On Point

State v. Audrey A. Edmunds, 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence, a recent revision in symptomatology of shaken baby syndrome isn’t procedurally barred notwithstanding a previous such effort:

¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

State v. Audrey A. Edmunds, 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Edmunds was convicted over a decade ago of causing the death of a baby in her charge; death was attributed to shaken baby syndrome. The State’s theory, adduced through a number of experts, was that a “lucid interval” was impossible for such trauma; when the baby was dropped off at Edmunds’ she appeared to be fine; therefore, Edmunds must have caused her death. Edmunds, however, now presents a number of experts to say that that there is at least a significant debate in the medical opinion on the matter of a “lucid interval,” so that what would have been at the time of trial a fringe view in support of the theory of defense is now much more accepted. The State challenged this view with experts to say that nothing has changed. The trial court determined that the State’s experts were more credible and therefore that Edmunds hadn’t met her newly discovered evidence burden of showing a probability of a different result. The court of appeals reverses:

¶18      Here, the circuit court expressly found that Edmunds’s new evidence and the State’s new evidence were both credible. The court then weighed the evidence and concluded that the State’s evidence was stronger. Under McCallum, the court applied the wrong legal standard. After determining that both parties presented credible evidence, it was not the court’s role to weigh the evidence. Instead, once the circuit court found that Edmunds’s newly discovered medical evidence was credible, it was required to determine whether there was a reasonable probability that a jury, hearing all the medical evidence, would have a reasonable doubt as to Edmunds’s guilt. This question is not answered by a determination that the State’s evidence was stronger. As explained in McCallum, a jury could have a reasonable doubt as to a defendant’s guilt even if the State’s evidence is stronger.…

¶22      … [O]ur only clear guidance comes from how the court described a reasonable probability in McCallum, 208 Wis. 2d at 474: “The correct legal standard when applying the ‘reasonable probability of a different outcome’ criteria is whether there is a reasonable probability that a jury, looking at both [the old and the new evidence], would have a reasonable doubt as to the defendant’s guilt.” Under this test, the dispute as to whether a defendant needs to show that confidence in the outcome of the trial is undermined or make an outcome determinative showing becomes a very fine distinction. …

¶23      The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds’s trial as to the cause of the types of injuries Natalie suffered. We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie’s injuries arose, and that the new evidence does not completely dispel the old evidence. Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds’s trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence. At trial, and on Edmunds’s first postconviction motion, there was no such fierce debate. Thus, the State was able to easily overcome Edmunds’s argument that she did not cause Natalie’s injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds’s guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds’s guilt. Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds’s guilt. Accordingly, we reverse and remand for a new trial.

State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner

Issue/Holding:

¶70      To constitute mayhem, the State must show that the defendant had (1) the specific intent to disable or disfigure; (2) by cutting or mutilating the tongue, eye, ear, nose, lip, limb, or other bodily member; and (3) the cutting or mutilating produced great bodily harm. Wis JI——Criminal 1246. ^[33]¶71      A specific intent to disable or disfigure is distinguishable from a general intent. A general intent to do the acts and the consciousness of the nature of the acts and possible results differs from the specific intent to do the intended harm, i.e., the specific intent to disable or disfigure. Kirby v. State, 86 Wis.  2d 292, 301, 272 N.W.2d 113 (Ct. App. 1978); State v. Weso, 60 Wis.  2d 404, 411-12, 210 N.W.2d 442 (1973).

¶72      Mayhem requires great bodily harm, although the Jury Instruction Committee has been skeptical of this assertion. …

Issue/Holding: A forehead is a “bodily member” for purposes of the mayhem statute, § 940.21.

The opinion includes a very lengthy recitation of statutory history of mayhem, going back to the Coventry Act of 1670.Distilled, here’s the lesson to take away: “the manner in which the legislature uses the phrase ‘other bodily member’ indicates that the legislature intended that phrase to be construed broadly, and thus we have given effect to that intent,” ¶57. That, and the court’s casual recognition, “Mayhem is rarely charged because of the number of other statutes that can be charged in its place. It will likely continue to be rarely charged due to the difficulty in proving a specific intent,” ¶ 69, n. 31.

State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak

Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.

There is, of course, a whole lot more to it than that, at least in terms of getting to that point, but this may be the nub of it:

¶17      We conclude that the 1965-1972 version of Wis. Stat. § 939.74 governs the case at issue because (1) here, the offenses allegedly occurred prior to the effective date of § 939.74(2)(c), which was July 1, 1989; and (2) the legislature did not include chapter 944 crimes in subsection (2)(c) of § 939.74 even though it specifically included chapter 948 crimes. Accordingly, neither the 1987 amendment to § 939.74, which created subsection (2)(c), nor any subsequent amendment to subsection (2)(c) applies to the case at hand.

¶18      Wisconsin Stat. §§ 990.06 and 991.07 ^[12] instruct that when a limitation period has been repealed and the repealing act provides for a new limitation period, “such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect” and the repealed act shall continue in force and be operative unless the repealing act specifically provides otherwise.

¶19      Applying Wis. Stat. §§ 990.06 and 991.07 to the case at hand, we conclude that Wis. Stat. § 939.74(2)(c) (1987-88) (effective July 1, 1989), does not apply to MacArthur. The causes of action here accrued between 1965 and 1972. …

…

¶26      In summary, by its plain language, no version of subsection (2)(c) applies to the chapter 944 charges from 1965-1972. The 1987 version of Wis. Stat. § 939.74 does not apply because it specifically stated that subsection (2)(c) was to apply only prospectively from July 1, 1989, and subsection (2)(c) listed only chapter 948 offenses, thus leaving out any mention of “predecessor statutes” to chapter 948. The 1993, 1997, and 2003 versions do not apply to the case at hand for two reasons. First, the legislature has not specifically withdrawn the 1987 directive to apply subsection (2)(c) only prospectively. Second, the post-1987 amendments apply only to claims not yet barred by a previous version of subsection (2)(c). The 2005 version of Wis. Stat. § 939.74 does not apply because it became effective after MacArthur was charged with these offenses.

This result seems, at first glance to be very fact-specific (which is to say, limited to repealed ch. 944 offenses), but the concurrence (¶¶55-65) argues that the implications are quite broad. Perhaps so if, for a superceding statute of limitations to have retroactive effect, the statutory language must so specify.

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding: Defendant did not satisfy his burden of proving indigency, for purposes of invoking inherent judicial authority to appoint counsel, where he failed to submit information regarding attempts to retain counsel as well as information relative to rental property, ¶18.

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding:

¶27      We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy is in fact “indigent.” Id. at 512-14. A defendant may be found ineligible by the SPD, but still demonstrate he/she is unable to retain and pay for private counsel. If that is the case, the circuit court shall consider all relevant information submitted, on a case-by-case basis, to decide whether the defendant truly is indigent and whether counsel should be appointed at county expense. Id. at 514.¶28      The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. In other words, the first step for a defendant in seeking appointment of counsel based on inability to pay must be with the SPD. A defendant must fully and timely cooperate with the SPD so that it can make an accurate determination of eligibility. The inherent authority of the circuit court is not intended to replace the SPD appointments. Rather, it is intended to cover those circumstances where a defendant does not satisfy the legislatively created SPD criteria for appointment, but still demonstrates indigency.

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding¹:

¶11      Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis.  2d at 511. However, whether Kennedy “was denied a constitutional right is a question of constitutional fact that we review independently.” See id.¶12      Wisconsin Stat. § 977.06(4) provides in pertinent part that: “A circuit court may review any indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state public defender.” In Dean, we addressed the same issue, engaged in statutory construction of the statutes, and determined that under the statute the circuit court’s “‘review [of] any indigency determination’ is limited to determining whether the public defender properly followed the legislative criteria.” Id., 163 Wis.  2d at 511 (citation omitted). The legislative criteria are set forth in detail in Wis. Stat. § 977.07(2). In general, the assessment involves a calculation of whether a person’s liabilities are greater than his/her assets. See id.

Issue/Holding²: Circuit court refusal to overturn SPD refusal to appoint counsel, based on defendant’s failure to submit sufficient documentation to make an indigency evaluation is sustained:

¶15      The circuit court’s finding in this regard is not clearly erroneous. It is the defendant’s burden to submit documentation sufficient and current so that an accurate assessment of financial circumstances can be made. See Buelow, 122 Wis.  2d at 472. Although Kennedy submitted exhibits purporting to show that he does not have any income and is unemployed, he also submitted evidence showing ownership of three properties but failed to document income from the properties. Like the trial court, with only this documentation, we cannot conclude that the SPD erred in rendering its non-indigency determination. Accordingly, we must conclude that the trial court did not err in its review of the SPD determination. Based on the circumstances presented to it, this was the only reasonable determination it could make. ^[4]

Kennedy’s effort to have the circuit court reconsider meets the same fate, largely for the same reason; although he submitted additional documentation, it was incomplete:

¶24      Kennedy then filed a motion with the circuit court, challenging the SPD denial and seeking appointment of counsel. He alleged in the reconsideration motion that the SPD miscalculated his financial status and the trial court erred in relying on the miscalculation. The problem with this argument is that Kennedy failed to submit to the circuit court all the documentation he alleges was filed with the SPD. There is nothing in the record revealing the SPD’s specific calculation, what numbers they used or how they reached their financial ineligibility conclusion. It is Kennedy’s responsibility to make sure that the record contains the necessary information to support his argument. See State Bank of Hartland v. Arndt, 129 Wis.  2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). Without that information in the record, we assume that the trial court’s determination, based on the SPD’s calculation was correct. See id. (“Given an incomplete record, we will assume that it supports every fact essential to sustain the trial court’s exercise of discretion.”) (citation omitted). Thus, the circuit court did not err in rejecting Kennedy’s arguments on reconsideration relating to the SPD “miscalculation” of his financial status or the circuit court’s reliance thereon.