On Point

State v. Vincent T. Grady, 2007 WI 81, reconsideration denied, 2007 WI 125, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶16 We first address whether Wis. Stat. § 973.017(10) precludes appellate review of a circuit court’s consideration of an applicable sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a). Wisconsin Stat. § 973.017(10) provides the following:

(10) Use of Guidelines; No right or basis for Appeal. The requirement under sub. (2)(a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court’s sentencing decision based on the court’s decision to depart in any way from any guideline.

…

¶18      Nothing in the language of § 973.017(10) suggests that a circuit court’s failure to consider an applicable sentencing guideline pursuant to § 973.017(2)(a) is not a valid grounds for appeal. Therefore, we conclude that like the other provisions of Wis. Stat. ch. 973 that establish obligations for circuit courts during sentencing, an appellate court may review whether or not a circuit court satisfied its § 973.017(2)(a) obligation.^[5]

---

 ^[5] See, e.g., State v. Campbell, 2006 WI 99, ¶¶77-78, 294 Wis. 2d 100, 718 N.W.2d 649 (court reviewed whether a circuit court properly imposed attorney fees pursuant to Wis. Stat. §§ 973.06(1)(e) and 973.09(1g)); State v. Beets, 124 Wis. 2d 372, 374, 369 N.W.2d 382 (1985) (court reviewed whether Wis. Stat. § 973.155(1)(1981-82) required a sentencing credit); State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24 (court reviewed whether Wis. Stat. § 973.01(2)(1999-2000) permitted a penalty enhancer to be applied to the term of extended supervision); State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.20(1r)(1997-98) obligation related to imposing restitution); State v. Pope, 107 Wis. 2d 726, 731, 321 N.W.2d 359 (Ct. App. 1982) (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.09(1m)(1979-80) obligation to consider the financial resources and future ability of the probationer to pay when establishing the amount of restitution and method of payment). …

The court of appeals had held “that §973.017(10) precludes appellate review of the circuit court’s alleged noncompliance,” 2006 WI App 188, ¶4, so that holding is now clearly overruled.

Issue/Holding²:

¶33      The consideration of an applicable sentencing guideline must be found in the record. Appellate review of a circuit court’s exercise of discretion depends on appellate courts being able to access a circuit court’s acts of discretion from the record. …

…

¶35      The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation. “Individualized sentencing, after all, has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.” Gallion, 270 Wis. 2d 535, ¶48.

¶36      In this case, the record of the postconviction motion hearing reveals that the sentencing judge considered the applicable guideline during the sentencing hearing. During the hearing on Grady’s postconviction motion, Judge DiMotto explicitly stated that she had considered the sentencing guideline for armed robbery when she sentenced Grady. In the order denying Grady’s postconviction motion, the court also stated that it “considered the sentencing guidelines without explicitly identifying that fact and it is clearly apparent from the record that the court did so.” Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient. Nevertheless, in this case, we are satisfied that Judge DiMotto considered the applicable sentencing guideline during Grady’s sentencing hearing.

…

¶43      (W)e reject Grady’s suggestion that § 973.017(2)(a) requires the sentencing court to explain its use of any applicable guideline.

¶44      Based on the enacted language and context, we hold that a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record.

¶45      Although the concept of sentencing guidelines has existed for over 25 years, there has been uncertainty about their use. Because our holding will require different practices by circuit courts sentencing defendants, this decision will become effective for any sentencing occurring after September 1, 2007.

The long and short of it seems to be that “a sentencing court must consider an applicable guideline, not explain it,” ¶42. You might think that adequate regard for the “applicable guideline” would require both completion of the guideline worksheet and also consideration of the guideline’s recommended range—nonetheless, the court rejects any such requirement, ¶¶38-39.The court stresses on reconsideration, 2007 WI 125:

when a circuit court’s consideration of sentencing guidelines is reviewed, the reviewing court may not supplement the sentencing record with evidence outside the sentencing hearing for any sentencing occurring after September 1, 2007. Whether a circuit court has met its § 973.017(2)(a) obligation in a sentencing after that date must be determined from the record of the sentencing hearing.

State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
For Nelis: Robert A. Ferg

Issue/Holding:

¶45      Although Steve Stone testified at trial, Nelis argues that Steve Stone did not have the opportunity to explain or deny his alleged oral statements because the State did not examine him concerning such statements, and the oral statements were not made known prior to Police Chief Stone’s testimony. The State argues that there was no violation of Nelis’ right to confrontation under Crawford because Steve Stone testified at trial and was cross-examined by the defense.¶46      Nelis’ right to confrontation was not violated because “the Confrontation Clause places no constraints at all” on the use of prior testimonial statements when the declarant appears for cross-examination, as did Steve Stone. Crawford, 541 U.S. at 59 n.9 (citation omitted). ^[5]  It makes no difference, under the circumstances here, whether the burden is on the State or on Nelis to show that Steve Stone was available for further cross-examination after the court told him he could “step down.” Steve Stone testified at trial and was cross-examined concerning his statements to the police; therefore, Nelis’ right to confrontation was not violated.

---

 ^[5] We agree with the concurrence that Nelis’ right to confrontation under Crawford is not implicated. Concurrence, ¶¶53, 73, 80. However, because Nelis raised arguments concerning Crawford in his briefs and at oral argument, we address those arguments here.

State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee

Issue/Holding:

¶24      We note that there is support for the proposition that the hallmark of testimonial statements is whether they are made at the request or suggestion of the police. See State v. Barnes, 854 A.2d 208, 211 ( Me. 2004). In our view, however, the Sixth Circuit’s decision in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), aptly describes why such an inquiry is insufficient under Crawford:

Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. . . . If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

Id. at 675. Thus, we believe a broad definition of testimonial is required to guarantee that the right to confrontation is preserved. That is, we do not agree with the State’s position that the government needs to be involved in the creation of the statement. ^[8] We believe such a narrow definition of testimonial could create situations where a declarant could nefariously incriminate a defendant.

---

^[8]  We note that recently in State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, the court of appeals held that a declarant’s spontaneous statement to responding police officers implicating the defendants in a crime was deemed nontestimonial. The court reasoned, in part as follows:

The statement made by [the declarant] in the instant case does not fall into any of the identified categories of “testimonial” statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. [The declarant] offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the [declarant’s] statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular subject.

Id., ¶11. We do not read Crawford in such a restrictive light. Under the definition of testimonial adopted today we must overrule Hemphill.

It simply isn’t possible to say precisely what implications flow from overruling Hemphill, though at minimum it would seemingly be that the mere unsolicited nature of a statement doesn’t throw it outside of confrontation analysis. The Hemphill methodology has certainly been invalidated, but the court doesn’t distinctly say that the result was therefore wrong. Hemphill, it should be noted, was an excited utterance case, 2005 WI App 248, ¶13; Jensen is not. Does this mean that Jensen has now declared all excited utterances to the police necessarily testimonial? Hard to see how, in light of Davis v. Washington. Also see State v. Ohlson, 168 P. 3d 1273 (Wn. 2007) (per se rule that excited utterance necessarily testimonial “is no longer tenable”). Rather, it probably just means that a court can’t avoid a threshold determination of whether the statement is testimonial merely because it is spontaneous. Note, as well, State v. Roberto Vargas Rodriguez, 2006 WI App 163, an excited utterance case which relied heavily on Hemphill and whose result therefore might have been thrown in doubt — except that on remand for reconsideration in light of Jensen the court “assume(d), without deciding, that the statements were testimonial,” but affirmed the result on the distinct ground of forfeiture, 2007 WI App 252, PFR denied 2/21/08.

State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen

Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:

¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father’s vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide’s vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide’s vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun’s father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide’s vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.¶29      Due to these dissimilarities, we conclude that Muckerheide’s offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts “is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged.”

State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. One noteworthy point: Muckerheide argued that Sullivan’s 3^rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.

State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly

Issue/Holding¹: Weaving within lane of travel doesn’t support bright-line rule justifying stop for suspicion of drunk driving:

¶14      The State contends that Sergeant Sherman had reasonable suspicion to stop Post. It advocates the view that repeated weaving of a motor vehicle within a single lane (absent an obvious innocent explanation) provides the reasonable suspicion to make an investigatory stop. While we agree that the facts of the case give rise to a reasonable suspicion that Post was driving while intoxicated and that the investigative stop was reasonable, we reject the bright-line rule that repeated weaving within a single lane alone gives rise to reasonable suspicion. Rather, our determination is based on the totality of the circumstances, in accord with Wisconsin jurisprudence.

…

¶19      Further, the State’s proffered bright-line rule is problematic because movements that may be characterized as “repeated weaving within a single lane” may, under the totality of the circumstances, fail to give rise to reasonable suspicion. This may be the case, for example, where the “weaving” is minimal or happens very few times over a great distance. ^[4] Courts in a number of other jurisdictions have concluded that weaving within a single lane can be insignificant enough that it does not give rise to reasonable suspicion.^[5] In such cases, weaving within a single lane would not alone warrant a reasonable police officer to suspect that the individual has committed, was committing, or is about to commit a crime.

¶20      In addition, the rule that weaving within a single lane may alone give rise to reasonable suspicion fails to strike the appropriate balance between the State’s interest in detecting, preventing, and investigating crime with the individual’s interest in being free from unreasonable intrusions. …

¶21      Because the standard proffered by the State can be interpreted to cover conduct that many innocent drivers commit, it may subject a substantial portion of the public to invasions of their privacy. It is in effect no standard at all. Adopting it here would allow essentially unfettered discretion and permit the arbitrary invasions of privacy by government officials addressed by the Fourth Amendment and Article I, Section 11. …

The court, footnote 6, rejects comparison of discretionary cause-based and discretionless check-point stops such as authorized by Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451-55 (1990): the very basis for the latter is their “minimally intrusive nature,” such that reliance to bolster a discretionary stop would “turn that [principle] on its head.” Nor is there a bright-line rule that would permit a stop only where movement is erratic, unsafe, or illegal supportable:

¶22      Like the State, Post offers a bright-line rule for determining reasonable suspicion. He argues that movements within a lane can give rise to the reasonable suspicion necessary to justify an investigative stop only where the movements are erratic, unsafe, or illegal. ^[7] We reject this bright-line rule as well.

¶23      Post’s claim that lateral movements must be erratic, unsafe, or illegal in order to generate reasonable suspicion is belied by our decision in Waldner. …

¶24      Further, it is clear that driving need not be illegal in order to give rise to reasonable suspicion. … We therefore determine that a driver’s actions need not be erratic, unsafe, or illegal to give rise to reasonable suspicion.

…

¶26      Thus, we adopt neither the bright-line rule proffered by the State that weaving within a single lane may alone give rise to reasonable suspicion, nor the bright-line rule advocated by Post that weaving within a single lane must be erratic, unsafe, or illegal to give rise to reasonable suspicion. Rather, we maintain the well-established principle that reviewing courts must determine whether there was reasonable suspicion for an investigative stop based on the totality of the circumstances.

State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly

Issue/Holding: 

¶28 As in Waldner, the police officer in the present case did not observe any actions that constituted traffic violations or which, considered in isolation, provided reasonable suspicion that criminal activity was afoot. However, when considered in conjunction with all of the facts and circumstances of the case, Post’s driving provided Sherman with reasonable suspicion to believe that Post was driving while intoxicated.

…

¶35 …. Sherman’s testimony indicates that Post’s weave was between five feet and nine feet, based on his individual estimates of distances. Sherman further testified that Post’s vehicle moved laterally ten feet.

¶36 However, the width of Post’s weaving is not the only specific, articulable fact in the case. It is noteworthy that the single lane here, described as between 22 and 24 feet, is approximately twice as wide as the standard single lane. [12] Post’s vehicle moved in a discernible S-type pattern within that single lane, and it repeated that S-type pattern several (or “a few”) times for two blocks. When Sherman first observed Post’s vehicle, it was “canted into the parking lane” and “wasn’t in the designated traffic lane.” Finally, we note that the incident took place at 9:30 at night. While this is not as significant as when poor driving takes place at or around “bar time,” it does lend some further credence to Sherman’s suspicion that Post was driving while intoxicated. [13]

¶37 When viewed in isolation, the individual facts that Post was weaving across the travel and parking lanes, that the weaving created a discernible S-type pattern, that Post’s vehicle was canted into the parking lane, and that the incident took place at night may not be sufficient to warrant a reasonable officer to suspect that Post was driving while intoxicated. As this court stated in Waldner, “[a]ny one of these facts, standing alone, might well be insufficient.” 206 Wis. 2d at 58. However, such facts accumulate, and “as they accumulate, reasonable inferences about the cumulative effect can be drawn.” Id. We determine, under the totality of the circumstances, that Sherman presented specific and articulable facts, which taken together with rational inferences from those facts, give rise to the reasonable suspicion necessary for an investigative stop. Accordingly, the stop did not violate Post’s constitutional right to be free from unreasonable searches and seizures.

No bright-line rule; deviation within a lane alone does not either allow or inhibit an investigatory stop: fair enough, but what more was there on these facts? Do the sparse additional facts really add any heft to reasonable suspicion? When you get right down to it, about all they had was weaving within the lane plus the time of day was 9:30 p.m. The court concedes that the time isn’t really significant, so it seems to boil down to weaving within-lane after all, even if the court doesn’t want to say so. What the court does say is “that this case presents a close call,” ¶27, creating a fair assumption that these facts present the outer limit of what the court will permit. Similar driving in the afternoon might well not support a stop. You’d be hard pressed to say exactly why time of day matters so much, but the court has itself established the ground-rules and they include the idea, defensible or not, that late-evening driving weighs in favor of suspicion; an earlier time must necessarily weigh less if not against. But preoccupation with time of day shouldn’t obscure the extent of “weaving”: it went on in a “pattern” for two blocks in a lane twice the width of a “standard” lane, which means that the “deviating” was pretty aggravated. Hard to escape the idea that the court figured Post was simply fortunate to be in a very wide lane and would’ve gone well over the center line of a normal roadway. To be sure, that’s not explicitly what the court said, but its stress on the absence of any bright-line rule and its failure to come up with anything else doesn’t leave much by way of alternative.

The Chief Justice in (partial) dissent identifies the problem as an absence of relevant fact-finding. (“The circuit court made no findings of fact,” ¶47.) The majority, the dissent indicates, goes awry in filling this vacuum with its own fact-finding, ¶¶49-53; the case should be remanded so a proper record can be made, ¶59. Well, this case is done and it won’t be remanded—what’s the lesson for the practitioner? In architecture, form follows function, but a similar dynamic in law would be result-oriented; hence the obsession with process, more or less inverting this principle so that it is restated as, substance follows procedure. Which is just a fancy way of saying, in the right case and under the right circumstances you might have to press the trial court to make findings of fact. Might be a lesson, too, for appellate practitioners. You already know how useful demonstrative aids are for jurors, but keep in mind that appellate judges aren’t any different (well, not in this way at least). Trust the Chief Justice to remind us, ¶58, citing Coffey v. N.E. Ill. Reg’l Commuter R.R. Corp., 479 F.3d 472, 478 (7th Cir. 2007), of:

… Judge Richard Posner’s comment in a recent case …: “This case illustrates the curious and deplorable aversion of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a verbal description.”

You can’t go wrong when you quote Judge Posner, so here’s another, from U.S. v. Boyd, 475 F.3d 875 (7th Cir 2007) (appending downloaded Google satellite photo of scene of crime so everyone, appellate court included, could have a good visual inspection of the scene):

… The judge made no finding concerning the number of persons on the streets near the shooting (another conflict in the evidence that she did not try to resolve) or whether any persons were in the alley when and where the shooting took place. There was also no evidence on whether there are apartment buildings as well as office buildings in the vicinity of the shooting.
Despite these gaps, we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

To avoid the wrong impression: no one’s saying Post’s counsel could let alone should have done more. It’s just that even well-litigated cases allow a certain amount of extrapolation, which in this instance would be: it’s wise to keep in mind for any given case that there’s an increasing amount of publicly accessible information that the court is increasingly interested in.

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶23      In Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Michigan v. Long, 463 U.S. 1032 (1983), the United States Supreme Court applied the principles of Terry to the validity of protective searches executed during a roadside stop. In Mimms, 434 U.S. at 111, the Court established a per se rule that an officer may order a person out of his or her vehicle incident to an otherwise valid stop for a traffic violation. However, to conduct a protective search of that person, the Mimms Court concluded an officer must be able to point to specific, articulable facts supporting a reasonable suspicion that the person is dangerous and may have immediate access to a weapon. Id. at 111-12.

¶24      Similarly, in Long, the Supreme Court held that officers may under the proper circumstances conduct a protective search of the passenger compartment of a vehicle during a traffic stop. Citing Terry, Long concluded that such a search is justified when an officer reasonably suspects that the person “is dangerous and . . . may gain immediate control of weapons” placed or hidden in the passenger compartment. Long, 463 U.S. at 1049.