On Point

State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06
For Klubertanz: Martha K. Askins, SPD, Madison Appellate

Issue: Whether attack on a sentence as harsh and excessive is limited to factors present at the time of sentencing, or may instead be based on post-sentencing events such that as in this instance a claim that the defendant had been sexually assaulted in prison after sentencing might support a harsh-and-excessive sentence reduction.

Holding:

¶40      We conclude that the circuit court’s authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occurred after sentencing. Rather, in deciding whether a sentence is unduly harsh, the circuit court’s inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court’s authority to modify a sentence based on events that occurred after sentencing is defined by “new factor” jurisprudence.

¶41      In this case Klubertanz does not argue that the sexual assault that occurred in prison was a new factor as defined in Crochiere, 273 Wis. 2d 57, ¶14. See footnote 4. This implicit concession is appropriate because there is no basis in the record for arguing the sexual assault in prison was highly relevant to the circuit court’s sentencing decision or an event or development that frustrates the purpose of the sentence the court imposed. Klubertanz also does not argue that the circuit court erroneously exercised its discretion by imposing a sentence that was unduly harsh. Rather, his argument is that the sentence became unduly harsh later, when he was assaulted in prison. The circuit court correctly decided that it did not have the authority to modify the sentence because the sexual assault in prison made the sentence unduly harsh.

The court goes on to say that “when a defendant claims that the conditions of confinement have rendered a sentence unduly harsh, the remedy is not modification of the sentence, but, if the requisite standards are met, a change in the prison conditions,” ¶43. What the court doesn’t say, but ought to be kept in mind, is that a sentence within the maximum is presumptively style=”not harsh and excessive, State v. Michael A. Grindemann,  2002 WI App 106, ¶¶29-33; and, more problematically, that “(t)he test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical in Wisconsin,” ¶21, State v. Lonnie C. Davis, 2005 WI App 98. In other words, if you don’t have an 8^th amendment claim, don’t bother making a harsh-and-excessive argument. Why, then, even allow harsh and excessive claims? If the sentence falls inside the maximum it’s presumptively OK; and if outside the maximum, then it’s automatically commuted anyway, § 973.13, without regard to sentence modification. If the sentence can’t be described as unconstitutional within the 8^th amendment then it can’t be reduced on the theory it was harsh and excessive; but if it can be, then that only means it must be reduced as a violation of the cruel and unusual clause.

On other points of sentence review: Gallion is all but a dead letter – consider the view expressed by the very experienced Judge Dykman in concurrence, ¶¶45, 47: “Putting today’s decision and Grindemann together, it is apparent that in reality, there is nothing left of the concept recognized in State v. Tuttle, 21 Wis. 2d 147, 151, 124 N.W.2d 9 (1963), that appellate courts have the power to review sentences to determine whether the trial court erroneously exercised its discretion in sentencing. … The result is that we give trial courts nearly unlimited and practically unreviewable power to set sentences, but those sentences, once set, cannot be changed.  We believe in individualized justice, but stop with a judgment of conviction.” Indeed, Judge Dykman ought to have the final word, if at some length, because he puts it so well:

¶48      Our opinions offer the hope that we are reviewing sentencing decisions. While that is literally true, the majority’s opinion and Grindemann camouflage the reality that review of sentencing is now akin to hoping that Lucy will finally let Charlie Brown kick the football. There is something unsettling about courts offering the appearance of hope where hope does not exist.

¶49      A tangible result of these false hopes is that a considerable portion of this court’s resources is spent addressing appeals from motions for sentence modification. Precisely how much of our time is spent adjudicating these appeals is unclear. These cases also tax the resources of the public defender, the State and other appellate counsel—all for a sentencing review regime producing within a hair of the same results as one without any review of sentencing.

¶50      This court lacks the authority to restore meaningful review of sentencing or to scrap the pretense of meaningful review that currently exists and reverse Tuttle. However, either of these options would be preferable to the illusion of review that exists today. I do not know whether it would be better to eliminate review under the “unduly harsh or unconscionable” standard altogether or to give appellate courts real power to review sentencing decisions, but the choice is not mine to make. ^[11] I therefore conclude that under Grindemann, now expanded by the majority’s opinion, I must concur in the majority’s result.

State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order
For Taylor: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: TIS sentence of 18 years (12 in, 6 out) for child sexual assault, consecutive to 5 year indeterminate sentence for similar offense, was not harsh and excessive, notwithstanding PSI recommendation of 12 years (6 in, 6 out), nonviolent nature of act, and closeness of victim to age of consent:

¶35 Although we recognize the accuracy of many of Taylor’s assertions, we are not persuaded that in light of all the facts and circumstances of this case, the circuit court erroneously exercised its discretion under the formidable standard

.…

¶42 … In the court’s view, an extended period of incarceration was necessary to protect young girls from Taylor’s sexual behavior and his disregard for the rule of law.

¶43 We believe the court clearly considered the nature of the offense, the character of the defendant, and the protection of the public. Taylor recognizes the court’s legitimate concern about protecting the public, but he essentially contends the court relied too heavily on this factor and gave too little weight to the other primary factors and the specific considerations described above. We do not dispute the relative weight given by the trial court to its concerns about the safety of the public. As we have recognized, however, “[g]iving consideration to various relevant factors does involve a weighing and balancing operation, but the weight to be given a particular factor in a particular case is for the trial court, not this court, to determine.”Cunningham v. State, 76 Wis. 2d 277, 282, 251 N.W.2d 65 (1977); accord Schreiber, 251 Wis. 2d 690, ¶8. Furthermore, “a sentence can be imposed which considers all relevant factors but which is based primarily on the gravity of the crime or the need to protect society.” Cunningham, 76 Wis. 2d at 283.

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether the sentencing court’s reliance on a television interview of the defendant, which led the court to criticize the defendant as “self-serving” rather than remorseful, violated the due process right to be sentenced on accurate information.

Holding:

¶24      We address first Lynch’s argument that the court had an obligation to give him advance notice that it was going to consider the television interview at sentencing. ^[7] The case he relies on, Gardner v. Florida, 430 U.S. 349 (1977), does not support his position. There the Supreme Court concluded that the sentencing court violated the defendant’s right to due process when it decided to impose the death penalty based in part on a confidential portion of the presentence report that had not been disclosed to the defendant. Id. at 355-62. A defendant has the right to an opportunity to rebut information presented at sentencing. State v. Damaske, 212 Wis. 2d 169, 196, 567 N.W.2d 905 (Ct. App. 1997). Obviously, if sentencing information is kept from the defendant, he or she cannot exercise this right. See Gardner, 430 U.S. at 360-61.

¶25      The facts of Gardner are not analogous to those here. The defendant in Gardner had no way of knowing what was in the confidential portion and, thus, no way to challenge its accuracy. Id. at 353. In this case, the contents of the interview were not kept secret from Lynch. Since Lynch gave the interview, he knew its contents and when it occurred. …

Other challenges going to editing and timing of interview rejected on basis that Lynch’s postconviction motion didn’t sufficiently preserve issue of evidentiary hearing to bring out underlying facts, ¶¶26-27.

State v. Jeris M. Moore, 2006 WI App 162
For Moore : Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶8        The issue in this case is whether the trial court erred when it denied Moore ’s motion without an in camera review of the confidential juvenile records. We conclude that the trial court should have conducted an in camerareview to determine whether the contents of those records rendered the resulting sentence one that was based on inaccurate information. Because the trial court declined to review the confidential records, we reverse the postconviction order and remand the matter to the trial court with directions to conduct an in camera review. After the review has occurred, the trial court shall determine whether the records rendered the information relied on at sentencing inaccurate. If the trial court determines the confidential records did not render the sentencing information inaccurate, then the order denying Moore ’s postconviction motion shall be reinstated. If the trial court determines that the confidential records did result in reliance on inaccurate information at sentencing, then Moore ’s postconviction motion should be granted and resentencing should be ordered. ^[2]

---

 ^[2]   The trial court shall be guided by the new standard on this issue set forth in State v. Tiepelman, 2006 WI 66, ¶2, ___ Wis. 2d ___, ___ N.W.2d ___.

The sentencing court relied on prior juvenile contacts; Moore’s postconviction motion alleged that the PSI provided a biased, inaccurate account of the incidents and that juvenile court records would have presented a more rounded, exculpatory picture. The trial court, however, refused to allow Moore to present the confidential juvenile court records, and on remand must “conduct an in camera review of the confidential juvenile records to determine whether the records contain any information which renders the trial court’s reliance on the prior sexual assault incidents inaccurate,” ¶13. If this review shows that the sentencing information was inaccurate then a new sentencing hearing will be required, ¶14.

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding: Defense cross-examination of a principal State’s witness was impermissibly curtailed when the trial court abruptly ended inquiry into whether the witness had threatened to cause the defendant (her ex-husband) “trouble” following his remarriage, where:

• The witness testified only with the aid of a translator and had obvious difficulty answering questions (“a witness’s comprehension affects our analysis of whether a trial court can cut-off cross-examination prematurely. … his inquiry into that area was not yet closed.  Accordingly, the trial court’s invocation of, in essence, ‘asked-and-denied’ to move the trial along was not yet justified, given the critical nature of motive to Yang’s defense.”) ¶13.
• Although the inquiry would not have directly proved the defense theory, the desired inference was one “Yang was entitled to argue to the jury; not every fact in a trial is provable by direct-evidence. … Indeed, … are routinely told that circumstantial evidence can be as valuable to the jury as direct evidence[.]” ¶14.
• Yang asserted, in opening statement, the fact sought to be established by the inquiry and it is therefore assumed that there was a good-faith basis for the questioning; nor would the jury have been bound by the witness’s denial. “Thus, Yang was entitled to have the jury decide from his lawyer’s questions and the nature of his former wife’s responses whether she was telling the truth[.]” ¶15.

The error was prejudicial, ¶17: it was a close case, as exemplified by partial acquittal; motive to lie was, by the State’s own representation to the jury, crucial and the curtailed cross “would have been an appropriate tool for them to use in making that assessment.” All in all, a fact-specific case, though it does seem to be a ringing endorsement of the right to cross-examine, especially with regard to potential matters of bias or motive to lie.

State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau

Issue/Holding:

¶11      Inquiry into a witness’s bias is always material and relevant. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (bias and improper motive of witness are never collateral). John Henry Wigmore has characterized cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). Although, as Van Arsdall observes, this does not mean there can be no limits on a defendant’s cross-examination seeking to expose bias, the great engine only has power if the trial court does not apply too-restrictive a governor or, to use an old railroading term, shunt it to a “dead track.” We analyze Yang’s confrontation-denial contention against this background.

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (court assumes without deciding that statements were testimonial but holds that Rodriguez forfeited right to confrontation by intimidating witness from testifying), PFR denied 2/21/08
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether statements to the police, indisputably excited utterances, by both the alleged victim of an act of domestic violence and her daughter shortly after a 911 call; and by the same two the following day also to the police were “testimonial” and thereby violative of confrontation given that neither testified at trial nor had previously been cross-examined.

Holding:

¶16      Davis was a consolidated decision in two cases, Davis v. Washington and Hammon v. Indiana.  Davis, 126 S. Ct. at 2270, 2272. ……

¶18      … Resolving much of the ambiguity left by Crawford, Davis set out the following bright-line, but, perhaps, not conclusive rule:

Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present case to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 126 S. Ct. at 2273–2274. …¶19      … We now turn to our case, and analyze it under both Wisconsin case law and the United States Supreme Court’s latest word in Davis.

¶20      … Manuel set out the formulations as follows: …

(3) “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id., 2005 WI 75, ¶37 ….…

¶23      … Victims’ excited utterances to law-enforcement officers responding to either an on-going or recently completed crime, serve, as with the 911-call, a dual role—the dichotomy between finding out what is happening as opposed to recording what had happened, which, as we have seen, was recognized in Davis.…

…

¶26      A similar analysis applies when police talk to an attack-victim when the stress and cognitive disruption caused by the attack is still dominant, because the key consideration in connection with both the third Crawford/ Manuel formulation and Davis’s rubric, focuses on an objective analysis of the out-of-court declarant’s expectation as to how what he or she tells law enforcement will be used. …

¶27      There is nothing in the Record here that indicates that what Rodriguez does not dispute were “excited utterances” by Ms. LaMoore and Casey when the officers first spoke with them were motivated by anything other than their desire to get help and secure safety. Moreover, given their contemporaneously endured trauma it cannot be said that objectively they said what they said to the officers with a conscious expectation that their words would somehow have the potential for use in court against Rodriguez. It also cannot be said that, objectively, the officers intended to record past activities rather than assess the then-current situation.

Viability of court’s analysis subject to doubt in light of subsequently decided State v. Jensen, see above.)Lengthy excerpt above necessitated by novelty of the issue—Wisconsin’s first precedential bout with Davis/Hammon—and also the implications—without saying so the court in effect carves out a domestic violence/excited utterance exception to confrontation. (On the bright side: if this case holds up there won’t be much need to grapple with the forfeiture doctrine, the next great uncharted confrontation territory.) Much can and will be said about this case, but not here except that it falls just between Hammon (accusation against husband made by wife in their home while officer was “securing and assessing the scene” testimonial; husband under control of one officer while officer took wife’s statement) and Davis (statement made during 911 call; accused still at large)—that’s because LaMoore made both her statements in or immediately outside her home, like Ms. Hammon; but, each time Rodriguez was not within police control, like Davis. Still, this case seems an awful lot closer to Hammon than Davis. For now, it’s enough to recite this reaction to Davis/Hammon by Richard Friedman:

There is more good news as well. The Court is explicit that it found Hammon a “much easier” case than Davis. It makes clear that if the statement concerns a closed event—“what happened” rather than “what is happening”—then it should usually be considered testimonial. The pattern of the Court’s decisions after Davis on pending certiorari petitions suggests that the Court indeed recognizes that most accusatory statements made to police officers in the field should be considered testimonial. And further confirmation is provided by the Court’s apparent endorsement of the pre-Framing English case R. v. Brasier, which characterized as testimonial an accusation of attempted rape made by a young child to her mother immediately after coming home; neither the immediacy of the statement, the youth of the declarant, nor the private status of the audience removes the statement from the protections of the confrontation right, and that is as it should be.

One other point, perhaps. The majority relies on the pre-Davis cases of State v. Jeffrey Lorenzo Searcy, 2006 WI App 8 and State v. Donavin Hemphill, 2005 WI App 248, both of which deemed volunteered statements by non-victims to the police to be nontestimonial. Indeed, without quite saying so, the majority all but adopts wholesale an excited-utterance exception to confrontation. The dissent would distinguish those cases on the basis that, in contrast to victims, “(c)itizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify,” ¶46. A fair point, certainly; but if Friedman is right, the fault-line runs along what the declarant describes, not his or her state of excitation.See also State v. Mechling, 633 S.E.2d 311 (W.Va. 2006) (confrontation violated where statements of DV complainant to deputies, made after Mechling had left scene, allowed into evidence; court reserves judgment as to whether her statement to a private party related “what is happening” as opposed to “what happened):

… (A) witness’s statement taken by a law enforcement officer in the course of an interrogation is testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the witness’s statement is to establish or prove past events potentially relevant to later criminal prosecution. A witness’s statement taken by a law enforcement officer in the course of an interrogation is non-testimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police assistance to meet an ongoing emergency…….

There was no emergency in progress when the deputies arrived, and the defendant had clearly departed the scene when the interrogation occurred. When the deputies questioned Ms. Thorn, they were seeking to determine “what happened” rather than “what is happening.”

See also State v. Alvarez, 143 P.3d 668 (Az App 2006), supp. op. (responses of semi-conscious, and soon-dead, victim not testimonial, court citing Rodriguez with approval; disputing idea that “what happened” questions necessarily testimonial — but in that instance victim found staggering on highway, and thus presented an “ongoing emergency”); State v. Graves, 157 P.3d 295O (Ore. App 2007) (similar facts to Rodriguez, police response to 911 call on DV emergency, but not entirely compatible result: first statement, made immediately on police arrival at home, nontestimonial because there was potential emergency; subsequent statements at scene testimonial because police had confirmed defendant no longer in house and thus was no imminent threat); State v. Ohlson, 168 P.3d 1273 (Wn. 2007) (“the critical consideration is not whether the perpetrator is or is not at the scene, but rather whether the perpetrator poses a threat of harm, thereby contributing to an on-going emergency”); State v. Camarena, 176 P.3d 380 (Ore. 2008) (911 call reporting that assailant had only left a minute ago non-testimonial, because “the scant 60 seconds … is insufficient to suggest that the danger of a renewed assault had fully abated”; however, certain “responses were unnecessary to resolve an ongoing emergency” and were therefore testimonial).