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    In the Matter of Disciplinary Proceedings Against David L. Ham, Attorney at Law: Office of Lawyer Regulation, Complainant, v. David L. Ham, Respondent.
    Supreme Court

      No. 2005AP2187-D.

      Decided April 5, 2006.

    2006 WI 30
    (Also reported in 711 N.W.2d 649.)
   PER CURIAM.

¶ 1. We review the report and recommendation of referee Norman C. Anderson that Attorney David L. Ham's license to practice law in Wisconsin be revoked, that he be ordered to provide an accounting and pay restitution to certain clients, and that he he ordered to pay the costs of this proceeding following Attorney Ham's default in response to the complaint filed by the Office of Lawyer Regulation (OLR).

¶ 2. After our review of the matter, we adopt the referee's findings of fact and conclusions of law and revoke the license of Attorney Ham to practice law in this state. We also order Attorney Ham to pay restitution to four clients, to provide an accounting and return all unearned retainer fees to two other clients, and to pay the costs of this proceeding.

¶ 3. Attorney Ham was admitted to practice law in Wisconsin in 1994. His license has been suspended on three prior occasions for failure to cooperate with the OLR's grievance investigations, most recently on January 11, 2005. His temporary suspension remains in effect.

¶ 4. The present proceeding arises out of a complaint filed by the OLR on August 29, 2005, and served on Attorney Ham on September 7, 2005. Attorney Ham did not respond to the original complaint. On October 11, 2005, the OLR filed a 79-page amended complaint containing 53 separate counts of alleged wrongdoing. The amended complaint was personally served on Attorney Ham on October 17, 2005.

¶ 5. Referee Norman Anderson set a scheduling conference for November 10, 2005, but Attorney Ham failed to appear. On that same date, because Attorney Ham had not responded to the original complaint or the amended complaint, the OLR filed a motion for default judgment against him. Attorney Ham still did not respond.

¶ 6. By written order filed December 12, 2005, Referee Anderson granted the OLR's motion for default judgment. The referee also filed his report and recommendation. He adopted the allegations of the amended complaint as his factual findings and concluded, based on those findings, that Attorney Ham had committed professional misconduct as alleged in each of the 53 counts of the amended complaint. Given the serious nature of Attorney Ham's violations and the pattern of repeated violations, the referee recommended that Attorney Ham's license to practice law in this state be revoked in order to protect the public. He also recommended that Attorney Ham be ordered to pay restitution to four clients, to provide an accounting and return unearned fees to two other clients, and to pay the costs of this proceeding.

¶ 7. Attorney Ham did not appeal from the referee's report and recommendation. Consequently, the matter is submitted to this court for its consideration pursuant to SCR 22.17(2). In our review, the referee's findings of fact are to be affirmed unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). The referee's conclusions of law, however, are subject to de novo review. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718.

¶ 8. The OLR's amended complaint, the factual allegations of which were accepted as true by the referee due to Attorney Ham's default, details misconduct relating to 16 different clients. The relevant facts and the legal conclusions they support will be summarized as briefly as possible below.

¶ 9. Client G.S. retained Attorney Ham in a criminal case to file a post-conviction motion for relief and an appeal. G.S.'s mother mailed checks in the total amount of $8000 to cover the attorney fees through appeal. When G.S. had not heard from Attorney Ham in quite some time, he left multiple messages for Attorney Ham to the effect that if Attorney Ham was unable to complete the tasks, he would like a refund of his retainer. After failing to respond to G.S.'s messages, Attorney Ham finally informed G.S. that he had completed the post-conviction motion and would be filing it immediately. This was false, as Attorney Ham had not yet drafted the motion. After G.S. became concerned when he still received no copy of the motion and subsequently learned from the clerk of court that no motion had ever been filed, he again tried to reach Attorney Ham to obtain an explanation. Attorney Ham failed to return the calls promptly. When he finally did speak to G.S., Attorney Ham told him that a temporary worker must have made an error in sending out the motion. This was also a false statement. G.S. ultimately sent a letter to Attorney Ham terminating his services, requesting his case file, and seeking a refund. It took Attorney Ham almost two months to complete the process of returning G.S.'s file and refunding the retainer.

¶ 10. When the OLR attempted to contact Attorney Ham about G.S.'s grievance, he initially asked for additional time to file his response, but then never submitted any response. The OLR was forced to seek an order temporarily suspending Attorney Ham's license for failure to cooperate, which this court granted on March 11, 2004. After Attorney Ham finally submitted a written response, the OLR moved for a lifting of the temporary suspension, which this court granted on April 7, 2004. When the OLR requested additional information from Attorney Ham, however, he again failed to respond.

¶ 11. With respect to G.S., the referee concluded that Attorney Ham had violated SCR 20:1.4(a) by failing to keep a client reasonably informed about the status of a matter and to comply promptly with a client's reasonable requests for information. The referee also concluded that Attorney Ham's statements about having completed the motion and about his temporary employee having erred in filing the motion were false, constituting conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). Finally, the referee concluded that Attorney Ham's failure to provide a written response to the grievance until after his license had been temporarily suspended and his failure thereafter to respond to the OLR's request for additional information constituted violations of SCR 22.03(2), SCR 22.03(6), and SCR 21.15(4), which are supreme court rules regulating the conduct of lawyers, thereby also violating SCR 20:8.4(f).

¶ 12. Count 4 of the complaint involves a grievance filed by client B.H., who alleged that Attorney Ham had failed to obtain an affidavit that the police had used as the basis for obtaining a search warrant, which had led to charges being filed against B.H. In July and August 2004 the OLR attempted to contact Attorney Ham about B.H.'s grievance, but Attorney Ham failed to respond, even failing to claim the OLR's certified letter. On September 1, 2004, the OLR personally served Attorney Ham with a letter requiring a response within seven days. Attorney Ham again failed to respond. Only after the OLR sent yet another letter, this time threatening a motion for temporary license suspension, did Attorney Ham provide a written response on September 30, 2004. Based on these facts, the referee concluded that Attorney Ham had willfully failed to provide relevant information and documents to the OLR in a grievance investigation in violation of SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 13. In mid-August 2003 Attorney Ham was contacted about representing an incarcerated person, M.H., concerning a motion to obtain 160 days of sentence credit, which would have resulted in M.H.'s release date being moved up to September 30, 2003. During an initial telephone conversation, Attorney Ham acknowledged the urgency of the situation and stated that he would either seek a stipulation or file a motion for the sentence credit as soon as he received a $1000 retainer. A friend of M.H. mailed a $1000 check to Attorney Ham on August 29, 2003, and M.H. mailed a signed retainer agreement on September 8, 2003. When Attorney Ham failed to respond to multiple messages left by M.H. and his friend, M.H. terminated the representation on September 14, 2003, and requested the return of the retainer less any costs or expenses. Attorney Ham has admitted that he did not earn the entire retainer fee, but he has not returned the money to M.H. or his friend.

¶ 14. Attorney Ham again failed to respond to the OLR's inquiries regarding M.H.'s grievance. After three months of sending and personally serving multiple letters requesting a reply, with no response, the OLR moved for a temporary suspension of Attorney Ham's license to practice law, which this court granted on September 16, 2004. Attorney Ham finally filed a response on October 13, 2004. The OLR then moved for reinstatement of Attorney Ham's license, which this court granted on November 17, 2004.

¶ 15. The referee found that Attorney Ham's failure to refund the unearned retainer fee to M.H. and to return M.H.'s client file to him as requested constituted a violation of SCR 20:1.16(d), which requires an attorney, upon termination of a representation, to take steps to the extent reasonably practical to protect the client's interests. The referee also found that Attorney Ham had willfully failed to cooperate with the OLR's grievance investigation in violation of SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 16. Counts 7-9 relate to Attorney Ham's representation of R.L. concerning charges of operating a motor vehicle while intoxicated (OWI) and of operating with a prohibited alcohol concentration (OWPAC). After receiving a $750 retainer and entering not guilty pleas on R.L.'s behalf on January 29, 2004, Attorney Ham stopped all communications with R.L. On March 1, 2004, R.L. moved to Arizona. Because Attorney Ham's license was temporarily suspended at the time, he did not appear at the March 26, 2004, scheduling conference. At that conference, the prosecutor offered a plea agreement, pursuant to which R.L. would plead guilty to the OWI charge, pay a $175 forfeiture, and have his Wisconsin driver's license suspended for six months.

¶ 17. In May 2004 R.L. filed a grievance with the OLR, complaining that Attorney Ham was not communicating with him. The OLR attempted to persuade Attorney Ham to contact R.L. and also to obtain a written response from Attorney Ham to the grievance, but to no avail. During the summer months, the court proceedings were delayed, with the court rescheduling the pretrial conference for September 1, 2004. During this time, the OLR continued to seek information from Attorney Ham, but he failed to respond.

¶ 18. On September 1, 2004, Attorney Ham accepted the prosecutor's offer of a plea agreement with R.L. pleading guilty/no contest to the OWI charge. Consequently, R.L.'s license was revoked for six months, he was ordered to undergo an alcohol assessment, and was ordered to pay the sum of $691. R.L. was never notified of this particular offer and was not given the opportunity to accept or reject it. This resolution of the Wisconsin case may have impacted R.L.'s Arizona driver's license.

¶ 19. Although Attorney Ham finally filed a written response to R.L.'s grievance on October 14, 2004, he failed to respond fully to the grievance. The OLR continued to seek the necessary additional information from Attorney Ham, but he never provided it. Ultimately, the OLR again moved for the temporary suspension of Attorney Ham's license to practice law, which this court granted on January 11, 2005. Attorney Ham's license has remained suspended through the date of this opinion.

¶ 20. The referee concluded that by failing to inform his client of the status of negotiations with the State and by failing to respond to his client's numerous requests for information, except on one occasion, Attorney Ham had failed to keep the client reasonably informed about the status of a matter and to comply promptly with reasonable requests for information, contrary to SCR 20:1.4(a). The referee also found that for two separate periods of time, Attorney Ham had willfully failed to provide requested information to the OLR and to cooperate with its grievance investigation, in violation of SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 21. Counts 10-12 relate to Attorney Ham's representation of T.L. on a criminal traffic matter. On July 26, 2004, Attorney Ham met with T.L. for the first and only time. T.L. paid Attorney Ham a $1000 retainer. Nonetheless, Attorney Ham failed to appear at T.L.'s initial appearance on August 2, 2004. After finding probable cause, the circuit court bound the case over for trial and scheduled a status hearing for August 17, 2004. Although T.L. placed numerous telephone calls and even personally left a written message for Attorney Ham at his office, Attorney Ham did not respond. T.L. ultimately retained a different attorney to complete the traffic matter and sought the return of the $1000 retainer he had paid to Attorney Ham.

¶ 22. After T.L. filed a grievance on September 1, 2004, the OLR sent multiple letters to Attorney Ham over the next several months seeking a response to the grievance. Attorney Ham never responded, even after this court issued an order to show cause why his license should not be temporarily suspended. As noted above, Attorney Ham's license to practice law in Wisconsin was temporarily suspended on January 11, 2005.

¶ 23. With respect to the T.L. representation, the referee concluded that Attorney Ham's failure to attend the August 2, 2004, initial appearance, or to otherwise provide any services on T.L.'s behalf had constituted a failure to act with reasonable diligence and promptness, in violation of SCR 20:1.3. He further concluded that by failing to respond to T.L.'s telephone calls or his written message, Attorney Ham had failed to keep the client reasonably informed about the status of a matter and to comply promptly with reasonable requests for information, contrary to SCR 20:1.4(a). Finally, the referee again concluded that Attorney Ham had violated SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(1), when he willfully failed to respond to the OLR's grievance investigation.

¶ 24. Counts 13-17 relate to Attorney Ham's representation of K.E regarding an OWI charge. K.E retained Attorney Ham on September 13, 2004, and paid him a retainer of $1500, which Attorney Ham said would cover the entire representation. Attorney Ham also told K.E that he would appear on her behalf at the initial appearance scheduled for September 30, 2004, and that she need not appear personally. Over the next two weeks, K.E tried to contact Attorney Ham on multiple occasions, but received no response.

¶ 25. Attorney Ham's license was temporarily suspended on September 16, 2004, but he never informed K.E of that fact. Despite the temporary suspension, Attorney Ham did appear in person at the initial appearance on September 30, 2004, and entered a not guilty plea on K.E's behalf. At that time, the assistant district attorney offered a plea agreement to Attorney Ham, pursuant to which K.E would have been required to serve a 30-day jail term.

¶ 26. K.E telephoned Attorney Ham after the court appearance. Attorney Ham informed her that he had accepted a plea agreement on her behalf. He stated, however, that the agreement required her to serve four days in jail and have her driver's license suspended for one year, contingent upon K.E providing proof that she had completed an inpatient alcohol program. Attorney Ham told K.E to meet him at the courthouse on October 18, 2004, for a hearing in her case.

¶ 27. Despite K.E's numerous attempts to reach Attorney Ham over the next several weeks, he again failed to communicate with her. He also failed to appear at the October 18, 2004, hearing. On that date, Attorney Ham's attorney called the court to indicate that Attorney Ham's license had been temporarily suspended. This was the first indication of that fact given to the court, the district attorney's office, or K.E In light of the suspension, the court continued the hearing to November 22, 2004, and advised K.E either to contact Attorney Ham or retain new counsel.

¶ 28. On November 3, 2004, K.E sent a certified letter to Attorney Ham, terminating his services and asking for a return of her case file and a refund of her retainer. K.E appeared at the November 22, 2004, hearing on her own behalf without an attorney, informed the court that she had sought alcohol treatment, and requested that her sentence be four days in jail, pursuant to what Attorney Ham had told her. The assistant district attorney, however, informed her that the plea agreement required her to serve 30 days in jail and a 16-month suspension of her driver's license. When Attorney Ham failed to reply to K.E's request for a return of her retainer, she applied for reimbursement from the Wisconsin Lawyers' Fund for Client Protection (the Fund). In April 2005 the Fund approved payment of $1500 to K.E

¶ 29. The OLR sent letters to Attorney Ham in December 2004 and January 2005 seeking a response to K.E's grievance. Attorney Ham never responded.

¶ 30. The referee concluded that Attorney Ham's failure to return K.E's case file and the unearned portion of her retainer had violated SCR 20:1.16(d). The referee also found that by failing to notify K.E of the temporary suspension of his license to practice law and to advise her to seek other legal counsel, Attorney Ham had violated SCR 22.26(l)(a) and (b), thereby also violating SCR 20:8.4(f). Similarly, the referee concluded that Attorney Ham's failure to notify the circuit court and the district attorney's office of his license suspension had violated SCR 22.26(l)(c), thereby also violating SCR 20:8.4(f). In addition, the referee found that Attorney Ham's appearance at the September 30, 2004, initial appearance while his license to practice law had been temporarily suspended had constituted a violation of SCR 22.26(2), which forbids an attorney whose license has been suspended from engaging in the practice of law in this state, thereby also violating SCR 20:8.4(f) Finally, the referee again concluded that Attorney Ham's willful failure to cooperate with the OLR's grievance investigation had violated SCR 22.03(2), thereby also violating SCR 20:8.4(f).

¶ 31. Counts 18-20 also relate to Attorney Ham's failure to notify a client, the court, and the prosecuting attorney of one of his prior temporary suspensions. In the fall of 2004 Attorney Ham was representing J.M. in multiple misdemeanor and criminal traffic cases. Although Attorney Ham's license was temporarily suspended on September 16, 2004, and the court's order explicitly required him to comply with SCR 22.26, Attorney Ham made none of the required notifications. He simply failed to appear at a November 1, 2004, hearing on J.M.'s pending cases. After the prosecuting attorney filed a grievance, the OLR sent letters to Attorney Ham in December 2004 and January 2005 requesting a written response to the grievance. Attorney Ham failed to respond to any of the letters.

¶ 32. For this conduct, the referee concluded that Attorney Ham had violated SCR 22.26(l)(a) and (b) (Count 18), when he failed to notify his client of his license suspension and SCR 22.26(l)(c) (Count 19), when he similarly failed to notify the circuit court and the district attorney's office. By violating these rules regulating the conduct of lawyers, Attorney Ham also violated SCR 20:8.4(f). The referee also concluded that Attorney Ham's failure to respond to the OLR's grievance investigation had violated SCR 22.03(2), thereby also violating SCR 20:8.4(1)

¶ 33. Counts 21-24 relate to Attorney Ham's representation of client S.H. in a sentencing on a reopened criminal conviction after a probation violation. S.H.'s father paid Attorney Ham a flat fee of $500 to represent S.H. On June 25, 2004, Attorney Ham spoke with S.H., who was in jail at the time. Attorney Ham told S.H. that he would talk to the district attorney about recommending that S.H.'s sentence would consist of only time already served and that Attorney Ham would see S.H. at a bail hearing scheduled for July 9, 2004. Attorney Ham never followed up with S.H. and did not appear for the July 9, 2004, hearing. When the court was unable to reach Attorney Ham, it appointed a public defender for S.H. Ultimately, S.H. was sentenced to 110 days in jail. After multiple attempts, S.H. finally reached Attorney Ham, who told her that he would refund the $500 flat fee to her father. S.H.'s father called and also sent a subsequent letter to Attorney Ham requesting that he complete the refund of the $500. Attorney Ham never responded and never refunded the money. Following the father's grievance, the OLR sent multiple letters to Attorney Ham requesting a response to the grievance. Attorney Ham never responded.

¶ 34. The referee found that Attorney Ham's failure to appear at the July 9, 2004, bail hearing had constituted a failure to act with reasonable diligence and promptness, contrary to SCR 20:1.3. The referee further concluded that by failing to inform S.H. that he had been unable to obtain an agreement with the district attorney and that he would not appear at the bail hearing, Attorney Ham had failed to keep his client reasonably informed in violation of SCR 20:1.4(a). The referee also held that Attorney Ham's failure to return the $500 unearned flat fee after the termination of the representation had violated SCR 20:1.16(d). Finally, the referee concluded that Attorney Ham's failure to respond to the OLR had violated SCR 22.03(2), thereby also violating SCR 20:8.4(f).

¶ 35. Counts 25-30 relate to Attorney Ham's representation of client M.B. regarding theft charges. M.B. paid Attorney Ham . a $3000 fee to represent her on those charges. After Attorney Ham appeared with M.B. at her initial appearance and a status conference, Attorney Ham's license was temporarily suspended on September 16, 2004. Attorney Ham did not inform either M.B. or the court of this fact. Indeed, M.B. sent documents to Attorney Ham and attempted to contact him, but received no response from him. Although Attorney Ham's license was reinstated on November 17, 2004, Attorney Ham did not contact M.B. and failed to appear at M.B.'s December 14, 2004, pretrial conference. The pretrial conference had to be rescheduled and M.B. was forced to obtain new counsel. Attorney Ham failed to return any of the $3000 fee and failed to respond to the OLR's letters concerning M.B.'s grievance.

¶ 36. The referee concluded that Attorney Ham's failure to attend the December 14, 2004, pretrial conference or otherwise to advance M.B.'s interests during the time his license was not suspended had constituted a failure to act with reasonable diligence and promptness, contrary to SCR 20:1.3. The referee also found that Attorney Ham's failure to communicate with M.B., other than during the temporary suspension of his license, had constituted a failure to keep the client reasonably informed about a matter, in violation of SCR 20:1.4(a). Attorney Ham's failure to return the unearned portion of the fee qualified as a failure to protect his client's interests following the termination of the representation, contrary to SCR 20:1.16(d). The referee further concluded that Attorney Ham's failure to notify his client (Count 28) and the presiding court (Count 29) had violated SCR 22.26(l)(a), (b), and (c) respectively, thereby also violating SCR 20:8.4(f). Finally, the referee found that Attorney Ham's failure to respond to the OLR's grievance investigation had violated SCR 22.03(2), thereby again violating SCR 20:8.4(f).

¶ 37. Counts 31-34 stem from a letter that a circuit judge wrote to the OLR regarding Attorney Ham's misconduct in two cases pending in the judge's court. The first case involved Attorney Ham's representation of R.J. regarding a criminal traffic charge. After Attorney Ham had made several appearances on R.J.'s behalf and had obtained the suppression of certain evidence, the court ordered the parties to brief an issue relating to the State's attempt to impose a penalty for R.J.'s alleged refusal to submit to a chemical test. Attorney Ham's license was temporarily suspended on September 16, 2004. Attorney Ham failed either to notify the court or to file the required brief.

¶ 38. Attorney Ham's license was reinstated on November 17, 2004, but Attorney Ham still did not file the brief. The court thereafter issued an amended briefing schedule that required the brief to be filed by December 15, 2004. Attorney Ham again failed to contact the court or file the necessary brief. At this point, the court issued an order requiring Attorney Ham to appear in person on January 3, 2005. Although Attorney Ham's license was still valid at that time, Attorney Ham did not appear and had no further communication with the court.

¶ 39. The other matter involved Attorney Ham's representation of W.K. on similar traffic charges. Attorney Ham attended W.K.'s initial appearance on August 25, 2004. Because Attorney Ham's license was suspended on the date of W.K's pretrial hearing, another attorney appeared on his behalf at that hearing. A plea hearing was subsequently scheduled for January 9, 2005, by which time Attorney Ham's license had been reinstated. Although Attorney Ham remained counsel of record on that date, he did not appear. W.K. appeared by himself and told the court that he had been unable to reach Attorney Ham. W.K. ultimately was forced to retain another attorney.

¶ 40. The OLR sent letters to Attorney Ham in February and March 2005 asking him to respond to the circuit judge's grievance. Attorney Ham failed to submit any response. Indeed, when the postal carrier attempted to deliver the OLR's certified letter to Attorney Ham's office, he asked the carrier to mark the letter as "undeliverable as addressed." The carrier replied that he could not do so and marked the letter as "refused."

¶ 41. With respect to the R.J. case, the referee concluded that Attorney Ham's failure to file the brief as required under the court's briefing schedule and his failure to appear in court on January 3, 2005, as ordered by the court, had constituted a failure to act with reasonable diligence and promptness, contrary to SCR 20:1.3. The referee also found that by not appearing on January 3, 2005, Attorney Ham had knowingly disobeyed an obligation under the rules of a tribunal, in violation of SCR 20:3.4(c).

¶ 42. With respect to the W.K. matter, the referee found that Attorney Ham's failure to appear at WK.'s plea hearing on January 9, 2005, when he was counsel of record and licensed to practice, had violated SCR 20:1.3.

¶ 43. The referee further concluded that Attorney Ham's refusal to accept delivery of the OLR's letter and his willful failure to respond to the OLR's grievance investigation had violated SCR 21.15(4), SCR 22.03(2), SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 44. Counts 35-40 relate to Attorney Ham's representation of K.M. in two separate criminal cases. In the first case, Attorney Ham appeared with K.M. at the initial appearance, the preliminary hearing, and the arraignment. The circuit court then scheduled a telephonic status conference for September 30, 2004. As noted previously, Attorney Ham's license was temporarily suspended on September 16,2004. On September 27,2004, K.M. wrote to the court that he had repeatedly attempted to contact Attorney Ham over the previous two months, but that Attorney Ham had not responded. In light of K.M.'s request for a continuance to find new counsel, the court continued the telephonic status conference until December 7, 2004.

¶ 45. In the second case involving K.M., Attorney Ham attended KM.'s initial appearance, but failed to attend a preliminary hearing scheduled for July 29, 2004. After attempting, unsuccessfully, to reach Attorney Ham, and holding him responsible for witness fees, the court rescheduled the hearing for August 5, 2004, at which time Attorney Ham did appear. Although Attorney Ham's license was temporarily suspended on September 16, 2004, he did not notify either K.M. or the court of that fact.

¶ 46. On January 10, 2005, the court ordered that KM.'s two cases be consolidated. Attorney Ham's license was temporarily suspended again the following day, but he did not notify K.M., opposing counsel, or the court of the suspension. Attorney Ham failed to appear at the scheduling conference held on January 21, 2005. K.M. again informed the court that Attorney Ham had not communicated with him. The court called Attorney Ham's office, but was unable to leave a message because the answering machine's message storage was full.

¶ 47. On January 24, 2005, the court ordered Attorney Ham to appear on February 10, 2005, to show cause why he had failed to communicate with his client, why he had failed to appear at the January 21, 2005, scheduling conference, and why he should not be removed as counsel. Attorney Ham failed to appear at the hearing on February 10, 2005. The court then issued an order disqualifying Attorney Ham from K.M.'s cases, requiring Attorney Ham to prepare an itemized billing statement, and mandating that Attorney Ham return any unearned fee to K.M. by March 1, 2005. Attorney Ham failed to take the actions as ordered by the circuit court and also failed to return K.M.'s files.

¶ 48. The OLR sent letters to Attorney Ham at both his home and office addresses regarding the K.M. representation in February and March 2005. Attorney Ham refused delivery of the OLR's certified letter and never responded to OLR's grievance investigation.

¶ 49. With respect to the K.M. representation, the referee found that Attorney Ham had failed to keep his client reasonably informed about the status of a matter, contrary to SCR 20:1.4(a). The referee also concluded that Attorney Ham's failure to return the unearned portion of the $5000 fee had constituted a failure to protect a client's interests upon termination of the representation, in violation of SCR 20:1.16(d). The referee further found that, by failing to appear in court on February 10, 2005, and by failing to prepare and distribute an itemized billing statement, Attorney Ham had knowingly disobeyed obligations under the rules of a tribunal, contrary to SCR 20:3.4(c). The referee also ruled that Attorney Ham had violated SCR 22.26(l)(a) and (b), thereby also violating SCR 20:8.4(f), when he failed to inform his client that his license had been temporarily suspended on September 16, 2004, and January 11, 2005. Similarly, the referee concluded that Attorney Ham's failure to inform the circuit court and the prosecuting attorney of his temporary license suspensions had violated SCR 22.26(l)(c), thereby also violating SCR 20:8.4(f). Finally with respect to the K.M. representation, the referee found that Attorney Ham's willful failure to accept delivery of the OLR's certified letter and to respond to the OLR's grievance investigation had violated SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6) thereby also violating SCR 20:8.4(f).

¶ 50. Count 41 relates to Attorney Ham's representation of S.K. in a criminal matter and the subsequent grievance filed by S.K. and her parents. The OLR sent Attorney Ham a letter on November 18, 2004, requesting a written response to the grievance, but Attorney Ham did not respond. The OLR sent a second letter, by regular and certified mail, on December 16, 2004. Although the certified letter was unclaimed, the letter sent by regular mail was not returned, indicating that it had been delivered. The OLR's district committee made two more unsuccessful attempts to contact Attorney Ham in May 2005. Attorney Ham never responded to the OLR's requests for information. Consequently, the referee concluded that Attorney Ham had violated SCR 21.15(4), SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 51. Counts 42-48 relate to Attorney Ham's representation of C.L. in a criminal matter. After entering an appearance in C.L.'s case on August 31, 2004, Attorney Ham's license was temporarily suspended on September 16, 2004. Attorney Ham failed to notify C.L., the prosecutor, or the court of his suspension. Although a final pretrial conference had been scheduled for October 28, 2004, Attorney Ham told C.L. that the hearing had been cancelled. Consequently, C.L. did not appear at the conference. Attorney Ham also failed to appear. Another attorney, who was not representing C.L., did show up at the conference and stated that Attorney Ham had asked him to notify the court of his license suspension and to request that the court leave the case on the trial schedule.

¶ 52. The court held another pretrial conference on November 11, 2004. Attorney Ham again did not appear. C.L. did appear and told the court that he had again been unable to reach Attorney Ham despite having left many messages at his office. C.L. also informed the court that on November 2, 2004, he had delivered a $7500 cashier's check to Attorney Ham that was to be used to pay restitution.

¶ 53. The court continued the case until December 1, 2004, when it conducted another status conference. Although C.L. appeared, Attorney Ham did not, despite having been notified of the conference by the court. At that hearing, C.L. stated that Attorney Ham had previously told him that he was working out a deal with the assistant district attorney for the payment of restitution in the present case and another case in return for C.L.'s release from jail on an electronic monitoring device. The assistant district attorney denied having had any such conversations with Attorney Ham and stated that no restitution had been paid on C.L.'s behalf.

¶ 54. At a further hearing on December 17, 2004, C.L. informed the court that he could not afford to hire another attorney because he had scraped together all of his money to pay the $7500 in restitution and Attorney Ham's retainer of $1750.

¶ 55. At that point, the assistant district attorney subpoenaed Attorney Ham's trust account records. The records showed that Attorney Ham had deposited the $7500 into his client trust account on November 8, 2004. The records also showed that Attorney Ham had made 32 disbursements from his trust account from November 2, 2004, through December 12, 2004. Included among those disbursements were 23 withdrawals for cash, totaling more than $5000. Attorney Ham had also issued a trust account check for $815 to the company that managed his apartment building and two trust account checks each for $454 to the owner of the building in which his law office was located. Attorney Ham had also used a trust account check in the amount of $404.66 to pay his annual dues and assessments to the State Bar of Wisconsin. Ultimately, because of questions concerning the source of C.L.'s $7500 cashier's check, the district attorney obtained a freeze on the $7500 in Attorney Ham's client trust account.

¶ 56. The OLR sent letters to Attorney Ham in December 2004 and January 2005 requesting information on the grievance that had been filed in this matter. Attorney Ham failed to submit any response.

¶ 57. Based on these facts concerning the C.L. representation, the referee concluded that Attorney Ham had violated SCR 22.26(l)(a) and (b) (Count 42), and SCR 22.26(l)(c) (Count 43), thereby also violating SCR 20:8.4(f), when he failed to notify C.L., the prosecuting attorney, and the court of his temporary license suspension. The referee also concluded that by retaining the $7500 from his client instead of promptly using those funds to provide restitution in C.L.'s criminal matters, Attorney Ham had violated SCR 20:1.15(d)(1). The referee also found that Attorney Ham's failure to appear at the December 1, 2004, status conference, after he had received notice from the court and his license had been reinstated, had constituted a failure to act with reasonable diligence and promptness, contrary to SCR 20:1.3. The referee further concluded that Attorney Ham had violated SCR 20:1.15(e)(4)a., when he had made cash disbursements from his client trust account. The referee also ruled that by disbursing client trust account funds to pay his office rent, his apartment rent, and his annual bar dues and assessments, Attorney Ham had failed to hold client property in trust, separate from his own property, contrary to SCR 20:1.15(b)(1). Finally, the referee again concluded that Attorney Ham's willful failure to respond to the OLR's grievance investigation had violated SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 58. Attorney Ham's client RB. also filed a grievance against him. As it had done on other occasions, the OLR sent a copy of the grievance to Attorney Ham's home and office address and asked for a written response. Approximately a month later, the OLR sent another letter to Attorney Ham asking for a response. Attorney Ham never responded. Accordingly, the referee concluded that Attorney Ham had violated SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 59. Counts 50-53 relate to Attorney Ham's representation of G.H. in a federal criminal matter. Attorney Ham represented G.H. through trial and sentencing. Shortly thereafter, on August 2, 2004, G.H.'s wife delivered a $7000 retainer fee to Attorney Ham to cover G.H.'s appeal. After delivering the retainer, neither G.H. nor his wife heard from Attorney Ham, despite multiple voicemail messages and a letter from G.H.'s wife. After nothing had been done on the appeal, in March 2005 the U.S. Court of Appeals for the Seventh Circuit issued an order to show cause why the appeal should not be dismissed. Ultimately, the Seventh Circuit discharged Attorney Ham as counsel and appointed new counsel for G.H. Attorney Ham never refunded the $7000 retainer to G.H. or his wife.

¶ 60. In April and May 2005 the OLR sent letters to Attorney Ham's home address and post office box requesting a response to the grievance concerning his representation of G.H. Attorney Ham never responded.

¶ 61. The referee concluded that Attorney Ham's failure to take any action on G.H.'s appeal had violated SCR 20:1.3. The referee also found that Attorney Ham had failed to keep the client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a). By failing to return the $7000 retainer, the referee concluded that Attorney Ham had violated SCR 20:1.16(d). Finally, the referee again concluded that Attorney Ham's failure to respond to the OLR grievance investigation had violated SCR 22.03(2), and SCR 22.03(6), thereby also violating SCR 20:8.4(f).

¶ 62. In light of the 53 separate counts of professional misconduct concerning 16 different clients, the referee recommended that the court revoke Attorney Ham's license to practice law in this state. The referee emphasized the clear pattern of repeated violations. He also noted the serious nature of the misconduct, especially the misuse of trust account funds to pay Attorney Ham's personal expenses. The referee also recommended that Attorney Ham be required to pay restitution to four clients in the total amount of $10,000. The referee further recommended that, for two clients for whom Attorney Ham had done some work, he be required to provide an accounting to them and return the unearned retainer fees. Finally, the referee recommended that Attorney Ham be ordered to pay the costs of the proceeding.

¶ 63. After our independent review of the matter, we approve and adopt the referee's findings of fact and conclusions of law. We agree that the serious nature and obvious pattern of Attorney Ham's professional misconduct requires that his license to practice law in Wisconsin be revoked in order to protect the public. We also agree with the referee's recommendation that Attorney Ham be required to pay restitution to clients M.H., S.H. (or her father), and G.H and to the Wisconsin Lawyers' Fund for Client Protection (for its payment to K.E). We also agree that Attorney Ham must be required to provide a full accounting to clients M.B. and K.M., and to return any unearned fees to them. Finally, we agree that Attorney Ham should be required to pay the costs of this proceeding, which were $2431.55 as of December 29, 2005.

¶ 64. IT IS ORDERED that the license of David L. Ham to practice law in Wisconsin is revoked effective the date of this order.

¶ 65. IT IS FURTHER ORDERED that David L. Ham comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.

¶ 66. IT IS FURTHER ORDERED that within 60 days of the date of this order, David L. Ham make restitution payments to the following clients and the Wisconsin Lawyers' Fund for Client Protection in the following amounts:

M.H. $1000
S.H. (or her father) $ 500
G.H. $7000
Wisconsin Lawyers' Fund $1500 for Client Protection (K.E)

¶ 67. IT IS FURTHER ORDERED that within 60 days of the date of this order, David L. Ham provide an itemized invoice and full accounting to clients M.B. and K.M. and return any unearned retainer fees to them.

¶ 68. IT IS FURTHER ORDERED that within 60 days of the date of this order, David L. Ham pay to the Office of Lawyer Regulation the costs of this proceeding.

¶ 69. IT IS FURTHER ORDERED that restitution to clients M.H., S.H., and G.H. and to the Wisconsin Lawyers' Fund for Client Protection and the return of unearned retainer fees to clients M.B. and K.M. is to be completed prior to paying costs to the Office of Lawyer Regulation.

       SCR 22.17(2) provides: Review; appeal.

        (2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.

       SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit and misrepresentation."

       SCR 22.03(2) provides: Investigation.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       SCR 22.03(6) provides that "[i]n the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to fiirnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 21.15(4) provides that "[e]very attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys."

       SCR 20:8.4(f) provides that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       SCR 20:1.16(d) provides: Declining or terminating representation.

        (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       See note 2.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       SCR 20:1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       See note 2.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       See note 12.

       SCR 22.26(1) states in relevant part: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.

       See note 7.

       SCR 22.26(l)(c) further states in relevant part that on or before the effective date of license suspension or revocation an attorney shall:
      (c) Promptly provide written notification to the court or administrative agency and the attorney for each party in a matter pending before a court or administrative agency of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. The notice shall identify the successor attorney or the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.

       See note 7.

       SCR 22.26(2) provides:
      (2) An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.

       See note 7.

       See note 4.

       See note 7.

       See note 29.

       See note 31.

       See note 7.

       See note 4.

       See note 7.

       See note 22.

       See note 2.

       See note 12.

       See note 4.

       See note 7.

       See note 22.

       See note 2.

       See note 12.

       See note 29.

       See note 31.

       See note 7.

       See note 4.

       See note 7.

       See note 22.

       SCR 20:3.4(c) states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists."

       See note 22.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       See note 2.

       See note 12.

       See note 56.

       See note 29.

       See note 7.

       See note 31

       See note 7.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       See note 6.

       See note 4.

       See note 5.

       See note 7.

       See note 29.

       See note 31.

       See note 7.

       SCR 20:1.15(d)(l) states: Prompt notice and delivery of property.
      (1) Notice and disbursement. Upon receiving funds or other property in which a client has an interest, or in which the lawyer has received notice that a 3rd party has an interest identified by a hen, court order, judgment, or contract, the lawyer shall promptly notify the client or 3rd party in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, the lawyer shall promptly deliver to the client or 3rd party any funds or other property that the client or 3rd party is entitled to receive.

       See note 22.

       SCR 20:1.15(e)(4)a. states that "[n]o disbursement of cash shall be made from a trust account or from a deposit to a trust account, and no check shall be made payable to 'Cash.'"

       SCR 20:1.15(b)(l) provides: Segregation of trust property.
      (1) Separate account. A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation. All funds of clients and 3rd parties paid to a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts.

       See note 4.

       See note 5.

       See note 7.

       See note 4.

       See note 5.

       See note 7.

       See note 22.

       See note 2.

       See note 12.

       See note 4.

       See note 5.

       See note 7.


source: Caselaw Access Project

author: CURLEY, J. FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bruce T. Davis, Defendant-Appellant.
    Court of Appeals

      No. 2004AP822-CR.

      Oral argument December 7, 2005.

      Decided January 24, 2006.

    2006 WI App 23
    (Also reported in 710 N.W.2d 514.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Russell D. Bohach of Milwaukee, with oral argument by Russell D. Bohach.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general, with oral argument by Sarah K. Larson.

    Before Fine, Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. Bruce T. Davis appeals from the judgment emanating out of a jury trial convicting him of three counts of burglary, one count of armed robbery, and one count of misdemeanor receiving stolen property, contrary to Wis. Stat. §§ 943.10(l)(a), 943.32(l)(b) & (2), and 943.34(l)(a) (1999-2000). Davis also appeals the order denying his postconviction motions. Davis argues that the trial court erred when, sua sponte, it joined the armed robbery charge with the burglary and receiving stolen property charges for trial, and that the trial court erroneously exercised its discretion when it denied his request to introduce evidence that he was mistakenly identified and charged as the burglar in a similar burglary occurring within the same time frame. Because the trial court's analysis that led to the joinder of charges was flawed and its discretionary call concerning the introduction of evidence was an erroneous exercise of discretion, we are satisfied that the real controversy has not been fully tried. Consequently, we exercise our statutory right to a discretionary reversal under Wis. Stat. § 752.35, reverse the judgment of conviction and remand for a new trial.

I. Background.

¶ 2. On March 4, 2001, Davis was charged with five counts of burglary. The burglaries occurred between January 9, 2001, and March 6, 2001. The first burglary, occurring on January 9, 2001 at 2374 North Weil Street, was reported to the police by Jill Christ-nacht, who told the police that after returning home from work that evening at approximately 7:00 p.m., she observed that a small window on her front door was broken, and upon checking her home for missing property, she noticed that jewelry and numerous CDs had been taken. She then contacted a store selling used CDs and discovered that someone had brought in her unique collection of CDs and sold them. The police went to the store and showed a photo array to the employee who had waited on the man who brought in the stolen CDs. The photo array included a picture of Davis, who had been identified by police as a suspect. The employee picked out Davis's picture as the person who sold the CDs. Blood samples were recovered from the burglary, however, they turned out not to be Davis's. Davis denied ever being in the store or selling any CDs.

¶ 3. The next burglary with which Davis was charged occurred on February 17, 2001. Upon arriving at 305 East Lloyd Street, the police determined that entry occurred to the upper flat and that entry had been made by prying open the front door and then punching out a piece of plexi-glass on the interior door. Daniel Hartwig, the resident of the upper flat, reported that he returned home at approximately 5:00 a.m. that day and saw the damage, but he was too inebriated to call the police and went to bed. At about 10:15 a.m., he awoke and observed a person, later identified by him as Davis, standing in front of him. Hartwig stated that Davis pretended to be a police officer and to be talking into a police radio. Hartwig then observed Davis pick up Hartwig's pants, remove money and Hartwig's driver's license from a pocket and leave.

¶ 4. The third burglary with which Davis was charged occurred on March 3, 2001. Jason Walton, one of several people living at 1906 East Newberry Boulevard, told the police that he went into the living room of the duplex at approximately 10:30 a.m. and saw a man, later identified as Davis, standing in the living room. Davis told him he was waiting for someone. Later, Davis told Walton that he was leaving to get a soda, and Walton saw Davis leave with some bags similar to those owned by one of his roommates. It was later discovered that numerous items were stolen besides the bags, including some basketball tickets. The police went to the Bradley Center on the day on which the game that corresponded to the stolen tickets was played and asked the person sitting in the seat of one of the stolen tickets where he got the ticket. This person identified Davis from the photo array as the person who sold him the tickets.

¶ 5. The fourth burglary occurred two days later at 1536 North Franklin Place. Dwayne Santner told police that at approximately 9:45 p.m., he walked towards his bedroom and discovered a man, later identified as Davis, standing by his dresser. When Santner inquired as to what he was doing, Davis told him that, "[t]he little guy with the crew cut let me in." After being told that no one living there matched that description and after another occupant entered the room and confronted Davis, Davis said he had a gun and would use it. He was allowed to leave. No gun was ever seen. Santner discovered that approximately sixty dollars was missing from his room. Santner was shown the photo array by the police and he identified Davis.

¶ 6. The last burglary occurred the next day, March 6, 2001, at 2564 North Pierce Street. There, Kathleen Montanye told the police that at approximately 5:30 p.m., she heard a noise, and, thinking that it was her fiancé, Mark Jurgenson, she went downstairs. Montanye stated that she observed a man in the dining room, later identified as Davis, holding a cardboard box containing her fiancé's tools and some other items. When she asked him what he was doing, Davis said that he was picking up some tools for Mark. When Montanye challenged this explanation and said she was going to call her fiancé, Davis fled with the stolen items. Montanye picked Davis out from a photo array shown to her.

¶ 7. On April 10, 2001, Davis was charged with one count of armed robbery. According to the victims, Joseph Hinnendael and Kevin Mueller, on March 7, 2001, the two roommates were in the living room at 2369 North Booth Street when a man, later identified as Davis, entered the apartment through a partially broken door and offered to sell them several hygiene products which he placed on the table. When the two men told Davis that they had no money, Davis pulled a gun from his waistband, pointed it at Mueller and Hinnendael, and demanded that the two men place various objects belonging to them, such as a video camera and a PlayStation, into a bag. They complied and Davis left.

¶ 8. After viewing the photo array, many of the victims were asked to view a lineup. At it, Davis was identified by several of the victims. Davis was the only person who was in both the photo array and the lineup. Before trial, the State amended the first count of burglary to misdemeanor receiving stolen property, apparently because of a lack of evidence tying Davis to the burglary. The burglary occurring on February 17, 2001, was dismissed, despite the positive identification by the victim both in a photo array and at a later lineup, after the State verified Davis's claim that he was incarcerated on that date.

¶ 9. At a scheduling conference, the trial court introduced the possibility of joining the two cases for trial. After briefly questioning the lawyers, and over Davis's attorney's objection, the trial court decided to consolidate the two cases. Later, Davis's attorney asked the court to reconsider its decision. This motion was denied. In pretrial motions, Davis sought to call Daniel Hartwig, the victim who had positively identified Davis as the burglar of his house, as a witness. The trial court denied the motion. A jury found Davis guilty of all counts. He was sentenced on the armed robbery count to six years, six months of confinement, to be followed by eight years, six months of extended supervision. On the three burglaries, he was sentenced on count one to three years of confinement, four years of extended supervision; on count two, to four years of confinement, six years of extended supervision; and on count three, to three years of confinement, four years of extended supervision. On the receiving stolen property charge, he was sentenced to nine months of incarceration. All the sentences were ordered to be served consecutively, for a total of sixteen years, six months of confinement, followed by twenty-two years of extended supervision. A postconviction motion was heard and denied. This appeal follows.

II. Analysis.

¶ 10. Davis raises two issues on appeal. First, he claims that the trial court erred in deciding, sua sponte, to join the burglary and receiving stolen property charges with the armed robbery charge for trial. He argues that joinder was inappropriate because the charges did not meet the test for joinder set forth in Wis. Stat. § 971.12, and that the joinder of the cases was extremely prejudicial to him. Second, he argues that the trial court erroneously exercised its discretion in denying his request to introduce the testimony of Daniel Hartwig, the victim of a dismissed burglary charge, who identified Davis as the burglar, despite the fact that Davis was incarcerated at the time. Davis's defense to the charges was that the victims mistakenly identified him and that another person looking like him committed all of the crimes. He wanted to call Hartwig to show that there was irrefutable proof that at least one of the victims misidentified him.

¶ 11. The State counters that joinder was appropriate and, in any event, any error was harmless because the trial court gave a curative instruction and there was overwhelming evidence of Davis's guilt introduced at trial. As to the evidentiary issue, the State contends that the trial court properly exercised its discretion, and further, that the State would have been unfairly prejudiced if Hartwig had been allowed to testify.

¶ 12. We first address the joinder issue. With respect to joinder, Wis. Stat. § 971.12(1) provides, in relevant part that:

Two or more crimes may be charged in the same complaint... in a separate count for each crime if the crimes charged... are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.

¶ 13. "To be of the 'same or similar character' under sec. 971.12(1), Stats., crimes must be the same type of offenses occurring over a relatively short period of time and the evidence as to each must overlap." State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988) (citing State v. Hoffman, 106 Wis. 2d 185, 208, 316 N.W.2d 143 (Ct. App. 1982)). "It is not sufficient that the offenses involve merely the same type of criminal charge." Id. "Whether charges are properly joined in a criminal complaint is a question of law." Id.

¶ 14. In Francis v. State, 86 Wis. 2d 554, 560-61, 273 N.W.2d 310 (1979), our supreme court approved of joinder where the charges "involved two or more incidents which exhibited the same modus operandi, were close in time, and occurred within the same geographic area, the acts were connected or constituted parts of a common scheme or plan which tended to establish the identity of the perpetrator." Hamm, 146 Wis. 2d at 138-39 (citing Francis, 86 Wis. 2d at 560-61). There, the court held that because the evidence of each crime would be admissible in separate trials for each, joinder was proper under Wis. Stat. § 971.12(1). Francis, 86 Wis. 2d at 561.

¶ 15. With that background in mind, we next examine the trial court's reasoning when it determined that joinder was appropriate. At a hearing on July 20, 2001, the trial court assumed that the addresses of the armed robbery and the burglaries were all in the same neighborhood. In addition, the trial court believed that no personal hygiene products were ever displayed to the victims of the armed robbery, and that the robber's claim that he had products to sell was a ruse.

In this case, I understood that the rouse [sic] was to sell hygiene products which Mr. Davis said he had in the bag. At some point, Mr. Davis formed the intent to rob one of the people who was present at North Booth Street on March 2nd, 2001 and then left without having displayed hygiene products.

¶ 16. The trial court's assumption that the crimes all occurred in the same neighborhood was not entirely correct. While the burgled residences and the site of the armed robbery were all on the east side of Milwaukee, the Franklin Place address lies several blocks south of Brady Street, and is located on the other side of the Milwaukee River, some distance from the Riverwest neighborhood where one of the burglaries and the armed robbery occurred. The Newberry Boulevard burglary occurred in a different neighborhood altogether, approximately one mile from the Franklin Place burglary and across the river from the Riverwest neighborhood.

¶ 17. As to the personal hygiene products, contrary to the trial court's belief, the products were shown to the victims. This is important because the trial court believed that the armed robbery had started out as a burglary, and when the burglar discovered people in the home, the robber came up with a story to account for his presence.

It seems to me that if there was evidence that the armed robbery on March 7th, 2001 grew out of a foiled burglary attempt when Mr. Davis discovered that the residents of the house were home, that that would be an appropriate basis for consolidation. The fact that Mr. Davis had no hygiene products to sell is suggestive of his stating that as a guise to explain his presence at the house at 2369 North Booth Street.

The trial court then concluded:

I'm satisfied that the inference can be drawn that his presence was unexplained at 9:45 p.m. and he had to come up with this pretext of selling personal hygiene products in order to explain why he was standing at their door, and he rolled with the punches and decided to pull his gun out and rob them when he saw property in the apartment that caught his eye. I'm going to order the cases consolidated under Section 971.12 so that they can be tried before a single jury.

¶ 18. However, because the robber displayed hygiene products, and it was only after the victims indicated that they had no money with which to buy the items that a gun was brandished, the trial court's theory has been undermined. Consequently, contrary to the court's opinion, the modus operandi for the armed robbery - an announced entry into the apartment for the purpose of selling items and stealing the property of others at gunpoint - was quite distinct from that of the three charged burglaries where the mode of entry was unknown, no weapons were ever displayed, and the burglar fled with stolen items, sometimes before they were even discovered missing. In addition, despite the assistant district attorney's initial statement to the trial court that the crimes were all committed during the day, in fact the burglaries and the armed robbery occurred at different times of the day and night. Moreover, it appears that the trial court analyzed the joinder issue under the belief that the existence of overlapping evidence was unnecessary because the trial court believed that the armed robbery and the burglaries were similar, a legal conclusion with which, as we have already stated, we do not agree.

¶ 19. The trial court explained:

A judge can consolidate under Section 971.12 any cases where there is overlapping evidence or cases which are categorically similar, even if there is no overlapping evidence. Wisconsin has only considered the consolidation of cases where there is overlapping evidence. State [v.] Hamm, ... is the leading case in Wisconsin considering consolidation where evidence is overlapping. State [v.] Hamm appears at 146 Wis.2d 130.
The federal courts, when construing Rule 14 of the Federal Rules of Criminal Procedure and Rule 8 of the Federal Rules of Criminal Procedure dealing with a joinder of crimes and severance, have noted that consolidation is appropriate where there is a categorical similarity between the offenses, even if there is no overlapping evidence.

Thus, in reaching its initial conclusion that consolidation of the two cases was warranted, the trial court incorporated and relied on several factual errors.

¶ 20. Later, the trial court addressed the joinder issue a second time when Davis's attorney asked the court to reconsider its earlier decision. The trial court again inaccurately stated that all the burglaries occurred in the same neighborhood: "The similarity I'm focusing on is, we've got three burglaries and [one] robbery within a five day period, all within the same neighborhood. That indicates that a burglar, robber, is as busy as they can be." However, as noted, Franklin Place is not in the same Riverwest neighborhood where Booth and Pierce Streets are located, and neither is Newberry Boulevard. Consequently, the trial court relied on incorrect information when declining to change its ruling:

Well, I'm satisfied that for whatever reasons, the robber on March 7th of 2001 chose to start talking when the door was answered and only later formed the intent to rob the people at North Booth Street when he saw an opportunity to do so.
I do conclude, that given the time frame of the burglaries and the robbery in the usual guise to see if anybody is home before a burglary is attempted, that there is a basis for joinder, so your request to reconsider the ruling on joinder is denied.

Again, the trial court's decision to join these two matters for trial was based on factual errors. The burglaries were not all committed in the same neighborhood, and the armed robber displayed personal hygiene products, suggesting that it was not a burglary-gone-bad as the trial court thought. As a result, the modus operandi was different for the armed robbery, and thus, there is no evidence of a common scheme between the burglaries and the armed robbery charge. Cf. Francis, 86 Wis. 2d at 561. Moreover, given the correct facts, it is unlikely that the armed robbery would have been admissible as other acts evidence in a trial of the burglary charges. Consequently, the trial court's decision to try these matters together rests on very shaky ground, as the actual facts were contrary to the trial court's beliefs.

¶ 21. We also cannot find that the trial court's joinder decision was harmless error.

We hold that misjoinder of offenses in some circumstances may be harmless. "Such a policy is acceptable and even desirable when harmlessness is demonstrated by overwhelming evidence of guilt or when the court is convinced for other reasons that 'the error did not influence the jury or had but very slight effect.' Defendants will suffer from the application of [the harmless error rule] to [misjoinder] only if, in the name of 'efficiency,' the doctrine is not carefully and strictly construed."

State v. Leach, 124 Wis. 2d 648, 671-72, 370 N.W.2d 240 (1985) (citation omitted; alteration by Leach).

The test to be applied for considering harmless error was just stated by this court in State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222, filed this same date, accepting Strickland v. Washington, 104 S. Ct. 2052 (1984), as there is no reasonable possibility that the error contributed to the conviction.

Id. at 674 (footnote omitted).

¶ 22. The only evidence connecting Davis to the crimes were separate eyewitness identifications. No stolen goods were found in Davis's house or on his person. No blood stains, fingerprints or clothing tying him to the crimes were ever recovered. In addition, the initial descriptions given to the police were quite varied. For example, the victims of the armed robbery told the police that the robber was in his early 20's, but Davis was 35 years old at the time of trial. Another one of the victims said the burglar had dark blotches on his face. However, Davis had no visible skin discolorations. Further, all of the victims saw the same six photos and the same lineup, and the only person in both the photo array and the lineup was Davis, thus raising the possibility that the identifications were potentially suggestive. Consequently, there was no overwhelming evidence of guilt submitted at trial. Moreover, Davis was likely unfairly prejudiced by the joinder, as Davis's attorney argued to the court:

To have all of these matters brought together would be all witnesses sitting together in one location. And I believe that my client - it is much more likely that my client would be found guilty of the armed robbery - the burglaries or the armed robbery because of the connection and the identification of the others.
We've already seen that one of the positive identifications made at the preliminary hearing on the basis of what [the assistant district attorney] has said was absolutely wrong because my client was in a place where he could not have been where this individual said he was. He was in Racine Correctional Institution.

We agree. The submission of the armed robbery charge along with the burglary charges greatly enhanced Davis's chances of being found guilty of the armed robbery charge. Further, the curative instruction given by the court was not sufficient to eliminate the potential prejudice. So, for all of the aforementioned reasons, we cannot find that the joinder constituted harmless error.

¶ 23. Next, Davis argues that the trial court erroneously exercised its discretion when it denied his request to call the burglary victim, who misidentified Davis as the burglar, to testify. He argues that the trial court failed to conduct a proper analysis under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and, had a proper analysis been conducted, it would have resulted in this witness being allowed to testify. The State counters that the trial court implicitly applied the proper test and that the trial court correctly determined that the witness was irrelevant. The State also submits that introduction of evidence of a misidentifi-cation would have been unfairly prejudicial to the State. We are not persuaded.

¶ 24. Several constitutional rights are implicated in criminal trials which affect the introduction of evidence. Criminal defendants have a right to be heard and to present witnesses. "The opportunity to be heard includes the right to 'present a complete defense.'" Brown County v. Shannon R., 2005 WI 160, ¶ 65, 286 Wis.2d 278, 706 N.W.2d 269 (citing California v. Trombetta, 467 U.S. 479, 485 (1984)). "The right to present a complete defense, in turn, includes the right to offer the testimony of witnesses." Id. (footnote omitted). However, "[t]he constitutional right to be heard is not so broad as to preclude the State from establishing rules of evidence and procedure that impose limits on a party's ability to present evidence ...." Id.

¶ 25. The standard of review for a trial court's decision to admit evidence is whether the trial court misused its discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). The question then is whether the trial court exercised its discretion in accordance with accepted legal standards and the facts of record. Id.

¶ 26. Accordingly, we look to see whether the rules of evidence prevented Davis from presenting his defense. Sullivan, 216 Wis. 2d 768, is the seminal case for the admission of "other acts" evidence. In it our supreme court set forth a three-step test for the admission of such evidence. The three-step analytical framework is as follows:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03.

Id. at 772-73 (footnote omitted).

¶ 27. While early on Davis argued that Hartwig's testimony should be admitted to explore possible poor police tactics surrounding the identification, later his attorney argued that he wanted the evidence admitted for identification purposes, for the purpose of showing that the crimes were committed by another.

¶ 28. Looking at the first factor, the State concedes that this witness's testimony was offered for identification purposes, an admissible purpose under Wis. Stat. § 904.04(2). As to the second Sullivan factor, the misidentification of Davis as the burglar, under circumstances similar to those of the other burglaries, relates to a fact that was of consequence to the jury's determination and was relevant. This is not a situation where someone accused of a crime makes a general claim that someone else must have done it. Rather, here we have a burglary victim who twice misidentified Davis as the person he saw in his apartment. This fact provided Davis with the opportunity to attempt to prove that someone else, someone who looks a great deal like Davis, was burglarizing and robbing homes within the same general time frame. Indeed, the State originally charged Davis with the Hartwig burglary in the same complaint as the other burglaries. Consequently, this evidence was of great probative value. Thus, a proper Sullivan analysis would have shifted the balance in favor of admitting the evidence.

¶ 29. Finally, with respect to whether the State would have been prejudiced, the State argued that:

Here, the State would have been prejudiced by the injection of collateral testimony from Daniel H. relating to a dismissed burglary charge that was not being tried with the rest of the burglaries. The Daniel H. evidence would have spawned jury speculation about why the Daniel H. burglary was not being prosecuted at the same time, or caused an undue diversion by injecting the collateral - and confusing - issue of an unknown perpetrator of an unknown burglary that was not being submitted to the jury.

We disagree. This evidence would not have unfairly prejudiced the State.

¶ 30. There is little chance that this witness would have caused an undue diversion or would have confused the jury. The proposed witness's testimony went to the heart of the dispute. The State contended that Davis committed all the charged crimes. Davis claimed someone else committed them. Indeed, proof that a victim misidentified Davis and that Davis had previously been charged with burglary was significant in determining the identification issue. Moreover, while admitting this evidence may have changed the result of the trial, under our system of law, the State is charged with the duty of seeking justice, not simply obtaining convictions. Making sure that the truly guilty are convicted is tantamount to doing justice. We do not believe the State would have been unfairly prejudiced by the admission of this evidence, evidence that satisfied the Sullivan test and was the foundation of Davis's defense. Thus, the trial court erroneously exercised its discretion when it denied Davis's motion to call Hartwig as a witness. As a result, we are satisfied that the real controversy has not been fully tried, and we exercise our statutory right under Wis. Stat. § 752.35 to reverse the judgment of conviction and remand for a new trial.

By the Court. — Judgment and order reversed and cause remanded.

FINE, J.

¶ 31. (concurring). I fully join in the Majority opinion, except its discussion of Wis. Stat. Rule 904.04(2), which, in my view, has nothing to do with this appeal.

¶ 32. Wisconsin Stat. Rule 904.04 reads:

(1) CHARACTER evidence GENERALLY. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(a) Character of accused. Evidence of a pertinent trait of the accused's character offered by an accused, or by the prosecution to rebut the same;
(b) Character of victim. Except as provided in s. 972.11(2), evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09.
(2) OtheR CRIMES, WRONGS, OR acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, the rule permits, via subsection (2), the admission of evidence relating to "character" if its primary purpose is to prove something other than propensity. One of these other primary purposes is to prove the "identity" of the defendant as the person who committed the crime or crimes charged. See, e.g., State v. Speer, 176 Wis. 2d 1101, 1117, 501 N.W.2d 429, 434 (1993) ("To be admissible for the purpose of identity, similarities must exist between the 'other act' and the offense for which the defendant is being tried."); State v. Sullivan, 216 Wis. 2d 768, 786-787, 576 N.W.2d 30, 38-39 (1998) ("The stronger the similarity between the other acts and the charged offense, the greater will be the probability that the like result was not repeated by mere chance or coincidence. In other words, '[I]f a like occurrence takes place enough times, it can no longer be attributed to mere coincidence. Innocent intent will become improbable.'") (quoted source and footnote omitted).

¶ 33. When a defendant seeks to introduce other-acts evidence to show that someone else committed the charged crime or crimes, the pattern must show a sufficient similarity "between the other act evidence and the charged crime," so that the evidence tends to substantiate the defendant's contention, although when offered by the defendant rather than the State it need not rise to the level of establishing an " 'imprint' or 'signature.'" State v. Scheidell, 227 Wis. 2d 285, 304-305, 307, 595 N.W.2d 661, 671, 672 (1999) (applying "relevance" criterion discussed by Sullivan, 216 Wis. 2d at 785-787, 576 N.W.2d at 38-39). As the Majority recognizes in ¶ 28, however, "[t]his is not a situation where someone accused of a crime makes a general claim that someone else must have done it." (Emphasis added.) Indeed, as the Majority shows, the various crimes, including the one that victimized Daniel Hartwig, were not so similar to permit their joinder because the evidence of one or more would not be cross-admissible under Wis. Stat. Rule 904.04(2). See Francis v. State, 86 Wis. 2d 554, 559-561, 273 N.W.2d 310, 313-314 (1979) (similarity in modus operandi permits joinder because "[t]he evidence of each crime would be admissible at separate trials for each crime").

¶ 34. Thus, the "identity" aspect of Wis. Stat. Rule 904.04(2) and the Sullivan three-step approach do not come into play.

Rather, here we have a burglary victim who twice misidentified Davis as the person he saw in his apartment. This fact provided Davis with the opportunity to attempt to prove that someone else, someone who looks a great deal like Davis, was burglarizing and robbing homes within the same general time frame.

Majority, ¶ 28 (emphasis added). I agree. Davis was entitled to have the jury learn that there was someone who looked so much like him that Hartwig believed that person was Davis, even though that was impossible. This is not, however, a Rule 904.04(2) case.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       This burglary charge was dismissed before the jury trial.

       While the complaint was signed on March 4, 2001, the complaint was not filed until April 3, 2001. Davis does not contend that the mis-dating affected any of his rights. See State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222 (1985).

       There was only one six-man photo array shown to the victims, and only one lineup was held.