On Point

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.

 State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding:

¶6       Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI. The court held a hearing on the issue, at which Thexton’s attorney proposed that the court order the prior PSI released to the parties, and the court did so. The State argues that Thexton’s trial counsel invited the error by specifically asking the circuit court to release the report. See Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (appellate court will not review error invited by appealing party). We agree that the issue is waived; specifically, Thexton is judicially estopped from claiming that the court erred in doing precisely what he asked. See Rusk County Dept. of Health and Human Servs. v. Thorson, 2005 WI App 37, ¶5 n.4, 278 Wis. 2d 638, 693 N.W.2d 318 (“judicial estoppel bars litigant from argument directly contradictory to circuit court argument” (citation omitted)).

State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶12      Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt, 128 Wis. 2d 110, 124-26, 382 N.W.2d 679 (Ct. App. 1985). If, however, actions by the State prevented fact finding on an issue that could have been resolved, then waiver may be applied. See State v. Nichelson, 220 Wis. 2d 214, 230, 582 N.W.2d 460 (Ct. App. 1998). Here, the State did nothing to prevent necessary fact finding; on the contrary, the State initiated the process from which the trial court made the pretrial findings of witness intimidation that supported the order terminating Rodriguez’s access to telephone, mail and visitors in order to prevent further intimidation.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.

The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n. 12. That’s right, under the facts, but you wouldn’t want to overly generalize the result. A limiting instruction is available as a matter of right, § 901.07, which in this context would be something like: “You’ve heard evidence that in the face of a direct accusation of guilt the defendant lawyered up. You may not consider this assertion of right to counsel as evidence of guilt but instead you may consider it only as relevant to whether he’s a lying sack.” Indeed, the prosecutor, alert to the possibilities, requested that the jury’s use be “limited” to the following: “You may, as with any witness … consider evidence of his prior statements in assessing his credibility.” The trial judge refused that request and gave the defense something of a windfall: “… You must not consider that decision by Mr. Cockrell to seek the assistance of counsel [when questioned by the detective] to in any sense be evidence of guilt as to any charge.” (¶¶34-35) The argument on appeal that this instruction “erroneously failed to inform the jury that the State’s questioning regarding that silence could be considered solely with respect to impeaching his credibility” might be a bit too literal-minded.

The reality-based community of practitioners is likely to see in this context a “limiting” instruction as dicey at best, only drawing juror attention to an area best avoided. And granted moreover that this particular instruction was adequate to the assigned task: What about when there’s been no limiting instruction, due to oversight rather than strategy? Well, then you might be able to play on the sensibilities of appellate judges, who after all tend to view this sort of thing from the perspective of Mount Olympus. Just how is a jury supposed to know about the limited, non-substantive use of such very damning evidence? Consider, first of all, the fundamental principle that as a matter of fundamental due process a case may not be tried on one theory only to be affirmed on appeal by a distinct theory, e.g., Cole v. Arkansas, 333 U.S. 196 (1948). If the jury had no reason to suspect that the evidence came in for a limited, non-substantive purpose but indeed used it as direct evidence of guilt, then affirming on the theory that the evidence was used “only” on credibility might well violate due process. “A trial becomes unfair if testimony thus accepted may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected. People v. Zackowitz, 254 N.Y. 192, 200, 172 N.E. 466. Such at all events is the result when the purpose in reserve is so obscure and artificial that it would be unlikely to occur to the minds of uninstructed jurors, and even if it did, would be swallowed up and lost in the one that was disclosed.” Shepard v. United States, 290 U.S. 96, 103 (1933). Take into account that Shepard dealt with distinct and relatively extreme facts, but its underlying idea might well have some broader traction, at least in the right case.

There might also, again under the right set of facts, be a related but still somewhat obscure “law of the case” argument—which says that (within limits) you have to gauge the evidence by the unobjected-to instructions, see, e.g., United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999) (“‘When a cause is submitted to the jury under an instruction, not patently incorrect or internally inconsistent, to which no timely objection has been lodged, the instruction becomes the law of the case.’ United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992)”). In other words, “law of the case” might preclude an appellate court from saying that, despite absence of a limiting instruction, the evidence indeed was given limited effect.

State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Review of a published court of appeals’ decision by the supreme court leaves intact any portion of the opinion not reversed, ¶13 n. 4, citing State v. Jones, 2002 WI App 196, ¶40.

Jones itself holds:

We agree with the State that this exact claim has already been rejected in State v. Dowe, 197 Wis. 2d 848, 852, 541 N.W.2d 218 (Ct. App. 1995), rev’d on other grounds, 207 Wis. 2d 129, 557 N.W.2d 812 (1997), and that we are bound byDowe. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Although Dowe was reversed on other grounds, its double jeopardy holding remains good law. See State v. Byrge, 225 Wis. 2d 702, 717-18 n.7, 594 N.W.2d 388 (Ct. App. 1999) (“[H]oldings not specifically reversed on appeal retain precedential value.”).

State v. Dwight M. Sanders, 2007 WI App 174, affirmed, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding:

¶26   The State argues that our supreme court’s decision in Hughes validates the officers’ hot pursuit entry in this case. In Hughes, the court held that the crime of possession of marijuana was serious enough to justify the warrantless entry of an apartment under the exigent circumstance of preventing the destruction of evidence. Hughes, 233 Wis. 2d 280, ¶¶22, 30. The court refused to look only to the punishment for first-offense possession of marijuana, a misdemeanor, to determine the seriousness of the crime at issue.Id., ¶¶30, 34. Instead, the court opted for a broader approach that also considered the facts of the case that supplied the police with the probable cause to believe that the evidence of illegal drugs would be found within the apartment and the entire penalty structure for drug offenses. Id., ¶¶34-35.

The concurrence has some words on the subject, worth repeating:

¶40   One more thing. I wholeheartedly agree with the majority opinion’s rejection of the State’s argument that we need not follow Mikkelson because it is dicta. The State seems to think that if a narrower holding in the decision can be found, anything else written by the court on another ground is dicta. That is nonsense. First, courts can and often do give alternative reasons for their decisions. Alternative rationales are not dicta. Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”). Second, courts do not write just to pass the time away. We write because we have something that needs to be said. When we intentionally take something up, research it and provide a reasoned explication of what we want to say, it is for transparency purposes: it shows the public the factors that played an important part in the decision. It also shows the results of the collegial give-and-take that occurred during the decision process. And it shows that the court means to mark the law on a subject. Third, the old-world view that a dictum is a statement in an opinion not necessary to the decision of the case is, at its core, absurd. Taken to its logical end, the only statement in an appellate opinion strictly necessary to the decision is the order of the court. As one commentator has noted, a “quibble like this shows how useless the definition is.” Dictum Revisited, 4 Stan. L. Rev. 509, 509 (1952).

¶41   The term “dicta,” in my view, is often too broadly defined, usually by a lawyer who is searching for a way not to be bound by a prior published decision. But the term should be limited to those situations where a court notes, in passing, that a certain issue is lurking in the background, gives its off-the-cuff opinion without analysis and leaves it at that. That is what dicta is. Even though I disagree with Mikkelson, its discussion of Welsh was certainly not dicta. The panel zeroed in on Welsh, interpreted it and set a bright line rule. If the State disagrees with Mikkelson, and it obviously does, its recourse is to petition for review and ask the supreme court to overrule Mikkelson. But it should not try to pass it off as dicta.

And, the supreme court indeed overruled Mikkelson, 2008 WI 85, ¶94.

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Instructional error due to mandatory conclusive presumption wasn’t harmless:

¶28      As we have explained, the trial error consisted of an instruction that the jury must accept as true the elemental facts that Schultz acted inconsistently with the duties of her office and intended to obtain a dishonest disadvantage if the jury found that Schultz used state resources to promote a candidate or to raise money for political campaign purposes.  And, as we have concluded, this operated as mandatory conclusive presumptions in violation of Wis. Stat. § 903.03(3) because the court did not instruct the jury that it may, but need not, accept the elemental facts as true.  Thus, the instruction required the jury to find the intent and duty elements were met upon finding that Schultz participated in campaign activities on state time.  We conclude that Schultz’s substantial rights were affected because the instruction operated to relieve the State of its burden of proving beyond a reasonable doubt that Schultz acted inconsistently with her duties and with the intent to obtain a dishonest advantage for herself or another.  As the supreme court explained in Dyess, 124 Wis.  2d at 548:

It is apparent that a reviewing court cannot say that the loss of a jury right on a crucial issue guaranteed by the rules is of so little consequence as to be insubstantial.  Sec. 903.03(3) guarantees to criminal defendants that all presumptions used will have a permissive effect only—that only the jury can find the presumed fact upon the inferences from basic facts which themselves must be proved to the jury beyond a reasonable doubt.  This court cannot ignore its own rules and conclude that the deprivation of a substantial procedural and statutory right caused by faulty jury instructions did not, to a degree of reasonable possibility, contribute to the verdict of guilty.

In other words, the error contributed to Schultz’s conviction beyond a reasonable doubt.  See Harvey, 254 Wis.  2d 442, ¶47.