On Point

State v. Joseph E. Koll, Jr., 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg

Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.

Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. § 922(g)(33), and because the charging documents describe a “domestic” relationship between Koll and the victim the gun disqualification is established.

A disqualifying misdemeanor conviction has two separate components, 1) violence in 2) a “domestic” relationship. Koll indisputably lived with his DC victim; his argument was simply that the Gun Control Act requires “convictions for misdemeanor crimes that include, as an element, a domestic relationship,” ¶7. The court easily dispatched that argument: “The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion. Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun,” ¶12. In light of the referenced case, U.S. v. Hayes, 555 U.S. __, No. 07-608 (“Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime”), this conclusion seems beyond challenge. Difficult questions—ignored by the court—remain, however.Given that “domestic” relationship isn’t a formal element, how exactly is it to be established? (The definition is recited in ¶8 of the opinion and more or less comes down to spousal, parental, or guardianship “relationship between aggressor and victim.” You’ll find more in Hayes, and here, from the BATF website.) Koll did not, apparently, challenge the fact that he “cohabited” with the victim, so the matter of proving the connection didn’t have to be sharpened. The concurrence, though, elaborates a bit: “the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report,”¶21. The concurrence cites only an ATF document for the proposition you can look at police reports to ascertain a domestic relationship, but that document doesn’t mention police reports at all. The majority, by contrast, indicates only that the domestic relationship was established by the complaint, e.g., ¶¶4, 7. Despite the concurrence, then, the opinion is not authority for going beyond the complaint. Indeed, a federal Armed Career Criminal Act case, Shepard v. United States, 544 U.S. 13 (2005), specifically holds that in determining the nature of qualifying priors, extrajudicial documents such as police reports are very much off-limits. The inquiry instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (Not controlling, but arguably applicable to this context.) Thus, there’s a decent argument we’re limited to judicial documents in establishing a “domestic” relationship. But if Koll means nothing else, it means that labeling the complaint “non-domestic” does no good at all. It’s a nullity, as the concurrence accurately points out.

So much for the “domestic” relationship requirement. Recall the second requirement, “violence,” which Koll does not appear to have challenged. Perhaps he should have. The complaint, though, plainly “indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off of the vehicle”: why isn’t that conduct “violent”? Well, that isn’t necessarily the right question, which is, rather, whether the predicate offense necessarily involves violent conduct; whether, that is, and very much unlike the domestic relationship inquiry, force must be a formal element. Shepard (again: not controlling but arguably applicable) holds that the offense must be “categorically” violent. The same point is made more recently by Chambers v. U.S., No. 06-11206 (“This categorical approach requires courts to choose the right category. And sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect.”). DC, of course, is sort of an omnibus provision (“or otherwise disorderly conduct”), but only one elemental alternative unequivocally relates to “violent” conduct. The Koll opinion isn’t clear, indeed is totally silent, about whether “violent” conduct was formally alleged against Koll. Maybe it was, maybe it wasn’t. Does “violent” conduct have to be specifically alleged, or is the court saying that DC is necessarily a crime of violence? Well, that question appears to be answered by the Instruction Committee, JI 1900: “Conduct is disorderly although it may not be violent ….” Perhaps, then, Koll’s complaint specifically alleged “violent” conduct. But even if it didn’t, the fact that Koll didn’t raise the argument means that the opinion didn’t precedentially resolve it.

Assuming you’ve read this far, why on earth should you care about any of this? For one thing, the gun ban is a collateral (as opposed to direct) consequence of a conviction, e.g., State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999), so that a) the burden of informing the defendant of the disqualifying effect falls on counsel (rather than the court should the defendant enter a guilty plea); b) the defendant’s belated discovery of this information after conviction will not be a ground to withdraw a guilty plea; c) maybe (it remains to be seen) in some instances some sort of insulation may follow by amending the complaint’s factual allegations and/or stipulating to a different set of facts, or even amending the specific formal element alleged. Perhaps attention ought to be given, as part of any plea-bargaining, to amending the formally charged alternative to something other than “violent” conduct. Thought should be given, as well, to making the contemporaneous record clear that the guilty plea is premised on avoidance of the gun ban—see, in this regard, the self-same Koll’s companion case, State v. Koll, 08-AP1403, 4/8/09) (Koll allowed to withdraw plea to the very DC conviction at issue, on the theory he “was actively misinformed as to a collateral consequence of his plea agreement,” namely the gun ban). Undoubtedly, other implications will occur to you, but the larger point seems pretty clear: this is going to be a recurrent problem.

One last observation. The court of appeals mentions, literally in passing (¶6), that it “must determine whether Koll’s conviction for disorderly conduct prohibits him, under 18 U.S.C. § 921(a)(33)(A), from exercising his constitutional right to bear arms.” Also, ¶12 (“The question before us is whether Koll’s conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms.” We’ll put aside for now whether the 2^nd A applies—very much up in the air—rather than Art. I, § 25 which clearly does apply.) These glancing references mark the only times the constitutional right is mentioned. It’s therefore probably fair to assume that while the court may deem the right’s very existence to be non-controversial, the court equally thinks the right completely irrelevant to the analysis. Nothing, then, like a constitutional right observed only with such apparent disdain. Does a fundamental right trigger a requirement that its impairment be accomplished as reasonably narrowly as possible? Someone will have to make the argument before we find out.

State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09
For Sandoval: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The State need not disclose bona fide rebuttal evidence, the test for which turns on whether the evidence “only became necessary at rebuttal” (as opposed to whether it would have been admissible or useful in the State’s case-in-chief), ¶¶30-34.

¶33   We are convinced that the State satisfied the law of Wisconsin in this case. Vela’s testimony was bona fide rebuttal evidence because it directly answered an issue introduced by Sandoval’s defense: that Sandoval did not have a gun in the car. Specifically, Sandoval offered Gryczawski’s testimony that she was in the car with Sandoval on the way to the party on Thor Avenue and no one in the car had a gun, and that specifically, she did not see a gun on Juan Sandoval. Sandoval himself testified that he had “never seen” a gun before; that the “[f]irst time” he saw or held a gun was after they exited the car and went into the party. It should have come as no surprise to Sandoval that the State would seek to defuse his proffered evidence that he did not have a gun in the car before the party. See id. Although the specifics of the State’s evidence—Vela’s testimony that he saw Sandoval with a gun in his possession in the car before the party—may have been a surprise, it directly rebutted Sandoval’s own evidence: Gryczawski’s testimony that no one in the car had a gun and specifically, she did not see a gun on Sandoval; Sandoval’s testimony that his very first contact with a gun was in the Thor Avenue house when he grabbed and held one momentarily before relinquishing it. This is not trial by ambush; it is simply the State’s response to an issue Sandoval raised in his defense. See id. The fact that Vela’s testimony would have been useful in the case-in-chief does not preclude its use in rebuttal. See id.

In terms of the larger principle involved, the court largely reaffirms its prior holding in State v. Richard N. Konkol, 2002 WI App 174, ¶1 (“To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(1)(d).”). More particularly, the court rejects a test proffered by Sandoval, based on Wright v. State, 708 A.2d 316 (Md. 1998), which is whether the supposed rebuttal would have been inadmissible in the case-in-chief as irrelevant. Instead, per Konkol, the test is as noted above whether the evidence “only became necessary at rebuttal.” It may be worth recalling, if for no other reason than that Konkol stresses the point, ¶19 n. 7, that disclosure of the defendant’s statements is entirely something else.

State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt

Issue/Holding:

¶21      It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.”  State v. Wenger, 225 Wis. 2d 495, 507, 593 N.W.2d 467 (Ct. App. 1999) (quotingMcMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973)); see alsoWis. Stat. §§ 904.04 and 904.05(2).  It is also well established that admissibility of evidence proffered to show the reasonableness of the self-defense claim is within the circuit court’s discretion.  State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413.  As with any “other acts evidence,” the evidence is subject to the application of the balancing test involving the weighing of probative value against the danger of unfair prejudice, and considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Wis. Stat. § 904.03.  Assuming its probative value outweighs such considerations, we have in previous cases established the defendant’s right to put on such evidence once a factual basis has been set forth for a self-defense claim, and also established the circuit court’s responsibility to vet the evidence prior to admission to be sure it is validMcMorris evidence.  See, e.g., McAllister v. State, 74 Wis. 2d 246, 246 N.W.2d 511 (1976).  The question before us in this case is primarily a question of timing: whether a circuit court has the authority to order a defendant to disclose any planned McMorris evidence prior to trial, so that the factors involved in determining the evidence’s admissibility can be weighed not only prior to admission, but also prior to trial.

State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski

Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion, waived his right to seek retraction:

¶17      Wisconsin Stat. § 901.03(1) requires a party challenging the trial court’s ruling excluding evidence to make an offer of proof ….¶18      Here, the trial court excluded evidence, namely Winters’s own testimony. Accordingly, Winters was obligated based on Wis. Stat. § 901.03(1)(b) to make an offer of proof in order to assert error. …

…

¶20      Although the facts in Brown are different from the instant case, the same legal principles apply. Here, Winters did not request an opportunity to give testimony outside the presence of the jury nor did he submit an affidavit detailing what he planned to say. Without such offer of proof, we cannot review Winters’s claim on appeal that granting his request to revoke his previous waiver and allowing him to take the stand would not have prejudiced the State.

¶21      The determination of whether to allow a defendant to testify after the evidence has closed and after he has previously executed a valid waiver of his right to testify is left to the discretion of the trial court. Arredondo, 269 Wis.  2d 369, ¶¶11, 13, 19. “A trial court must consider ‘whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief.’” Id., ¶19 (citation omitted). Without an offer of proof, the trial court could not consider the potential for prejudice and neither can we.

¶22      Winters offers two excuses for not seeking an offer of proof: (1) his attorney did not want him to testify and thus made no effort to do an offer of proof; and (2) the trial court failed to sua sponte inquire about the substance of his testimony. Neither excuse suffices here. With regard to the latter, as noted above, the trial court was not under any obligation in this instance to be the instigator of an offer of proof. With regard to the former, Winters is correct that his trial attorney made no effort to seek an offer of proof most likely because his counsel believed that taking the stand would not be in Winters’s best interest; however, that moment was not Winters’s only opportunity to submit an offer of proof. He could have done so via an affidavit when he filed his postconviction motion. He did not.

Embellishment of State v. David Arredondo, 2004 WI App 7 (Arredondo similarly waived right to testify, state released rebuttal witnesses, and then retraction of waiver was sought). But there, the trial court found that Arredondo was simply trying to game the system, and the consequential refusal to allow him to testify was upheld on appeal as an appropriate exercise of discretion. And yet another interesting similarity, in Arredondo’s noted failure to make an offer of proof, ¶ 20 n. 2 (“Arredondo did not present any evidence from which the trial court could evaluate the likely value of his testimony.”). But in that case, the absence of a proffer was cited as support for manipulation by defendant, ¶20. Here, no finding of manipulation was made, so the court is in effect taking Arredondoa step farther. Pretty clearly, then, if you’re attempting to undertake a good-faith retraction of waiver you won’t have much choice but to give the state a preview of the testimony. Worse: if the trial court insists, as might well be its prerogative, on a Q & A proffer, then you’re also giving the state a free swipe at the defendant. All in all, the procedure greatly pressurizes the initial decision (not) to testify. Arredondo, incidentally, recently lost his 2254 challenge, David Arredondo v. Huibregtse, 542 F3d 1155 (7^th Cir 2008) (for habeas purposes, no controlling authority establishes that trial court must engage in an on-record colloquy with the defendant as to his or her desire not to testify; administration of right to testify reviewed for reasonableness at high level of generality, such that refusal to countenance retracted waiver not objectively unreasonable, given prejudice to prosecution and delay in trial).

State v. Mark A. Jaramillo, 2009 WI App 39
For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.

Holding:

¶16      We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v. Perez, 170 Wis. 2d 130, 137, 487 N.W.2d 630 (Ct. App. 1992). Rather, “Wisconsin’s constitution and statutes limit such a law-developing or law-declaring function exclusively to the Wisconsin Supreme Court.” Id. Our constitution gives the supreme court supervisory authority over all of the courts of this state, but delegates such authority to the court of appeals only over “the courts in the district.” Wis. Const. art. § 3(2)-(3). A mandate that all courts in Wisconsin must conduct a colloquy to ensure a defendant knowingly and voluntarily waives the right not to testify must therefore come from the supreme court.¶17      Although we cannot require a colloquy, we do recommend it as good practice. The comments to Wis JI—Criminal SM-28 ^[2] acknowledge Weed only requires a colloquy when a defendant seeks to waive the right to testify; however, the jury instruction committee “concluded that a similar inquiry should be conducted when the defendant decides to testify, because a constitutional right is involved regardless of the decision that is made.” Wis JI—Criminal SM-28, comment. A colloquy benefits not just the defendant, but the courts as well. Just as in Weed, a colloquy “serves the dual purposes of ensuring that a defendant is not deprived of his [or her] constitutional rights and of efficiently guarding our scarce judicial resources.” Weed, 263 Wis. 2d 434, ¶39 (quoting State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)).

Because the right not to testify is a fundamental constitutional right, its waiver must be knowing and voluntary (¶8), and Jaramillo is entitled to a hearing on his postconviction motion arguing that he did not validly waive the right when he testified at his trial:

¶18      Jaramillo had a fundamental constitutional right not to testify. The circuit court was not obligated to conduct a colloquy during the trial to ensure Jaramillo waived that right. Nevertheless, the court was required, once the issue was raised in the postconviction motion, to determine whether Jaramillo knowingly and voluntarily waived his right not to testify. Therefore, we remand for the parties to offer evidence should they so choose, and for the court to decide whether Jaramillo knowingly and voluntarily waived his right not to testify.

The court rejects the idea that this claim is cabined by ineffective-counsel principles:

¶13      We agree with Jaramillo that his claim he did not knowingly and voluntarily waive the right not to testify is not confined to a claim of ineffective assistance of counsel. To hold to the contrary would mix apples and oranges: whether a defendant has been denied effective assistance of counsel is an inquiry directed at the attorney’sbehavior; whereas whether a defendant knowingly and voluntarily waived the right not to testify asks what the defendant knew and understood. While defendants no doubt depend upon their attorneys to inform them of their rights, what a defendant comprehends is not necessarily a result of the attorney’s performance.

The court does not, however, otherwise explain what goes into the knowing / voluntary inquiry.

State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House

Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”

State v. Kaufman, 188 Wis. 2d 485, 492, 525 N.W.2d 138 (Ct. App. 1994), distinguished, as involving crime for which state had discretion to charge as either continuous or single offense(s) and that information therefore didn’t notify Kaufman she would have to prepare a defense to a continuing offense, ¶32:

¶33      The present situation is different. Here, a course of conduct is an element of the charged offense, not a charging option within the State’s discretion. The law does not require that the information specify with particularity upon which dates the course of conduct occurred, and Conner provides no authority for such a requirement. The supreme court has stated that “[i]n drafting an information the state should not have to spell out every act which would comprise an element of the crime ….” Wilson v. State, 59 Wis. 2d 269, 275-76, 208 N.W.2d 134 (1973). Instead, allegations of the elements of the crime charged will suffice. Id. at 276.

State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.

¶1        … In this case, Julio C. Bautista, relying on two cases from Pennsylvania, argues that conduct is defined as a “common scheme or plan” such that his conspiracy to sell drugs encompasses all acts under that planned endeavor. We are unwilling to accept that definition. Borrowing from a phrase in Harrell v. State, 88 Wis. 2d 546, 558, 277 N.W.2d 462 (Ct. App. 1979), we hold that when a defendant comes to a “fork in the road” and commits to a separate volitional act, it is different conduct and its prosecution is not subject to § 961.45. We affirm.…

¶14      However, in Bautista’s case, he sold cocaine on one date, August 13, 2005. ^[3] This act resulted in a federal charge to which he pled guilty. The state charge had nothing to do with delivering cocaine on a certain date. Instead, it had everything to do with a different kind of drug—marijuana—and it alleged a conspiracy with others to sell this particular kind of drug between April 11, 1997, and September 6, 2005, a span of over eight years. Clearly this was different conduct involving different drugs, during a different time frame and with an underlying factual basis that consisted not of the act of delivery itself, but of the conspiracy to sell. The act of conspiring to sell marijuana over a long period of time is different in time, space and manner than one instance of delivering cocaine. Not only do the charges involve different types of acts, the acts are also different in nature—the defendant had sufficient time between the acts to again commit himself. The conduct involved different invasions of interests and different intentions making the defendant subject to multiple punishments. The state charge is therefore not the same conduct as that conduct resulting in the federal convictions by any stretch.

¶15      We must reject Bautista’s attempt to paint his case with a broad brush to say that since the marijuana and cocaine are both controlled substances, it does not matter that two different drugs were involved. And we must also reject the idea that because the conspiracy charge overlapped one of the cocaine delivery charges, this was all part of the same trafficking conspiracy. Rather, we look to the underlying actions, the “thing done” or the “deed” ^[4] that gave rise to the conspiracy conviction on the one hand and the “thing or deed” done that gave rise to the discrete act of selling which formed the basis of the other conviction. If the two deeds or things involved different conduct, the proverbial “fork in the road,” then they can be prosecuted by dual sovereigns without running afoul of Wis. Stat. § 961.45. We therefore affirm the conviction for conspiring to sell marijuana.

The court doesn’t say who has the burden of (dis)proving a “different volitional act,” with the standard of proof left unsaid as well. It’s a defense to a charge, so you probably shouldn’t facilely assume the State has the burden of proof. The court is also silent on just what factors might inform this determination. The “fork in the road” metaphor comes fromHarrell, but that is a sexual assault case and its seven-factor test isn’t readily applicable to drug prosecutions, 88 Wis. 2d at 572. Is Bautista’s case representative, so that whether the conduct is (or is not) the “same” will always be obvious from the nature of the charges? Doubtful.