On Point

State v. Sou W. Her, 2008 WI 39, dismissing as improvidently granted, review of unpublished decision
For Her: Donald J. Chewning

Issue/Holding:

¶2        This case involves Her’s agreement to plead guilty in exchange for an aggregate 15-year sentence recommendation from the State (10-years initial confinement with 5-years extended supervision). The record clearly indicates that the district attorney intended Her’s 15-year sentence to match what was believed to be the sentence of Her’s co-defendant, Tong Xiong, who was charged two years previously. ^[1] However, at the time of the plea offer, the district attorney misidentified Xiong’s sentence as being only 15, not 25, years and based his offer on that mistake. In response to questions by the court, the district attorney acknowledged that the offer was based upon that mistake.

…

¶4        With the contradictory language of the plea offer simultaneously describing both a 15-year sentence and a sentence equal to Xiong’s, the agreement’s terms appear to be internally inconsistent, calling the plea agreement into doubt. A valid plea agreement requires a meeting of the minds, evidenced through assent to the agreement’s terms. State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis. 2d 422, 724 N.W.2d 685. However, neither party has addressed or established whether there was a required meeting of the minds in the formation of the plea agreement. Without the parties addressing this foundational issue, we are unable to determine whether a breach of the plea agreement has occurred.

Dismissal raises a couple of potentially interesting questions. First: why did the court take review in the first place? Whatever concern the court perceived remains unresolved in light of the dismissal, which of course means that someone with the same or similar-enough problem can press vigorously for review. Here’s the issue as formulated by the court (and posted on its calendar):

Does the state commit an actionable breach of a plea agreement when, in response to the sentencing court’s questioning as to the justification for the plea agreement, it informs the sentencing court that the plea offer was extended in error, although the state also stands by the recommendation agreed to as part of the plea agreement?  If so, what is the appropriate remedy?

Though not entirely free from doubt, the court’s interest possibly was piqued by whether the State may, by responding honestly to pointed questioning from the court, undermine the terms of a plea bargain.The other question is raised by the result itself: if, as the court now seems to hold, the plea bargain wasn’t “valid” because its “terms appear to be internally inconsistent,” then why wouldn’t Her be entitled to withdraw the plea? The short answer is that he should be ( if he wanted to)—he entered his plea on an assumption [that he’d get the benefit of an unembellished recommendation] that turned out to be incorrect, and the plea was therefore involuntary—and nothing in this short opinion should be read to the contrary. Indeed, the issue simply wasn’t raised: Her explicitly limited his request for relief to specific performance as opposed to plea-withdrawal (¶8 n. 3).

State v. Miguel E. Marinez, Jr., 2008 WI App 105, (AG’s) PFR filed 7/15/08; prior history: certification, denied 4/3/08
For Marinez: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶1        At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal. In State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, the supreme court declined to adopt a new rule mandating that judges follow this practice. Here, the State argues that the reasoning employed in Williams dictates that a judge may not tell a defendant that the judge intends to exceed a sentencing recommendation. We disagree, and conclude that trial judges may employ this practice. Accordingly, we affirm. ^[1]

This decision has the potential to affect day-to-day practice throughout the state. A judge is not required to announce his or her intent to refuse to follow a plea-bargained sentencing recommendation, as the supreme court has repeatedly said, not just in Williams but in State v. Betts, 129 Wis. 2d 1, 2 (1986) and In re Amendment of Rules of Civil & Criminal Procedure: Sections 971.07 & 971.08, Stats., 128 Wis. 2d 422, 425 (1986). Now, for the first time (in this state anyway), an appellate court says that a judge can follow exactly that practice. As the court noted in its certification request, “we believe this is a widespread practice”; widespread already, and perhaps bound to proliferate even more after this green light.

Marinez’s judge accepted his plea, turned to sentencing and then said after hearing some of the background that she wasn’t going to follow the recommendation but that Marinez could withdraw the plea. The state objected, appealed, and the court now authorizes plea-withdrawal. Does it matter that all this occurred in a post-plea setting? Not according to a tantalizingly vague footnote dropped by the court, ¶8 n. 2: “whatever is permissible or required in the post-plea context should seemingly apply in the pre-plea context.” Undertaking this is in a pre-plea setting will require that one eye be fixed simultaneously on the well-settled rule against judicial participation in plea bargaining, State v. Antoine T. Hunter, 2005 WI App 5, a rule that remains in place. The net effect may well be to bring, via caselaw, Wisconsin practice under the same procedure followed in federal court under FRCrP 11(c) (very roughly, and subject to certain exceptions: district court may reject plea agreement but then must allow defendant opportunity to withdraw plea; nonetheless, the district court is absolutely barred from participating in plea bargaining). In other words, Rule 11 caselaw may very well become relevant to Wisconsin practice. Compare, for example, United States v. Bradley, 455 F.3d 453, 460 (4^th Cir. 2006)  (judge’s encouragement to accept government’s plea offer amounted to proscribed judicial participation in process) with, United States v. Frank, 36 F.2d 898 (9^th Cir. 1994) (parties revealed just-concluded negotiation to judge in his chambers during recess in on-going jury trial; held non-coercive: judge had to know if he was going to follow agreement so he’d know whether to discharge jury).

State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decisionFor Harris: Ralph J. Sczygelskis

Issue/Holding: A document, identified to the jury as “recognizance of bond in a criminal case … by the defendant,” found in the same room as a controlled substance and meant to show his connection to the drug, was inadmissible:

¶82      Criminal History Generally Inadmissible. Ordinarily evidence of a defendant’s criminal history is not admissible because when such evidence is admitted, there can be an “overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts” and because of “the confusion of issues which might result from bringing in evidence of other crimes.” ^[38] Evidence of a defendant’s criminal history may serve as “an invitation to focus on an accused’s character” and to “magnif[y] the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged.” ^[39]

…

¶86      … We agree with the State, defense counsel, and the circuit court, concluding that the State improperly introduced evidence of the defendant’s criminal history when the State called the jury’s attention to a recognizance bond bearing the defendant’s name and when a State witness referred to the bond as “a court bail bond, some kind of court paperwork for [the defendant]” and then a “recognizance of bond in a criminal case . . . a posting of $1,000 by the defendant.”

The court finds the error to be harmless, ¶¶87-90.

State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg

Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.

Holding:

¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography, not prior sexual assaults, if the adult victim functions at the level of a child due to disabilities. We also conclude the court properly exercised its discretion in applying the rule in this case. ^[5] Thus, in analyzing the circuit court’s decision we will bear in mind that the application of the rule permits a more liberal admission of other crimes evidence, while also recognizing that the rule does not relieve a court of the duty to ensure that the other acts evidence is admissible under the proper legal standards. See id. at 52.…

¶21      … The first step requires only that the other acts evidence be offered for a permissible purpose. We conclude the circuit court reasonably concluded that the State satisfied this requirement by identifying the permissible purpose of motive and explaining that the State wanted to show that Normington was motivated by his sexual interest in inserting objects into body orifices when he inserted the toilet plunger into Bob’s anus.

¶22      We turn next to the second step, which requires an inquiry into the relevance of the pornography evidence. …

…

¶24      Because inserting a toilet plunger into another person’s anus is an unusual thing to do, knowing why a person might be motivated to do such a thing is highly significant to deciding whether Normington did it.  A reasonable inference from the evidence that Normington viewed pornography showing the insertion of objects into a person’s anus is that he found that practice sexually arousing.  A reasonable judge could conclude that this inference makes it more probable that Normington would insert an object into Bob’s anus than if there were no evidence he had a sexual interest in the insertion of objects into a person’s anus.

The court also concludes that the evidence wasn’t unfairly prejudicial: “having a sexual interest in the pornography is less, not more, disturbing than inserting a toilet plunger into a mentally deficient person’s anus,” ¶35; Normington was offered but declined a standard cautionary JI, ¶36; the State’s argumentation properly limited the inferential purposes, ¶37; and, Normington was acquitted on two of four counts, which “demonstrates that the jury did not decide to find Normington guilty simply because of the pornography he viewed,” ¶38.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding:

¶26 As our supreme court explained in White, “[i]n applying the manifest injustice test on review, this court may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an [erroneous exercise] of discretion in the trial court’s denial of the motion to withdraw.” Id. Later, in Thomas, our supreme court held that “[o]n a motion to withdraw, a court may look at the totality of the circumstances to determine whether a defendant has accepted the factual basis presented underlying the guilty plea…. Moreover, we have previously permitted a court reviewing the voluntariness requirement to … review the record of the postconviction hearing.” Id., 232 Wis. 2d 714, ¶23. Further, the record reviewed may include the record of the sentencing hearing and defense counsel’s statements concerning the factual basis. Id., ¶24.

State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein

Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:

¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. ^[6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct.

¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree.

…

¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute.

State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.

¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error.¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3).

Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.

State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson

Issue: Whether “death scene” analysis from an FBI agent was admissible to establish cause of simultaneous death of two elderly individuals found dead in their home.

Holding:

¶25      The general field of crime scene analysis has been recognized as being a body of specialized knowledge. United State v. Meeks, 35 M.J. 64 (C.M.A. 1992). …¶¶26     Through education and experience, Safarik had the necessary knowledge to provide helpful answers the jury could use in answering the central question, whether the Recobs died simultaneously from natural causes or as the result of homicide. …

…

¶28      The jury was required to resolve a double homicide with no witnesses. The bodies were found in a decomposed and mummified state, raising questions as to the manner or cause of death. The jurors, faced with such a repellent job, would be assisted by a specialized analysis of the crime scene in light of other equivocal deaths and homicide cases. “A homicide and its crime scene, after all, are not matters likely to be within the knowledge of an average” juror. Meeks, 35 M.J. at 68-69. <> ¶29      One example of Safarik’s specialized analysis is his conclusion that there was “staging” at the death scene that was consistent with homicide. … It is beyond the everyday knowledge of an average juror to recognize evidence of “staging” or to understand the implication of such evidence. And, it is certainly beyond the ability of the average juror to correlate all nine factors Safarik considered in reaching his expert opinion. ^[6]