advocates for stating the specific language that federal courts use in their plain error doctrine analysis. Instead, the majority decision today incorporates existing Wisconsin case law on that issue in order to clarify Wisconsin’s plain error doctrine. See ¶¶21 and 22 of this opinion. While the concurrence questions what would qualify as fundamental and substantial error under the majority’s test, the federal doctrine, as espoused by the concurrence, raises the same question. The concurrence also asks whether a fundamental and substantial error can be harmless. Under our analysis, any error that satisfies the first prong of our plain error doctrine, i.e., any error that is fundamental, obvious, and substantial, must then undergo the second prong of whether that error is nonetheless harmless. Today we find that the errors constitute plain error. In this case, we are not presented with facts that satisfy the first prong but are harmless under the second prong. In a future case, however, an error may satisfy the first prong but nonetheless be deemed harmless under the second prong’s seven factor test, and thus, the error would not constitute plain error.

“… in the federal system the burden is on the defendant to show that the error was harmless.” Typo, obviously: the burden there is to show the error was prejudicial. The majority appears committed to a two-part plain error analysis: “fundamental,” etc., error; and if so, harmlessness nonetheless. As the court also suggests, plain error is generally limited to constitutional error, as in this case (¶33). Note, as well, that the trial found that the absence of objection was based on counsel’s sound strategy, ¶¶1, 7, 17—the supreme court nonetheless engages in plain error analysis (and for that matter grants relief) without so much as factoring this into the result. It’s hard to see this as anything other than dismissal of the relevance of any strategic basis for lack of objection, at least for purposes of plain error analysis. Perhaps that follows from the fundamental nature of “plain” error, but the court doesn’t say explicitly that that is so.

The court also enunciates general harmless-error principles:

¶23      … To determine whether an error is harmless, this court inquires whether the State can prove “‘beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[].'” ^[5] Mayo, 301 Wis.  2d 642, ¶47 (citation omitted). This court has identified several factors to assist in determining whether an error is harmless: (1) the frequency of the error; (2) the importance of the erroneously admitted evidence; (3) the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence; (4) whether the erroneously admitted evidence duplicates untainted evidence; (5) the nature of the defense; (6) the nature of the State’s case; and (7) the overall strength of the State’s case. Id., ¶48. ^[6] If the State fails to meet its burden of proving that the errors were harmless, then the court may conclude that the errors constitute plain error.

State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro

Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript.

Holding:

¶3        We agree with the State and conclude that State v. Gee ^[3] misinterpreted our decision in Brown. We conclude that a circuit court is not required to read the original sentencing transcript in every reconfinement hearing. Rather, the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case. As articulated in Brown, the circuit court must decide which factors are relevant for consideration in any given case, and the circuit court must use its discretion as to how it ascertains the information needed to consider the relevant factors. Accordingly, we reverse the court of appeals’ decision in this case and overrule Gee.

…

¶19      As stated in Brown, the original sentencing transcript can be an important source of information regarding these factors and is generally readily available. … The parties are, therefore, encouraged to identify relevant information from the sentencing transcript or any other document and bring it to the circuit court’s attention, so the judge may then specifically review that information.

¶20      While the circuit court may ascertain relevant information from a number of sources, we do not require that any one source or list of sources be utilized in every case. Rather, we merely require that the circuit court be familiar with the case before it. Ultimately, it is for the circuit court to determine the appropriate manner in which to accomplish this, and it may vary based upon the particular case.

…

¶23      While we did emphasize the likely usefulness of the sentencing transcript in our Brown decision, we did not intend for that to be construed as a per se rule that circuit courts must read the original sentencing transcript before every reconfinement hearing. Rather, we leave it to the circuit court’s discretion to determine which factors articulated in Brown are relevant, and we leave it to the circuit court to determine how best to ascertain information pertaining to the relevant factors. While it certainly may be good practice for the circuit court to review the sentencing transcript, it may not always be necessary, and therefore, we do not create a per se rule, but instead leave it to the trial court’s discretion.

What about sentencing after revocation (of probation)? Good question indeed. In that context, the court of appeals has separately held, a successor judge must have read the original sentencing transcript before proceeding to disposition, State v. Reynolds, 2002 WI App 15. Or so the holding may have been construed … but no longer. This is how the court of appeals, by way of distinguishing reconfinement from SAR, read its own holding in Reynolds:

   Jones also contends that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement in violation of Reynolds. Reynolds holds that where the “record does not reflect the sentencing judge’s awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in … the withholding of sentence, resentencing is appropriate.”Reynolds, 249 Wis. 2d 798, ¶2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In eynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first timeafter revocation of Reynolds’s probation. Id., ¶4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject Jones’s arguments to the contrary.

State v. Brandon E. Jones, 2005 WI App 259, ¶13. Has that result now been overturned along with Gee? Not quite, but it’s certainly been limited:

¶26      Walker, relying primarily on State v. Reynolds, argues that even pre-Brown court of appeals’ decisions established that a circuit court must review the original sentencing transcript prior to a reconfinement hearing. We reject this argument. Reynolds was a sentencing after revocation of probation case and not a reconfinement hearing case. State v. Reynolds, 2002 WI App 15, 249 Wis.  2d 798, 643 N.W.2d 165. Moreover, Reynolds did not establish such a bright-line rule. Id., ¶¶9-11, 13-15. Rather, Reynolds supports the conclusion that reviewing the original sentencing transcript may be necessary in some cases. Id. For example, in Reynolds, a review of the original sentencing transcript, in order to ascertain the severity of the original offense, was “essential to a fair sentencing after revocation.” Id., ¶11. To the extent that Reynolds even supports Walker’s argument, the court of appeals seemingly had conflicting published decisions prior to Brown and Gee. Compare Reynolds with State v. Jones, 2005 WI App 259, ¶13, 288 Wis. 2d 475, 707 N.W.2d 876 (rejecting the defendant’s argument that underReynolds, a judge must review the original sentencing transcript prior to a reconfinement hearing). Our decision today resolves any potential conflicts that existed at the court of appeals——no per se rule exists.

This analysis is potentially jarring – the court of appeals simply lacks authority to ignore its own precedent; indeed, arguably lacks authority to withdraw any language from its own published caselaw. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246, 256 (1997); American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so”). What this necessarily means, then, is that a conflict in court of appeals’ caselaw is theoretically impossible. Either the earlier holding must be construed as having been overruled or modified by subsequent authority from a higher court, or else the later, supposedly conflicting court of appeals’ holding must be given no effect because it represented an unauthorized exercise of judicial authority. Nugatory, in a word. See State v. Esteban Martinez, 2007 WI App 225, ¶23 (““Where two court of appeals decisions conflict, the first decision governs. State v. Swiams, 2004 WI App 217, ¶23, 277 Wis.  2d 400, 690 N.W.2d 452”). These observations don’t undermine the result in Walker, but are made simply to clarify that you shouldn’t read too much into the court’s idea about dueling court of appeals decisions.

State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro

Issue/Holding:

¶14      As a preliminary matter, while the issue before the court is moot because Walker has completed his reconfinement term and thus our decision will not affect the underlying controversy, we may at times consider a moot issue if it is of “great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts.” State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis.  2d 24, 692 N.W.2d 219. Because circuit courts regularly preside over reconfinement hearings, we review the issue at hand even though it is moot.