On Point

State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding¹ [general principles]: The two-part analysis of Ohio v. Roberts, 448 U.S. 56 (1980) survives Crawford for use in determining Confrontation Clause admissibility of nontestimonial statements, ¶¶54-61 (unavailable declarant, and adequate indicia of reliability).

Issue/Holding² [applied to facts]: The hearsay in question – a statement of recent perception – is not firmly rooted, and therefore must have particularized guarantees of trustworthiness to be admissible, ¶67. That showing is satisfied, where the statement was made spontaneously, in private to the declarant’s girlfriend and thus in confidence, and without ulterior motive to fabricate, ¶¶69-70.

To same effect, re excited utterance: State v. Roberto Vargas Rodriguez, 2006 WI App 163, ¶28, PFR filed 8/28/06; subsequent history: affirmed, 2007 WI App 252 (confrontation right forfeited), PFR filed 11/1/07.But: Davis seems to have sounded the end of Roberts analysis as a matter of federal constitutional law, despite this holding, at least according to James J. Duane in a commentary in the Fall ’06 Criminal Justice; and according to Lisa Kern Griffin in the Michigan Law Review (“The Court buried the lede, but Davis does pronounce Roberts dead.”); and, for that matter, Richard Friedman (“The Court also manages to close one can of worms, going well out of its way to make clear (though some lower courts have not recognized this so far) that if a statement is not testimonial it is not covered by the Confrontation Clause.”) But, just how much advantage does (did?) a Roberts analysis give? None at all, bluntly says Friedman: “Numerous post-Crawford courts, having determined the statements at issue were not testimonial, have gone through the Roberts analysis and—not surprisingly—determined that the statements were admissible. … No terrible harm is done, perhaps, but the process is wasteful, because courts will continue to run through it with predictable results.”

Note holding in State v. Cook, 135 P.3d 260 (Ore. 2006), that Roberts survives as matter of state constitution confrontation analysis.

State v. Glenn H. Hale, 2005 WI 7, affirming, as modified, 2003 WI App 238
For Hale: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: Under Crawford v. Washington, 124 S. Ct. 1354 (2004), prior testimony at a codefendant’s separate trial is inadmissible at Hale’s trial, given that the previously testifying witness cannot be located. ¶¶53-58.

Crawford says that testimonial hearsay violates confrontation absent prior opportunity to cross-examine. A witness’s prior testimony is, well, “testimonial,” ¶53. The real question is whether the codefendant’s opportunity to cross-examine had any bearing on Hale’s right of confrontation; the court – efficiently characterizing the issue as one of “confrontation by proxy” – says it didn’t, that the defendant must have had the prior opportunity to cross-examine the witness, ¶56. He didn’t, so Crawford was violated. Simple as that.

Simple or not, there are implications. The court doesn’t say so explicitly, but the only fair reading is that State v. Robert Bintz, 2002 WI App 204, ¶¶18-20, 257 Wis. 2d 177, 650 N.W.2d 913 (prior testimony from codefendant’s separate trial admissible against defendant) is now overruled. (Bintz was eventually upheld in federal court on habeas review, but under pre-Crawford analysis, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005).)

There are 4 (!) separate concurrences involving 6 justices. They all agree that Crawford was violated, so that helps. But Justice Prosser’s 3-vote concurrence (¶¶91-99) makes the point that a defendant may forfeit the right of confrontation by wrongdoing: kill a witness and you won’t be heard to complain about that witness’s “unavailability.” The point seems unassailable and yet … it doesn’t really have anything to do with the case at hand, does it? Indeed, as leading expert Richard Friedman puts it, “(f)orfeiture often raises difficult issues.” Why not have caselaw discussion wait, though, for a live case actually raising them?

And Justice Butler writes separately to say that the challenged evidence violated hearsay as well as confrontation, ¶¶101-07. Indeed, the majority recognized that resolution of an appeal on nonconstitutional grounds is generally preferred, but in this instance it’s best to invert the priorities and get Crawford out of the way, ¶42. In fact, the very point of Crawford is to replace unpredictable, case-by-case “trustworthiness” analysis with an easily administered rule. Pace Justice Butler, inverted constitutional analysis is probably the preferable modality in Crawford cases. Note, for example, the Justice’s stress on the particular facts, indicating that Jones and Hale had antagonistic defenses, and their their interests didn’t coincide, ¶¶103-05. That might very well have been true, but it is precisely the sort of case-specific (and thus labor-intensive) inquiry Crawford seeks to avoid. Moreover, the fact that codefendants Jones and Hale’s interests clashed doesn’t mean that they necessarily diverged on the matter of attacking Sullivan. Maybe, maybe not: it’s not a self-evident proposition; the matter simply isn’t explored in sufficient detail to conclude one way or the other.

This isn’t to say, by any means, that the hearsay rule now should be ignored; just the contrary. But if the evidence can be efficiently analyzed and deemed inadmissible under Crawford, then there’s no need for the heavy lifting of a fact-intensive hearsay analysis. Regardless, it ought to be kept in mind that the relationship between hearsay and confrontation is now irrevocably splintered. As Richard Friedman usefully observes: “The rule against hearsay and the Confrontation Clause are separate sources of law—and Crawford stops the tendency to meld them. The question for Confrontation Clause purposes in each case is whether the given statement is testimonial. The fact that a statement fits within a hearsay exception does not alter its status with respect to that question. But one can say that most statements that fit within certain hearsay exceptions are not testimonial.” (All the more reason to take up confrontation first.)

For whatever it’s worth, pre-Crawford cases tended to find “that testimony given at a codefendant’s trial was sufficiently reliable to satisfy Roberts if the witness had been cross-examined by the codefendant’s counsel,” Dorchy v. Jones, 398 F.3d 783 (6th Cir 2005). No longer.

What about where the prior testimony occurred at the defendant’s own prior trial? The witness, of course, must still be found unavailable, and for a case where the state’s effort to locate the witness for the retrial were deemed inadequate, though oddly without even mentioning Crawford, see People v. Avila, 31 Cal Rptr 3d (Cal App 2005) (“Waiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial.”).

And: the long-standing problem of preliminary hearing testimony will continue to vex the defense bar, even (especially?) under Crawford analysis. See e.g. summaries of Stuart and Norman, immediately below; and see, George Owens v. Frank, 394 F3d 490 (7th Cir. 2005) (such testimony admissible under Ohio v. Roberts, because Owens had adequate opportunity for cross-examination, “limited scope” of preliminary hearing notwithstanding; court not reaching retroactivity of Crawford). The “testimonial” nature of this evidence will not be in doubt. Nor, one imagines, will there ever be much if any dispute over whether the preliminary hearing witness is indeed “available” at trial. The question will be whether Crawford’s requirement for “opportunity” to cross-examine is somehow more stringent than Roberts’ was.

In a series of recent cases, the supreme court has joined what it terms “the ‘new federalism’ movement,” State v. Knapp (II), 2005 WI 127, ¶84 and id., n. 20 (Crooks, J., conc. w/ majority support of 4 votes), which refers to a tendency to look first to the state constitution and assign greater rights than the Supreme Court to parallel provisions in the federal constitution. Those cases are listed here:

• State v. Knapp (II), 2005 WI 127 (differential self-incrimination clause construction: physical evidence derived from intentional Miranda violation subject to suppression rule)
• State v. Tyrone L. Dubose, 2005 WI 126 (differential due process clause construction: show-up IDs)
• compare, State v. Jerrell C.J., 2005 WI 105 (superintending power invoked re: custodial juvenile confessions).

What of fourth amendment suppression issues, something not explicitly at issue in this initial flurry of cases? Over the years, the Wisconsin supreme court has consistently rejected assigning greater protection to Wis. Const. Article I, Section 11 than the USSC assigns the 4th amendment. And yet, Knapp II takes pains to stress a little-recognized feature of State v. Eason, 2001 WI 98, 47, 245 Wis. 2d 206, 629 N.W.2d 625, namely that “this court departed from the Supreme Court’s holding in United States v. Leon, 468 U.S. 897, 919-20 (1984),” by holding “‘that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment.’ Id.” ¶73 n. 14. That would be enough to place Art. I, § 11 in the “New Federalism” sights. But there is certainly more to it than that. Knapp II undertakes an historical review of the suppression rule in Wisconsin, noting its origin with Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). ¶¶64, et seq. Although that discussion relates largely to self-incrimination, stressing that Hoyer is no longer viable to the extent that it embedded self-incrimination principles in the search-and-seizure clause, the court nonetheless issues what can only be seen as a ringing endorsement of the larger principle, Hoyer‘s commitment to enforcement of the exclusionary rule. It is wise to keep in mind that the exclusionary rule has two distinct rationales: deterrence of governmental misconduct and, separately, judicial integrity. The Supreme Court over the years has essentially limited the rule to the deterrence function, whose ruthless application has led to the rule’s slow erosion. But “New Federalism” in general and Hoyer in particular put judicial integrity back into the suppression calculus. Some of this is inferential. Thus, Eason points out (¶41), “Hoyer relied solely upon federal law. See 180 Wis.2d at 412-18. Hoyer relied upon Amos, 255 U.S. at 316, and Gouled, 255 U.S. at 303, which, in turn, relied upon Weeks v. United States, 232 U.S. 383 (1914), the Supreme Court’s seminal formulation of the exclusionary rule[.]” This exclusive reliance was subsequently invoked to hitch Wisconsin Constitution construction to the Supreme Court star. But New Federalism offers the opportunity to consider the actual rationale originally at play, judicial integrity. And with that in mind, here is the crucial passage in the seminal case, Weeks, 232 U.S. at 391-92:

The effect of the 4th Amendment is to put the courts [232 U.S. 383, 392] of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

(See also Robert Bloom, “Judicial Integrity: A Call for its Re-Eemergence in the Adjudication of Criminal Cases” (“The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.”).) That encomium to judicial integrity was echoed in Hoyer‘s invocation, 180 Wis. at 417, of the Wisconsin Constitution’s “pledge of the faith of the state government” that citizens will be free from unreasonable searches and seizures.

Of course, New Federalism also makes other state’s approaches relevant, now that construction of the state constitution has been decoupled from the federal constitution. The Oregon supreme court, for example,

explicitly has rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale. Davis, 295 Or at 233-37. Instead, this court has held that the Oregon exclusionary rule is a constitutionally mandated rule that serves to vindicate a defendant’s personal rights. In other words, the right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision. (14) See State v. Davis, 313 Or 246, 249, 834 P2d 1008 (1992) (so stating). In that vein, this court has explained that the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if “the government’s officers had stayed within the law.” Davis, 295 Or at 234. Thus, in deciding the applicability of the Oregon exclusionary rule, the critical inquiry is whether the state obtained the evidence sought to be suppressed as a result of a violation of the defendant’s rights under Article I, section 9. See, e.g., State v. Smith, 327 Or 366, 379-80, 963 P2d 642 (1998) (holding evidence obtained following unlawful police conduct nevertheless admissible, because evidence not obtained by virtue of that unlawful conduct).

---

^14. Before the Supreme Court held in Mapp, 367 US 643, that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 US 383, 34 S Ct 341, 59 L Ed 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures. See State v. Laundy, 103 Or 443, 494, 204 P 958, 206 P 290 (1922) (stating that Oregon state courts should apply exclusionary rule for same reasons that Supreme Court articulated in Weeks); see also Davis, 295 Or at 233-34 (noting same history of Oregon exclusionary rule). Although cases subsequent to Laundy sometimes suggested that the Oregon exclusionary rule might apply to deter future constitutional violations, in a sequence of cases beginning with Davis, 295 Or 227, this court reaffirmed its view that, although deterrence may be a benefit of the Oregon exclusionary rule, the constitutional basis for that rule is to vindicate the defendant’s personal rights. See, e.g., State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (personal rights); State v. Tanner, 304 Or 312, 315, 745 P2d 757 (1987) (same); compare with State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (stating exclusionary rule under Article I, section 9, should be applied only as broadly as necessary to accomplish its “prophylactic” purposes).

State v. Hall, 339 Or 7, 115 P3d 908 (2005). (Hall followed, State v. Thompkin, OR SCt No. S51405, 9/14/06.)

For tripartite categorization of state-constitution analysis, see People v. Caballes, IL SCt No. 91547, 5/18/06: “lockstep” (mechanically follow US SCt rulings); “interstitial” (federal decisions are starting point, but state result may diverge, if sufficient reason); “primacy” (independent state constitutional analysis, federal decisions used only for guidance).

With explicit recognition of the New Federalism movement, then, Wisconsin litigation of 4th amendment suppression issues should no longer be limited to the deterrence function, and caselaw such as Oregon’s may be marshaled in support of argument that might otherwise have been overlooked even by the diligent practitioner. If you plan to raise a state constitutional argument, it would be wise to do more than evince disagreement with the federal approach. See, e.g., State v. Kottman, 2005 SD 116, ¶13 (waiver of state constitutional argument: “Counsel advocating a separate constitutional interpretation “must demonstrate that the text, history, or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision.” … No such analysis was presented here.”).

Interesting critique of this initial spate of New Federalism cases by 7th Circuit Judge (and former Wis. Supreme Court Justice) Sykes, here. Though her critique is largely philosophical, and thus of little immediate practical use to the practitioner her larger point — that these opinions are grounded more in recent social science studies than historical research — ought to be absorbed. If these cases do represent a trend, then the court is indeed sensitive to such input, and the practitioner will have to stay current with relevant studies. On the other hand, it wouldn’t hurt to attain familiarity with the drafting history of our state constitutional provisions.

State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: (Concurrence of Chief Justice, but one that marshals majority of votes, hence represents holding:)

¶66      The powers of the Wisconsin Supreme Court are defined in several ways and have diverse origins.  Some are explicitly set forth in Article VII, Section 3 of the Wisconsin Constitution: appellate and original jurisdiction and superintending and administrative authority.  Others are derived from the state constitutional separation of powers doctrine, as well as from the court’s very existence, especially this court’s being the highest court in the state, the court of last resort.  Indeed, “it is well established that this court has express, inherent, implied and incidental powers” ^[25] to manage the sound operation of the judicial system in our tripartite form of government.  …¶69      When all is said and done, Arneson v. Jezwinski, 206 Wis. 2d 217, 225-26, 556 N.W.2d 721 (1996), quoted with approval in State ex rel. Hass v. Wisconsin Court of Appeals, 2001 WI 128, 248 Wis. 2d 634, 640, 636 N.W.2d 707 (2001), summarizes the case law interpreting our superintending authority and sets forth the present and long-standing view that the court’s superintending authority is a broad power to be exercised for controlling the course of litigation and is shaped by the continuing necessity that this court carry out its function as a supreme court. …

…

¶92      The judiciary article of the Wisconsin Constitution was amended in 1977. The supreme court’s superintending authority was placed in a one-sentence subsection separated from the other subsections granting appellate and original jurisdiction and separated from any reference to writs. Article VII, Section 3(1) of the 1977 amendment reads simply as follows regarding the court’s superintending powers: “The supreme court shall have superintending and administrative authority over all courts.”¶93      Thus, in 1977, presumably aware of the historical case law interpreting the 1848 constitution and the court’s exercise of superintending power to adopt and enforce the Code of Judicial Ethics, the legislature and the people of the state decoupled the court’s superintending authority over all state courts from the writs specified in the 1848 constitution and thereby gave their imprimatur to the court’s historical interpretation of the 1848 language attributing to the court broad constitutional superintending power to control litigation. Thus, the 1977 constitutional amendment implemented Justice Adam Smith’s broad explication of the court’s superintending power set forth in the Blossom case and in Chief Justice Wilkie’s opinion in Kading.

State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: Venue, § 971.19(1), requires trial in the county where the crime was committed; bindover proof of venue in a first-degree intentional homicide was sufficient (taking the inferences in favor of bindover) to show that defendant killed the victim in the county where the prosecution was lodged, where: the victim left work scheduled to take a trip to a cabin but never made it and was found dead over 1500 miles away; defendant was the last person to see the vicitm alive shortly before he disappeared, at the family home in the county of prosecution; a large number of unexplained miles were run up on the vehicle used by defendant; the victim was in a good mood until receiving a phone call at work from the defendant but then became visibly distressed and told a co-worker,”We may have to go to a funeral”; and, the victim had earler told a co-worker that the defendant had threatened him and attacked him one night after work, ¶¶ 53-77.

State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
For Moeck: David D. Cook

Issue/Holding¹:

¶37 A mistrial is warranted if the mistrial is “manifestly necessary.” The State bears the burden to demonstrate that a “‘manifest necessity’ [exists] for any mistrial ordered over the objection of the defendant.” A “manifest necessity” warranting a mistrial is a high degree of necessity. The determination whether a manifest necessity exists is a fact-intensive question. If the State does not meet this burden, the State is not permitted to commence another trial against the accused.

Issue²: Whether mistrial granted over defense objection on the ground that the defense never presented evidence to support a theory advanced in the opening statement (namely that the defendant would testify that the purported victim was a liar and thief, but the defense rested without presenting any evidence) was supported by manifest necessity.

Holding:

¶68 We agree with the State that a circuit court may, in an appropriate case, declare a mistrial on the basis of an opening statement that summarizes evidence that is not produced. We disagree with the State, however, that the circuit court exercised sound discretion in granting the mistrial in the defendant’s third trial.…

¶71 We conclude that the circuit court did not exercise sound discretion in declaring a mistrial when it failed to give adequate consideration to the State’s ability to refer to the defendant’s silence and to the effectiveness of a curative jury instruction. Although the circuit court expressed its belief that the State’s response and a curative jury instruction could not rectify any prejudice caused by defense counsel’s opening statement, this belief is unfounded.

¶72 … Sound discretion includes considering alternatives such as a curative jury instruction.

¶73 The circuit court erred as a matter of law in its assessment of the State’s inability in closing argument to rebut the defense counsel’s opening statement. The circuit court overstated the difficulty the prosecuting attorney would have in both commenting on the weakness of the opening statement and avoiding error by referring to the defendant’s failure to testify.

This result should be contrasted with State v. Clyde Baily Williams, 2004 WI App 56, which denied relief on similar facts (improper defense question required mistrial). Hard, not to say impossible, to believe that a curative instruction would have worked its magic in one context but not the other. Interestingly, the supreme court in Moeck did not accept the court of appeals’ rationale for error, that the trial court improerly delegated to the prosecution the decision as to remedy, see 2004 WI App 47, ¶23. Had that rationale remained in place, future courts might have been able to say that in Moeckbut not Williams the trial court improperly delegated the mistrial decision to the prosecutor. While such a distinction seems pretty flimsy (either an instruction would have cured the harm or it wouldn’t have; if the latter, then there could have been no manifest necessity for mistrial), it is no longer available even in theory. To the extent that the Williams trial court didn’t consider the remedy of curative instruction (and there is no indication in the decison of such consideration) then Williamscan’t be reconclied with Moeck.See also U.S. v. Toribio-Lugo, 1st Cir. No. 01-2565, 7/21/04: “Where there is a viable alternative to a mistrial and the district court fails adequately to explore it, a finding of manifest necessity cannot stand.” (Holding that failure to offer defendant option of proceeding with 11-person jury after a juror went missing precluded manifest-necessity support for resultant mistrial.)

State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne

Issue/Holding:

¶13      The Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution prevent the state from trying a defendant multiple times for the same offense. ^[4] “[G]iven the importance of the constitutional protection against double jeopardy, the State bears the burden of demonstrating a ‘manifest necessity’ for any trial ordered over the objection of the defendant.” Seefeldt, 261 Wis. 2d 383, ¶19 (citations omitted).  “Manifest necessity” means a “high degree” of necessity. Id.

The trial court’s error was in deeming certain testimony to be in the nature of an “alibi” and thus in violation of the notice-of-alibi requirement; because the testimony was not, as a matter of law, alibi-related, no such violation occurred and the mistrial wasn’t manifestly necessary, ¶¶21-25.