On Point

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding:

¶30      When considered together, this precedent establishes the following principles:

(1) The purpose of the allegations of repeater status in a charging document is to provide the defendant with sufficient notice of the potential maximum penalty he faces in order that the defendant may make an informed plea. Gerard, 189 Wis.  2d at 512 n.6.; Martin, 162 Wis. 2d at 900-01; Whitaker, 83 Wis.  2d at 373.(2) If there has been no repeater allegation made prior to the court’s acceptance of a plea, and the defendant does not re-plead after the charging document has been amended, sentence enhancement is not permissible upon conviction. Gerard, 189 Wis.  2d at 513-14; Martin, 162 Wis.  2d at 902-03; Campbell, 201 Wis.  2d at 791-92.

(3) With leave of court, and after a plea has been accepted, charging documents that were sufficient before the plea was accepted may be amended with regard to the initial allegations concerning a defendant’s repeater status so long as the defendant is not prejudiced by the amendment. ^[9] Stynes, 262 Wis. Gerard, 189 Wis. Campbell, 201 Wis.  2d at 793.

(4) When a post-plea amendment to allegations earlier made concerning a defendant’s repeater status does not compromise the sufficiency of notice of the potential maximum sentence a defendant faces, no prejudice occurs. Stynes, 262 Wis.  2d 335, ¶¶31-32; Gerard, 189 Wis.  2d at 516; Campbell, 201 Wis.  2d at 793; Wilks, 165 Wis.  2d at 110.

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 ^[9]  In order to give sufficient notice of the potential maximum penalty that a defendant faces due to allegations of habitual criminality, a complaint must specify the date or dates of conviction, the substantive crime or crimes of which the defendant was convicted, and whether each conviction was a felony or a misdemeanor. State v. Stynes, 2003 WI 65, ¶15, 262 Wis.  2d 335, 665 N.W.2d 115 (citing State v. Gerard, 189 Wis.  2d 505, 515-16, 525 N.W.2d 718 (1995).

State v. Brian Hibl, 2006 WI 52, reversing 2005 WI App 228
For Hibl: Joel H. Rosenthal

Issue: Whether an identification resulting from an “accidental” encounter between witness and defendant in a courthouse hallway immediately before trial is suppressible, in the absence of any evidence that this incident involved a law enforcement procedure directed at obtaining an identification.

Holding:

¶31      For the reasons stated below, we determine that Dubose does not directly control cases involving evidence derived from “accidental” confrontations resulting in “spontaneous” identifications. However, we further determine that in light of developments since the time of Marshall, including those recognized in Dubose,Marshall does not necessarily resolve all such cases. Although most such identifications will be for the jury to assess, the circuit court still has a limited gate-keeping function. It may exclude such evidence under § 904.03 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. …¶39      Courts have traditionally employed several factors to assess reliability, based on common sense notions of human perception and memory. Those factors are the ones recited in Wolverton that the circuit court applied here: the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.

¶40      More recently, other phenomena that may affect the reliability of eyewitness identifications have been widely proffered or recognized. These phenomena may not be within the common knowledge of many jurors or judges. They include the “relative judgment” process; ^[9] the stressfulness of the event for the eyewitness; ^[10] whether the event involved “weapon focus”; ^[11] the cross-racial nature of an identification; ^[12] and whether an eyewitness is given positive feedback during or immediately following the identification. ^[13]

¶41      Many of the phenomena said to affect the reliability of eyewitness identification are the subject of ongoing debate. ^[14] One thing not subject to debate is that evenunintentional suggestiveness can become a key factor in identification errors. See State of Wisconsin, Office of the Attorney General, Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005 ) at p. 2 (emphasis added). What is important for our examination here is that many of these phenomena do not depend on the presence of a law enforcement procedure. To the extent that identification evidence is extremely unreliable based on such phenomena, independent of any law enforcement procedure,Marshall‘s holding may need to be modified.

…

¶47      Based on the record before us, however, we are not prepared to declare that the admission of the identification evidence in this case would violate Hibl’s right to due process. The circumstances of Stuller’s identification of Hibl in the courthouse hallway are not sufficiently suggestive. Thus, we need not and do not modify Marshall at this time. …

¶50      Despite the right to a trial by jury, the law permits and sometimes requires that a trial court keep evidence from the jury. …

¶54      In exercising its gate-keeping function, the court should consider whether cross-examination or a jury instruction will fairly protect the defendant from the unreliability of the identification. The court may take a number of other factors into consideration, including those we have articulated in ¶¶38-40, if appropriate, but litigants and trial courts should not be bound to an inflexible list of factors. We urge circuit courts, with assistance from the litigants before them, to take into consideration the evolving body of law on eyewitness identification. Any tests for reliability and suggestiveness in the eyewitness identification context should accommodate this still-evolving jurisprudence, along with the developing scientific research that forms some of its underpinnings.

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 ^[9]   See State v. Shomberg, 2006 WI 9, ¶28, ¶49 (Abrahamson, C.J., dissenting), ___ Wis.  2d ___, 709 N.W.2d 370; State of Wisconsin, Office of the Attorney General,Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005) at p. 2 (footnotes omitted). The “relative judgment” process refers to “the tendency when viewing a simultaneous presentation (viewing an entire photo array or lineup at once) for eyewitnesses to identify the person who looks the most like the real perpetrator relative to the other people.” Model Policy and Procedure, at 2. ^[10]  See United States v. Sebetich, 776 F.2d 412, 419 (3d Cir. 1985); see also Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).

 ^[11]   Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).

 ^[12]   See State v. McMorris, 213 Wis.  2d 156, 170 n.9, 570 N.W.2d 384 (1997).

 ^[13]   Shomberg, 2006 WI 9, ¶71 (Butler, J., dissenting).

 ^[14]  There is also debate over the traditional factors from Biggers. At least one of those factors, eyewitness certainty in the identification, has come under serious attack. The Wisconsin Innocence Project, amicus in this case, provided a copy of an amicus brief recently submitted to the United States Supreme Court in Ledbetter v. Connecticut, No. 05-9500, on behalf of numerous university professors who hold themselves out as experts in the field. They assert that the certainty factor has no scientific basis. In support of this assertion, they engage in an extensive review of research suggesting that the relationship between eyewitness certainty and eyewitness accuracy is generally weak and easily subject to corruption. The State maintains, however, that research shows certainty remains a reliable predictor of accuracy.

The immediate holding can be efficiently stated as: where there’s no state involvement in a show-up identification, then the State v. Dubose, 2005 WI 126, ¶16, 285 Wis. 2d 143, 699 N.W.2d 582 necessity-of-procedure test simply isn’t triggered; the trial court does retain a limited gatekeeper function to screen the identification from the jury, with a heavy bias (¶31) toward letting the jury resolve the issue of ID reliability. Why, then, such a lengthy summary? Largely to reproduce the “phenomena that may affect the reliability of eyewitness identifications” listed by the court. These factors are probably not static—the court is clearly open to considering new developments in the field, which the practitioner therefore will have to track assiduously—but for the near term these will have to do.Although the trial court retains authority to exclude the identification under § 904.03, it’s not clear how Hibl could attain such a result. The court says that exclusion is appropriate if the evidence is so unreliable that the resulting danger of prejudice and confusion substantially outweighs probative value, ¶48. And yet, in the immediately preceding paragraphs (¶¶46-47) the court baldly declares that Hibl’s identification was not “highly unreliable.” Maybe you can have evidence that is not highly unreliable but still be so unreliable as to warrant exclusion. Maybe. But it would seem that this is a jury instruction case in all but name (this appeal is pre-trial, so instructions aren’t at issue) and in that sense the various factors listed by the court might assist in crafting a special instruction. Indeed, even in a DuBose case much thought will have to be given to the instruction on identification. Couple of recent examples: State v. Ledbetter, 275 Conn. 534; 881 A.2d 290 (2005) (court invokes supervisory authority to “direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure.” (Text of instruction in linked opinion file.); Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) (“In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as ‘the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,’ we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification”).

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶33      The Sixth Amendment and Due Process Clause right to present a defense requires that a defendant be allowed to introduce relevant evidence, subject to reasonable restrictions. …

¶34      The right to present a defense does not require that a defendant be allowed to present irrelevant evidence. …

¶35      In this case, before Campbell can collaterally attack the family court’s custody order for fraud, it must appear that Campbell’s collateral attack, if successful, would tend to negate an element of a crime or raise an affirmative defense. In other words, the evidence adduced by the collateral attack must be relevant.

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue/Holding: Excluding evidence that in other, unrelated instances a witness had lied to the police in an attempt to curry favor in his own criminal cases did violate Rockette’s right to present a defense, where this evidence was merely cumulative to other evidence that called the witness’s credibility into question, ¶¶31-37.

State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding:

¶9        In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a “trier of fact to determine the existence of an element of the crime–that is, an ‘ultimate’ or ‘elemental’ fact–from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” Ulster County Court v. Allen , 442 U.S. 140, 156 (1979). The presumption can be permissive, which “allows–but does not require–the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one,” id. at 157, or it can be mandatory, requiring that the trier of fact “ must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts,” id.

¶10      In general, a permissive presumption is constitutional as long as there is a rational connection between the basic fact and the elemental fact. Id. at 165. A mandatory presumption, however, whether conclusive or rebuttable, is not constitutional because it relieves the State of its burden to prove every element of an offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 521-24 (1979).

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

Issue: Whether a higher level of scrutiny applies to an equal protection challenge to a prison early release program which categorically withholds eligibility from certain types of crimes.

Holding:

¶13      The State, on the other hand, argues that we should employ the lower level of scrutiny, or the “rational basis” standard. Under this standard, we uphold a statute against an equal protection challenge “if a plausible policy reason exists for the classification and the classification is not arbitrary in relation to the legislative goal.” Id., ¶73 (citations omitted). A statute is unconstitutional if it “is shown to be ‘patently arbitrary’ with ‘no rational relationship to a legitimate government interest.’” ^[4] Id.

¶14      We agree with the State that the rational basis standard is the appropriate one. The supreme court and this court have consistently applied the rational basis standard when deciding equal protection challenges to statutes involving differences in criminal penalties. See State v. Jorgensen, 2003 WI 105, ¶¶28-41, 264 Wis. 2d 157, 667 N.W.2d 318 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Smart, 2002 WI App 240, ¶¶5-12, 257 Wis. 2d 713, 652 N.W.2d 429 (statute allowing each judicial district to establish sentencing guidelines for drunk driving); State v. Gardner, 230 Wis. 2d 32, 47, 601 N.W.2d 670 (Ct. App. 1999) (penalty structure for armed burglary versus unarmed burglary); State v. Block, 222 Wis. 2d 586, 590-95, 587 N.W.2d 914 (Ct. App. 1998) (classification of some crimes as “serious” for purposes of persistent repeater penalty).

…

¶17      In analyzing whether a statutory classification meets the rational basis standard, we “‘are obligated to locate, or, in the alternative, construct a rationale that might have influenced the legislative determination.’” Ferdon, 284 Wis. 2d 573, ¶74 (citations omitted). The point of our “inquiry [is to] determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose.” Id., ¶78. This standard “does not require the legislature to choose the best or wisest means to achieve its goals. Deference to the means chosen is due even if the court believes the same goal could be achieved in a more effective manner.” Id. at ¶76 (citations omitted). ^[5]

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 ^[5] In his argument, Lynch uses the five-part formulation of the rational basis test fromAicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶58, 237 Wis. 2d 99, 613 N.W.2d 849: (1) the classification must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it cannot be based only on existing circumstances (that is, it must not preclude addition to the numbers in the class); (4) it must apply equally to all members of the class; and (5) the characteristics of the class must be substantially different from other classes such as to suggest the propriety of substantially different legislation. However, as the State points out, Lynch does not discuss each of the five criteria in a clear and separate argument. In any event, in Ferdon, 284 Wis. 2d 573, ¶71 n.77, the court referred to the five-part test in a footnote as one of a number of different formulations of the rational basis test but did not employ it. BecauseFerdon is the most recent supreme court opinion discussing the standard to be employed when using the rational basis test, we use Ferdon’s formulation of that standard, not Aicher’s. However, even if we employed the five-part test, our conclusion would be the same and our analysis would be essentially the same.

The court doesn’t explain the significance of Ferndon being “the most recent supreme court opinion” on the point at hand, but it presumably embodies this principle: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court’s most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857, citing Krawczyk v. Bank of Sun Prairie, 203 Wis.2d 556, 567, 553 N.W.2d 299 (Ct. App. 1996), which in turn says, “When the pertinent supreme court precedents appear to lead to different results, we follow that court’s last pronouncement.” So, there first must be some conflict in the pronouncements and Lynch doesn’t explicitly find one before casually deciding that Aichercontrols over Ferndon. Perhaps the court meant to imply the existence of a conflict; perhaps the conflict was thought too obvious to bear elaboration. But it still ought to be said outright that mere chronology isn’t enough to deem one pronouncement controlling over another. Mention is made because this isn’t the first time the court of appeals has articulated the “rule” too broadly; see, e.g.,State v. Walter Leutenegger, 2004 WI App 127, ¶5: “More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, ¶30, 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918n.8, 537 N.W.2d 74 (Ct. App. 1995) (‘[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.’).” No coincidence, perhaps, that Leutenegger involved a virtually identical panel. You can see, then, how the court has loosened the “rule” so that it threatens to stray from its mooring. That said, it might be wondered why the properly-articulated rule ought to be followed in any event. Without making too fine a point of it, Jones cites State v. Olsen, 99 Wis.2d 572, 583, 299 N.W.2d 632 (Ct. App. 1980) in support of the rule, but that case says no such thing. Rather, Olsen merely recognizes the irrefutable idea that “the court of appeals is bound by prior decisions of the Wisconsin Supreme Court,” citing Livesey v. Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339 (Ct. App. 1979), which itself says no more than that. Support, then, must be found elsewhere. The earliest iteration seems to be this, from Bruns VW, Inc. v. DILHR, 110 Wis.2d 319, 324, 328 N.W.2d 886 (Ct. App. 1982): “If the decisions of the supreme court are inconsistent, we should follow that court’s practice of relying on its most recent pronouncement,” citing Purtell v. Tehan, 29 Wis.2d 631, 636, 139 N.W.2d 655 (1966). And that last case, interestingly, simply indicates: “Ordinarily, where there is a conflict in our past decisions, we prefer to adhere to the more recent cases.” Hardly a “rule,” then, is it? Ordinarily the court has a preference for the more recent pronouncement? Sounds more like a standard, which allows for exercise of discretion, than a rule, which allows for none. Just something to keep in mind if you find dueling pronouncements crossing swords over your desk.

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

Issue:  Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.

Holding:

¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis. Stat. ch. 940 to participate in the earned release program. While one purpose of the earned release program is undoubtedly to encourage inmates to participate in treatment for substance abuse, it is also significant that the result of successful participation is a reduction in the time a convicted person must serve in confinement. ^[6] In effect, participation in the program is an opportunity to have a lesser punishment than that originally imposed. Excluding persons who have committed more serious crimes from this opportunity for reduced confinement is rationally related to the legitimate purpose of punishing more serious crimes more severely. A classification that treats persons differently, for purposes of participation in this program, based on whether their conduct has caused death or great bodily harm, is rationally related to the legitimate purpose of punishing more severely those persons who commit more serious crimes. It is rational to treat conduct that causes death or great bodily harm differently from conduct that does not have that result and to punish the former more severely.

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 ^[6] Lynch does not contend that, if he cannot participate in the earned release program, he is denied all treatment for substance abuse.

Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21.