On Point

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding: Markwardt’s in-custody statement was voluntary: any stress she was under was “unrelated to police conduct” (¶37); she didn’t unequivocally assert her rights (¶40); that the interrogator “was at times confrontational and raised his voice is not improper police procedure and does not, by itself, establish police coercion” (¶42, citing State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996)); “although Markwardt was questioned for two hours, the questioning was not continuous but was punctuated by two breaks …. neither Markwardt’s length of custody nor her interrogation qualifies as coercive police conduct” (¶44-46); her handcuffs were removed an hour before the interrogation (¶¶47-48):

¶49   In short, none of the police conduct, when considered independently, or when considered as a whole, rises to the level of coercive misconduct. …

¶50   As such, it is improper to consider Markwardt’s personal characteristics because consideration of Markwardt’s personal characteristics is triggered only if there exists coercive police conduct against which to balance them. See State v. Clappes, 136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987) (A defendant’s personal characteristics “only become determinative in the voluntariness analysis when there is something against which to balance them.”). Here, we do not reach the balancing test because there is no coercive police conduct against which to balance Markwardt’s personal characteristics.

Not raised by the facts of this case, but well worth keeping in mind is the distinction between voluntary and knowing-intelligent waiver, as recently discussed by Garner v. Mitchell, 6^th Cir No. 02-3552, 9/11/07, fn. 5:

In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court held “that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary,’” but did not suggest that coercive police activity is a necessary predicate to a conclusion that a waiver of Miranda rights was not knowing or intelligent. Id. at 167; see also United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998); Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir.) (“We do not read the Connelly decision as demonstrating an intent to eliminate this distinction between voluntariness and knowing waivers.”), cert. denied, 486 U.S. 1061 (1988). Indeed, the ConnellyCourt noted that an expert witness “testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when [the police] advised him that he need not speak.” Connelly, 479 U.S. at 161-62.

We recognize that the Supreme Court’s requirement that a Miranda waiver be made knowingly and intelligently may, on occasion, put the police in the difficult position of having to assess a suspect’s understanding and intellectual capacities at the time of interrogation. This difficulty is not wholly unique, however, as courts face similar difficulties, for example, when assessing a defendant’s competency and understanding during a plea colloquy or when a defendant waives the right to counsel. Suspicions that a suspect’s initial Miranda waiver was not made knowingly and intelligently also do not preclude the police from interrogating the suspect later under different circumstances—for example, following evaluation by a mental-health professional, following treatment, or in the presence of a lawyer, see, e.g., In re B.M.B., 955 P.2d 1302, 1309-13 (Kan. 1998); cf. infra note 10—if the police desire greater assurances that the suspect’s statement will be deemed admissible at trial.

To suggest as the dissent does, however, that the validity of a Miranda waiver depends only on the objective conduct of the police is to read the requirement that a valid waiver be “a knowing and intelligent relinquishment or abandonment of a known right or privilege,” Edwards, 451 U.S. at 482, out of the Supreme Court’s Mirandajurisprudence. Under the dissent’s formulation, even a suspect who did not hear hisMiranda rights being read somehow could give a knowing and intelligent waiver, so long as the police had no reason to believe that the suspect did not hear.

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
Issue/Holding:

¶23      Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know. A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant. A notice of motion and motion to suppress and the notice of intent to pursue postconviction relief are meaningless to the discussion of the issues at bar. Here, the trial court provided extensive oral decisions on the issue of whether Ramstack properly detained Bons and the question of whether Bons voluntarily consented to the searches of his vehicle or trunk. Both of these oral decisions were “essential to an understanding of the issues raised.” Neither were in the appendix. Yet, Gorokhovsky certified that the essential items were in his appendix. They were not. Therefore, his certification is false. In fact, no items essential to our understanding of the issues were in his appendix.

¶24      Filing a false certification with this court is a serious infraction not only of the rule, but it also violates SCR 20:3:3(a) (2006). This rule provides, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.” By attesting that he complied with the appendix rules when he did not, Gorokhovsky made such a false statement.

¶25      Gorokhovsky’s deficient appendix placed an unwarranted burden on this court. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. § 809.83(2) (2005-06). Accordingly, we sanction Gorokhovsky and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion.

Judge Brown’s concurrence (¶¶26-30) both stresses the importance of a complete Appendix and laments the current tendency to burden the court with “worthless” Appendices. The certification requirement is meant to improve this practice and, in the event you missed the point of raking the unfortunate Mr. Gorokhovsky over the coals: “It is time that the rule was enforced.” Indeed, the underlying search and seizure issue seems to be so utterly mundane that the only purpose of publication is to drive home the need for more complete Appendices. In this respect, it’s probably not irrelevant that the same sort of transgression also resulted in a $150 fine, but in an unpublished opinion, State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06. And lest you think this is a merely parochial concern, you might want to take a look at U.S. v. White, 472 F3d 458 (7th Cir 2006) (order to show cause why counsel should not be fined $1000 for same sort of violation—yep, that’s one more digit than our COA thought necessary for condign punishment; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules).

State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: ¶6 n. 4:

We observe that Kliss, in his appellate brief, is inconsistent in his use of pinpoint citations for the case law he invokes to support his legal contentions. Wisconsin Stat. Rule 809.19(1)(e) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02. A citation to a specific legal principle from case law shall include a reference to the page number, or paragraph number if a public domain citation is available, where the legal principle may be found. SCR 80.02(3). The rules of appellate practice are designed in part to facilitate the work of the court and such intermittent compliance with the rules improperly burdens the appellate court.

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

Issue/Holding:

¶14      … The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle. ^[4] …

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 ^[4]  The dissent faults the State for making this concession. Dissent, ¶60 n.2. It also takes Johnson to task for not raising the issue of whether his consent was voluntarily given. Id. It asserts that, due to the State’s concession, this court “must raise and decide the issue of consent to search Johnson’s vehicle with no assistance to this court from either party.” Id.
We note, however, that an attorney has an ethical obligation not to make arguments before the tribunal that the attorney believes to be frivolous. Compare SCR 20:3.1(a) with Wis.  Stat. § (Rule) 802.05. Cf. State v. Parent, 2006 WI 132, ¶19, ___Wis. 2d ___, 725 N.W.2d 915. Thus, even when a concession of law is not accepted by a court, a prosecutor should be commended, not condemned, for exercising careful judgment and attempting to conform to our rules. Of course, a concession of law does not bind the court. The court determines the law, not the parties. Bergmann v. McCaughtry, 211 Wis.  2d 1, 7, 564 N.W.2d 712 (1997). …

A somewhat obscure but non-controversial matter: the reviewing court isn’t bound by a State’s concession of error in a criminal case but must instead conduct its own, independent review of the issue. Civil appeals are handled differently, of course, a concession by a party being the end of it; c’est la guerre (or is it, vive la difference?). The twist here is the majority’s assertion that the dissent “takes Johnson to task” not himself raising the State-conceded issue. It would be troubling, indeed, if any Justice undertook to criticize defense counsel for, in effect, failing to sua sponte raise a seemingly uncontroverted issue. But the majority does seem to have overstated the dissent’s criticism—rather, the dissent seems to be saying only that the absence of adversarial argument doesn’t bar the court’s review. And as noted, this is not a controversial position. It ought to be stressed that the particular issue (consent to search) was raised in the trial court, so the record was fully developed on the point; otherwise, quite different concerns relating to State waiver and denial of the defense right to a full and fair suppression hearing probably would have barred review.

Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm

Issue/Holding: Reply brief failure to address argument raised in response brief may be deemed conceded for purposes of appeal, ¶23 n. 7, citing Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (Ct. App. 1999).

State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: Failure of a response brief to dispute a proposition in appellant’s brief may be taken as implicit concession of the proposition, ¶6 n. 3.

State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters

Issue/Holding: Footnote 1:

Patrick Jackson’s notice of appeal says that he is appealing the trial-court order denying his motion for postconviction relief. The notice of appeal does not also indicate that he is also appealing from the judgment of conviction. This defect, however, is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him. First, if the notice of appeal had, in haec verba, indicated that it was also appealing the judgment, it would have been timely because it was filed within twenty days of the trial court’s order denying Jackson’s motion for postconviction relief. See Wis. Stat. Rule 809.30(2)(j) (“The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion.”) (emphasis added). Second, it is a general rule of appellate jurisdiction that “all orders or rulings affecting both the respondent and the appellant when so reasonably related, may be heard whether appellant has included in his notice of appeal every part of the order or judgment or not.” Jones v. Pittsburgh Plate Glass Co., 246 Wis. 462, 468, 17 N.W.2d 562, 565 (1945). Thus, Wis. Stat. Rule 809.10(1)(f) recognizes that “[a]n inconsequential error in the content of the notice of appeal is not a jurisdictional defect.” Cf. Rule 809.10(4) (“An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.”). Accordingly, we review all the matters he has raised that affect the judgment entered against him as well as those that affect the trial court’s order denying his motion for postconviction relief.