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    State of Wisconsin, Plaintiff-Respondent, v. Robert Jamont Wright, Defendant-Appellant.

    Court of Appeals

      No. 03-0238-CR.

      Submitted on briefs October 8, 2003.

      Decided November 26, 2003.

    2003 WI App 252
    (Also reported in 673 N.W.2d 386.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ann Auberry, of Rebholz & Auberry of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Edwin J. Hughes, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 2-24-04.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

   NETTESHEIM, J.

¶ 1. Robert Jamont Wright appeals from a judgment of conviction for eight counts of armed robbery and one count of attempted armed robbery, all as a habitual offender. Wright additionally appeals from a trial court order denying his motion for postconviction relief based on his claim of ineffective assistance of counsel. Wright was convicted following a six-day jury trial at which the State presented seventeen eyewitnesses who identified Wright as the robber.

¶ 2. Wright contends that his trial counsel was ineffective for failing to more timely secure an eyewitness identification expert and for failing to obtain a pretrial ruling as to the admissibility of testimony from Terrell Lomack, the victim of a further robbery who initially identified Wright as the perpetrator at a lineup, but later was unable to identify Wright at a preliminary hearing.

¶ 3. Apart from his claim of ineffective assistance of counsel, Wright argues that the trial court erred by excluding Lomack's testimony as improper impeachment of the identifications made by the State's various witnesses and improper "other acts" evidence that the Lomack robbery was committed by an unknown third party pursuant to State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999). In addition, Wright argues that the trial court erred by granting the State a continuance to prepare for Wright's expert on eyewitness identification. Finally, Wright asks that we order a new trial in the interests of justice.

¶ 4. We reject each of Wright’s challenges and affirm the judgment and order.

BACKGROUND

¶ 5. This case has a lengthy, but essentially undisputed, history. A string of armed robberies occurred in the city of Racine between May 8, and May 19, 2000. Wright was arrested as a suspect in the robberies on May 20, 2000, and participated in a lineup with five other individuals on May 23, 2000. Most of the victims identified Wright as the robber. As a result, the State filed a complaint charging Wright with nine counts of armed robbery with threat of force contrary to Wis. Stat. § 943.32(2) (2001-02), as a habitual offender pursuant to Wis. Stat. § 939.62.

¶ 6. At the preliminary hearing on July 31, 2000, Lomack, a victim of one of the robberies, failed to appear. Therefore, the magistrate did not find probable cause as to the Lomack count. As to the remaining eight counts, Wright was bound over for trial. Despite the magistrate's ruling that the State had not established probable cause as to the Lomack count, the Information alleged that count together with the other counts on which Wright had been bound over. In addition, the Information added a tenth count of armed robbery with threat of force and an eleventh count of attempted armed robbery with threat of force, both as a habitual offender.

¶ 7. In response, Wright moved to dismiss the Lomack count based on the magistrate's determination that the State had not established probable cause as to that count. The trial court granted this motion.

¶ 8. Wright additionally moved to suppress evidence obtained by the police on the day he was arrested. Specifically, Wright challenged the evidence obtained by the police prior to the execution of a warrant to search his apartment. Wright also challenged the evidence recovered pursuant to the warrant on grounds that it was issued without probable cause.

¶ 9. The following testimony was presented at the suppression hearing. Officer William Warmington arrested Wright on May 20, 2000, as Wright was leaving his residence. Warmington directed other officers to secure the residence pending the issuance of a search warrant. The officers who were securing the apartment entered it and detained three or four people who were inside. During the process of securing the apartment, a police officer observed a "Club anti-theft device in the bedroom still in the package" (the Club evidence). The package and price tag matched the description of a Club taken during one of the armed robberies with which Wright was charged. Warmington later returned to the residence with a search warrant and the officers carried out a search pursuant to the warrant.

¶ 10. At the close of the motion hearing, the trial court ruled that there was sufficient probable cause to support the warrant and denied Wright's motion to suppress with respect to the evidence seized as a result of the warrant. However, the trial court granted Wright's motion to suppress the Club evidence, which was seized before the warrant was executed.

¶ 11. The State responded with a motion for reconsideration under the "inevitable discovery" doctrine pursuant to State v. Lopez, 207 Wis. 2d 413, 559 N.W.2d 264 (Ct. App. 1996), arguing that the Club evidence would have been inevitably discovered when the lawfully issued search warrant was executed. On reconsideration, the trial court agreed with the State that the Club evidence was admissible under the "inevitable discovery" doctrine. Nonetheless, the court adhered to its ruling barring the Club evidence. The court based this ruling on two factors: (1) the timing of the State's motion — "slightly more than a week before trial," and (2) the State had not raised the "inevitable discovery" argument at the initial suppression hearing. Under these circumstances, the court held that the admission of the Club evidence would unduly and unfairly prejudice the defense.

¶ 12. Following the trial court's ruling, Wright's counsel addressed an unrelated matter pertaining to the Lomack count, which had previously been dismissed. Counsel informed the court that at another preliminary hearing the previous day, Lomack had been unable to identify Wright as the robber. In light of that development, counsel stated that she was reevaluating her initial decision not to use an eyewitness expert and she was trying to contact the expert. If she decided to use the expert, counsel informed the court and the State that she would provide the State with the expert's name the following Monday, January 8, 2001.

¶ 13. Keeping her word, Wright's counsel filed a witness list on January 8, 2001, listing Dr. Gregory Van Rybroek as Wright's eyewitness identification expert. This document further stated that Van Rybroek would "offer testimony about factors contributing to unreliability in eye-witness identifications" and listed certain factors Van Rybroek would address as they affect the reliability of both lineup and subsequent in-court identifications. In addition, the witness list included Lo-mack, the alleged victim in the count that the trial court had previously dismissed.

¶ 14. On January 12, 2001, the State filed a motion in limine to exclude Van Rybroek's expert testimony. The State argued that the expert testimony was "not outside the realm of ordinary experience and common knowledge and would not assist the jury" and that the testimony pertaining "to the correlation between the witness reporting a positive identification . . . and the actual accuracy of identification would invade the province of the jury by indirectly attacking the credibility of the witnesses."

¶ 15. The trial court addressed the State's motion on January 16, 2001, the opening day of the jury trial. The prosecutor stated that when he had contacted Van Rybroek the previous day, Van Rybroek was unable to state which scientific research he would rely on "because he would need to get information from the defense, look at the facts proposed to him for his review and then look to the research to assist him in forming his opinion." The State argued that Van Rybroek's response left them "at a loss as to [their] ability to obtain rebuttal expert testimony." In response, Wright's counsel explained that she had not, as yet, had Van Rybroek analyze Wright's case due to funding issues and the State's pending motion in limine to exclude Van Rybroek's testimony. Counsel also made an offer of proof as to Van Rybroek's testimony.

¶ 16. After a lengthy consideration of the matter, the trial court determined that Van Rybroek's testimony was relevant and admissible. However, given the late notice to the State, the court was concerned about the State's inability to timely prepare due to lack of knowledge as to the information and data on which Van Rybroek would rely and the State's further inability to retain a rebuttal expert at such a late date. In an attempt to alleviate this concern, the court adjourned the trial until the following day and ordered the defense to make Van Rybroek immediately available to the State for an interview.

¶ 17. When the parties reconvened the following day, the State informed the trial court that it had not received the articles upon which Van Rybroek would rely until earlier that morning at 8:15 a.m. As a sanction for the late revelation of Van Rybroek as a defense expert witness, the State asked the court to bar Van Rybroek's testimony. Alternatively, the State asked that the trial be adjourned.

¶ 18. In response, the trial court confirmed its prior ruling that Van Rybroek's proffered testimony was relevant to Wright's theory of defense and that Wright would be allowed to present the testimony. In addition, the court ruled that although Wright had not revealed Van Rybroek as a witness until shortly before trial, the delay was understandable since the decision to use Van Rybroek was triggered by Lomack's inability to identify Wright at the preliminary hearing, a development which had occurred only a few days earlier. However, because of the technical nature of Van Rybroek's proffered testimony and the State's inability to adequately prepare for the. testimony through no fault of its own, the court granted the State's alternative request for an adjournment of the trial. The court stated:

Based upon the court's underlying obligation here to assure as full and fair a trial as possible I really believe that I have little alternative but to grant a request by the [SJtate for an adjournment of the trial based upon it's representation that it cannot be prepared to adequately deal with Dr. Van Rybroek and his testimony under the circumstances that exist.

¶ 19. After this ruling, Wright conferred with his counsel. Following that consultation, Wright's counsel inquired whether the grant of the adjournment would affect the trial court's prior ruling barring the State from using the Club evidence. The trial court responded that its original ruling suppressing the Club evidence was based on Wright's inability to timely prepare a defense to the evidence. Since an adjournment would give Wright adequate time to prepare for the Club evidence, and since the evidence was otherwise admissible under the "inevitable discovery" doctrine, the court reasoned that there no longer was any basis to exclude the evidence. Faced with the admission of the Club evidence if the trial were adjourned or the loss of Van Rybroek's testimony if the trial went forward, Wright's counsel indicated that the defense would proceed to trial without Van Rybroek's testimony. The trial court confirmed this choice in a personal colloquy with Wright, explaining the implications of the choice. Wright confirmed that he wished to proceed to trial without Van Rybroek's testimony, and a six-day jury trial ensued.

¶ 20. The State's evidence against Wright included the testimony of seventeen eyewitnesses who identified Wright as the robber during each of the nine robberies and the one attempted robbery; videotaped images from surveillance cameras at three of the locations Wright allegedly robbed; clothing found in Wright's possession that matched witness accounts of what the offender was wearing during some of the robberies; testimony from a police officer that Wright had made incriminating statements to a former girlfriend; and an affidavit from the girlfriend detailing these statements.

¶ 21. Before the presentation of Wright's defense, the State objected to Lomack as a defense witness. As noted earlier, Lomack had identified Wright as the robber at the lineup, had failed to appear at the original preliminary hearing resulting in the dismissed of that count, and had failed to identify Wright at the subsequent preliminary hearing. Wright sought to introduce evidence of Lomack's failure to identify him. The State argued that Lomack's inability to identify Wright was irrelevant to the identifications made by the other eyewitnesses and did not impugn the integrity of the lineup procedure. The trial court agreed and barred Lomack's testimony.

¶ 22. Wright's counsel then proposed the admission of Lomack's testimony pursuant to State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999), as evidence of other acts committed by an unknown third party. The trial court also rejected Lomack's testimony on this basis, ruling that the evidence did not support a third-party theory.

¶ 23. The jury returned guilty verdicts on eight of the nine counts of armed robbery plus the count of attempted armed robbery. The trial court sentenced Wright to consecutive terms of six years' imprisonment on each of the eight counts of armed robbery. Each sentence consisted of three years of initial confinement followed by three years of extended supervision. Wright was additionally sentenced to a consecutive term of five years on the attempted armed robbery count with two years of initial confinement followed by three years of extended supervision.

¶ 24. On September 17, 2002, Wright filed a post-conviction motion pursuant to Wis. Stat. Rule 809.30, alleging that his trial counsel was ineffective. Specifically, Wright argued that counsel was deficient (1) in failing to secure Van Rybroek as an eyewitness identification expert in a more timely manner, and (2) in failing to seek and obtain a pretrial ruling on the admissibility of Lomack's testimony.

¶ 25. The trial court conducted a Machner hearing at which Wright's trial counsel, Diane Zitzner, and Wright's expert, Van Rybroek, testified. At the close of the hearing, the trial court concluded that trial counsel's failure to retain Van Rybroek prior to Lomack resurfacing as a potential defense witness and counsel's failure to obtain a pretrial ruling on the admissibility of Lomack's testimony did not constitute deficient performance. Accordingly, the court denied Wright's motion.

¶ 26. Wright appeals from the judgment of conviction and the postconviction order.

DISCUSSION

Ineffective Assistance of Counsel

¶ 27. Criminal defendants are constitutionally guaranteed the right to counsel under both the United States Constitution and the Wisconsin Constitution. U.S. Const. amends. VI, XIV; Wis. Const. art. I, § 7. See State v. Thiel, 2003 WI 111, ¶ 18, 264 Wis. 2d 571, 665 N.W.2d 305. The right to counsel includes the right to effective assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). In order to find that counsel rendered ineffective assistance, the defendant must show that trial counsel's representation was deficient. Thiel, 264 Wis. 2d 571, ¶ 18. The defendant must also show that he or she was prejudiced by the deficient performance. Id. The United States Supreme Court has stated that "there is no reason ... to address both components of the inquiry if the defendant makes an insufficient showing on one." State v. Weed, 2003 WI 85, ¶ 34, 263 Wis. 2d 434, 666 N.W.2d 485 (citing Strickland, 466 U.S. at 697).

¶ 28. Counsel's conduct is constitutionally deficient if it falls below an objective standard of reasonableness. Thiel, 264 Wis. 2d 571, ¶ 19. When evaluating counsel's performance, courts are to be "highly deferential" and must avoid the "distorting effects of hindsight." Id. (citation omitted). "Counsel need not be perfect, indeed not even very good, to be constitutionally adequate." Id. (citing State v. Williquette, 180 Wis. 2d 589, 605, 510 N.W.2d 708 (Ct. App. 1993), aff'd, 190 Wis. 2d 677, 526 N.W.2d 144 (1995)).

¶ 29. In order to demonstrate that counsel's deficient performance is constitutionally prejudicial, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thiel, 264 Wis. 2d 571, ¶ 20 (citing Strickland, 466 U.S. at 694). The focus of this inquiry is not on the outcome of the trial, but on "the reliability of the proceedings." Thiel, 264 Wis. 2d 571, ¶ 20 (citing State v. Pitsch, 124 Wis. 2d 628, 642, 369 N.W.2d 711 (1985)).

¶ 30. A claim of ineffective assistance of counsel presents a mixed question of law and fact. Thiel, 264 Wis. 2d 571, ¶ 21. This court will uphold the circuit court's findings of fact unless they are clearly erroneous. Id. Findings of fact include "the circumstances of the case and the counsel's conduct and strategy." Id. (citation omitted). Whether counsel's performance satisfies the constitutional standard for ineffective assistance of counsel is a question of law which we review de novo. Id.

Van Rybroek's Expert Testimony

¶ 31. Wright first argues that trial counsel was ineffective for failing to earlier retain Van Rybroek as an expert on eyewitness identification. Wright's reasoning is two-tiered: (1) if trial counsel had retained Van Rybroek early in the case, there would have been no need for the trial court to grant an adjournment to allow the State time to prepare; and (2) therefore, Wright would not have been faced with the dilemma of having to choose between defending against the Club evidence under the adjournment or foregoing Van Rybroek's expert testimony if the trial proceeded without the adjournment.

¶ 32. Trial counsel's testimony at the Machner hearing established the following. Counsel had originally considered using an eyewitness expert. However, counsel ultimately made the strategic decision to abandon that approach, believing that she could score many of the same points with the jury through cross-examination of the eyewitnesses. In fact, counsel had earlier challenged the lineup in a motion to suppress arguing that the lineup was suggestive. In preparation for that strategy, counsel had done significant research on identification issues.

¶ 33. Counsel changed her strategy and sought to use Van Rybroek as an expert witness only after Lo-mack resurfaced as a potential defense witness slightly more than one week before the trial following his inability to identify Wright at the January 4, 2001 preliminary hearing. Based on this development, counsel sought funding through the State Public Defender's Office and contacted Van Rybroek. Counsel determined that an expert such as Van Rybroek would be helpful as Lomack now provided a "concrete example of some of the concepts" surrounding eyewitness identification.

¶ 34. The trial court determined that trial counsel's initial decision not to retain an expert on eyewitness identification did not constitute deficient performance. The court found that counsel was experienced in criminal defense work and had conducted research of the law and related materials in the area of eyewitness identification and identification procedures used by law enforcement. The court stated that counsel did not overlook the prospect of hiring an expert, but instead reasoned that the mistaken identification defense "could be adequately presented and advanced without the utilization of an eye witness identification expert." The court additionally noted that counsel was presumably aware that the admissibility of expert testimony on eyewitness identification is uncertain. Certain cases have excluded the use of such experts. See State v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993); State v. Blair, 164 Wis. 2d 64, 473 N.W.2d 566 (Ct. App. 1991).

¶ 35. Wright's appellate argument rests largely on Van Rybroek's testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel's decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court's ruling that Van Rybroek's testimony was admissible under those changed circumstances. We assess the quality of counsel's performance by the standard of whether such performance was reasonable under the prevailing circumstances. See State v. Brewer, 195 Wis. 2d 295, 300, 536 N.W.2d 406 (Ct. App. 1995). Even if it appears in hindsight that another defense would have been more effective, counsel's strategic decision will be upheld as long as it is founded on rationality of fact and law. Id. We conclude that counsel's decision was appropriately founded and did not constitute deficient performance. Given the circumstances at the time, given trial counsel's experience, and given counsel's research in the area of eyewitness identification, we uphold the trial court's finding that counsel's decision to forego expert testimony in favor of impugning the eyewitness identifications on cross-examination was a reasonable strategy.

Lomack's Proffered Testimony

¶ 36. Wright next argues that trial counsel was ineffective for failing to seek and obtain a pretrial ruling via a motion in limine regarding the admissibility of Lomack's testimony once he resurfaced as a possible defense witness. Wright argues that had he known that Lomack's testimony would be barred, he would have opted for the adjournment and thereby had the benefit of Van Ryboeck's testimony.

¶ 37. The purpose of the motion in limine is to obtain an advance ruling on admissibility of certain evidence. State v. Horn, 139 Wis. 2d 473, 488 n.8, 407 N.W.2d 854 (1987). The use of the motion in limine has expanded from its original use for suppressing prejudicial evidence to obtaining a ruling on admissibility generally. Although the Wisconsin Statutes do not expressly recognize the motion in limine, we judicially notice that its use is common in this state and in many jurisdictions. See id.

¶ 38. Despite the expanded use of the motion in limine in current times, we agree with the trial court that trial counsel was not ineffective for failing to obtain a pretrial ruling regarding the admissibility of Lomack's expected testimony. Trial counsel testified that from the moment Lomack resurfaced as a potential witness, she believed his testimony was admissible. Therefore, she did not see the need for a motion in limine ruling. The trial court agreed, ruling that trial counsel's failure to obtain a pretrial ruling as to the admissibility of Lomack's testimony did not constitute deficient performance. The court found that trial counsel's decision was based on her experience and her understanding of the law and of the rules of evidence. Although the trial court ultimately ruled the testimony inadmissible, the court nonetheless stated, "there was nothing about it that seemed so questionable or nothing about it that raised a red flag that alerted her to the fact that it may be appropriate to seek a pretrial ruling." The court further stated, "[T]he fact that the court made a ruling adverse or contrary to what she reasonably believed would be the ruling does not mean that her judgment was deficient."

¶ 39. We agree. To hold otherwise would suggest that lawyers should seek pretrial rulings on all evidentiary issues that might inspire an objection at trial. As the trial court recognized, "It would be creating a situation where counsel at the peril of being accused of being ineffective would have to try their case to the court to find out what was going to come in before they tried it to a jury. [T]hat is not what the law requires."

¶ 40. While the following list is not exhaustive, we view a motion in limine as proper where (1) the trial court has directed that the evidentiary issue be resolved before trial; (2) the evidentiary material is highly prejudicial or inflammatory and would risk a mistrial if not previously addressed by the trial court, see id.; (3) the evidentiary issue is significant and unresolved under existing law; (4) the evidentiary issue involves a significant number of witnesses or a substantial volume of material making it more economical to have the issue resolved in advance of trial so as to save the time and resources of all concerned; or (5) a party does not wish to object to the evidence in the presence of the jury and thereby preserves the issue for appellate review by obtaining an unfavorable ruling via a pretrial motion in limine, see State v. Bergeron, 162 Wis. 2d 521, 528-29, 470 N.W.2d 322 (Ct. App. 1991). We do not view Lomack's proffered testimony as qualifying under any of these considerations. Therefore, counsel was not deficient for failing to obtain a pretrial ruling as to the admissibility of Lomack's testimony.

¶ 41. Even if we were to assume that trial counsel was ineffective, we hold that Wright was not prejudiced. Wright reasons that if counsel had obtained a pretrial ruling that Lomack's testimony was inadmissible, he would have opted for an adjournment of the trial, thereby obtaining the benefits of Van Rybroek's testimony. Wright's contention defies common sense and sound judgment. If Wright had opted for the adjournment, the State would have been allowed to use the Club evidence. As trial counsel aptly testified at the Machner hearing, this evidence would have been the "death knell" to Wright's defense since it directly linked him with one of the robberies. No reasonable jury would have favored Van Rybroek's expert testimony over the "smoking gun" Club evidence.

Trial Court Rulings

Exclusion of Lomack's Testimony

¶ 42. Apart from his claim of ineffective assistance of counsel, Wright directly challenges the trial court's exclusion of Lomack's testimony. Generally, a trial court's decision to admit or exclude evidence is a discretionary determination that will not be upset on appeal if it has a reasonable basis and was made in accordance with accepted legal standards and in accordance with the facts of record. State v. Miller, 2002 WI App 197, ¶ 44, 257 Wis. 2d 124, 650 N.W.2d 850, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sept. 26, 2002) (No. 01-1406-CR). However, where the focus of the claim is on the constitutional right of a defendant to present a defense, the issue is one of constitutional fact. Id.

¶ 43. Wright argues that Lomack's testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Wis. Stat. § 904.01. Here, Lomack's testimony was proffered for the purpose of describing the lineup and stating his belief that he had mistakenly identified Wright in the lineup. However, our examination of the Lomack offer of proof reveals nothing that impugns the integrity of either the lineup procedure or the in-court identifications by the State's eyewitnesses. In summary, without more, Lomack's inability to identify Wright at a preliminary hearing some eight months after he identified Wright at a lineup does not render the identifications of the other eyewitnesses suspect. We agree with the trial court that Lomack's testimony on the dismissed robbery charge as to the lineup procedure and his mistaken identification did not tend to make Wright's involvement in the other robberies, at which Lomack was not present, more or less probable.

¶ 44. Alternatively, Wright argues that Lomack's testimony was admissible as other acts evidence of a third-party perpetrator pursuant to Scheidell. Scheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity. Id. at 287. The supreme court set forth a three-step analytical framework to be applied when a defendant proffers such other acts evidence. Id. at 306. The first step is to determine whether the other acts evidence is offered for a permissible purpose under Wis. Stat. § 904.04(2), such as to establish motive, opportunity, plan, knowledge or identity. Scheidell, 227 Wis. 2d at 306. The second step is to determine whether the other acts evidence is relevant such that it relates to a fact or proposition that is of consequence to the determination of the action. The final step is to determine the probative value of the proffered testimony or its tendency to make a consequential fact more or less probable than it would be without the evidence. Id. at 307. The purpose of this test is to assure that the other acts evidence does more than raise conjecture or speculation. Id. at 305.

¶ 45. Wright's argument under Scheidell is a nonstarter. Without more, we hold that the mere inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime perforce takes the jury into the realm of conjecture or speculation. Unlike Scheidell, where the defendant sought to present evidence of a similar crime committed by an unknown third party while the defendant was in jail, id. at 291, Lomack's proffered testimony does not demonstrate that Wright was incapable of committing the similar crime. At the most, Lomack's proffered testimony merely shows that he could not identify Wright as the robber; it does not demonstrate that Wright could not have committed the offense. As such, Lomack's testimony does not tend to make a consequential fact more or less probable than it would be absent his testimony. See id. at 307. We agree with the State: "When there is a series of similar crimes, the fact that the State is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes." Lomack's testimony was not competent other acts evidence under Scheidell, and the trial court did not err in excluding it.

Grant of Adjournment

¶ 46. Wright next contends that the trial court erred in granting the State an adjournment in order to prepare for Van Rybroek's testimony. Wright bases his argument on the fact that he complied with the trial court's order directing him to supply the State with the names of his witnesses, including Van Rybroek, and the list of the topics about which Van Rybroek would testify. As such, Wright contends that the State was not entitled to a continuance pursuant to Wis. Stat. § 971.23(2m)(a) and (am).

¶ 47. Wisconsin Stat. § 971.23 governs discovery and inspection. It provides in relevant part:

(2m) What a defendant must disclose to the district attorney. Upon demand, the defendant or his or her attorney shall, within a reasonable time before trial, disclose to the district attorney and permit the district attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the defendant:
(a) A list of all witnesses, other than the defendant, whom the defendant intends to call at trial, together with their addresses. This paragraph does not apply to rebuttal witnesses or those called for impeachment only.
(am) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial.

¶ 48. Wright correctly observes that a continuance is a potential sanction pursuant to Wis. Stat. § 971.23(7m) for failing to comply with discovery. However, the record reflects that the trial court was not sanctioning the defense when it granted the State a continuance. Rather, the trial court expressly found that the circumstances were not the fault of either party — the defense had complied with disclosure and the State had made reasonable attempts to ascertain the substance of the expert's testimony. The trial court also noted the complexity of the expert testimony and the materials on which the expert would rely. In sum, the court's decision was expressly based on its "obligation ... to assure as full and fair a trial as possible."

¶ 49. A motion for continuance is directed to the sound discretion of the trial court whose ruling will not be reversed on appeal absent a clear showing of erroneous exercise of discretion. State v. Anastas, 107 Wis. 2d 270, 272, 320 N.W.2d 15 (Ct. App. 1982). In addition, Wis. Stat. § 906.11(1) mandates that the trial judge "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following: (a) make the interrogation and presentation effective for the ascertainment of the truth." (Emphasis added.) There is no set test for determining whether the trial court erroneously exercised its discretion. Rather, that determination must be made based upon the particular facts and circumstances of each individual case. Anastas, 107 Wis. 2d at 272-73.

¶ 50. We disagree with Wright that his compliance with the discovery provisions of Wis. Stat. § 971.23 trumped the trial court's ability to exercise its discretion to grant a continuance order if the circumstances otherwise called for such action. Such a holding would significantly curtail a trial court's ability to exercise the broad grant of superintending authority over the mode of the trial as conferred by Wis. Stat. § 906.11. Here, the revelation of Van Rybroek as a defense expert witness, although in compliance with § 971.23, nonetheless came at the eleventh hour before trial. Moreover, through no fault of its own, the State had not had an opportunity to review the underlying data upon which Van Rybroek's testimony would rely. Under those circumstances, the trial court was understandably concerned that the search for the truth might well be curtailed and an unfair trial might result. As such, the court properly exercised its discretion by granting a continuance to the State.

Reversal in the Interests of Justice

¶ 51. Finally, Wright requests this court to reverse his conviction in the interests of justice pursuant to Wis. Stat. § 752.35 because the real case or controversy was not fully tried. Wright argues that his defense was "gutted" by his inability to present Van Rybroek's expert testimony and by the trial court's ruling excluding Lomack's testimony. However, while this case was tried without Van Rybroek's testimony, it was also tried without the devastating "smoking gun" evidence represented by the Club evidence. We can hardly say that justice has miscarried under those circumstances. Further, in light of the State's evidence against Wright, including seventeen eyewitness identifications and statements from his former girlfriend stating that Wright acknowledged responsibility for at least four of the robberies, the exclusion of Wright's expert and Lomack's testimony does not undermine our confidence in the outcome of his trial.

CONCLUSION

¶ 52. We conclude that Wright did receive effective assistance of counsel. We further conclude that the trial court did not err in granting the State a continuance or in excluding Lomack's testimony. Finally, we reject Wright's request to reverse his conviction in the interests of justice.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version.

       Wright additionally filed a motion to sever the crimes or charges and a motion to suppress the eyewitness identifications. Wright withdrew his motion to sever the charges and the remaining motion was denied by the court and Wright does not appeal that ruling.

       The record is unclear as to how this further preliminary hearing regarding the Lomack count came about. At times, the appellate briefs refer to this preliminary hearing as an "adjourned" hearing. We fail to understand how the preliminary hearing could be adjourned when the magistrate found at the original preliminary hearing that the State had failed to establish probable cause and the trial court later dismissed the charge based upon that finding. A more likely explanation is that the State reissued the Lomack charge against Wright following the trial court's dismissal of that count and a second preliminary hearing ensued. Regardless, the parties do not dispute that a second preliminary hearing on the Lomack count did occur and that Lomack failed to identify Wright at that hearing.

       The document listed the following factors: (1) cross-racial identification, (2) identification after the witness has been exposed to pictures or other opportunities to view the suspect, (3) time between the initial contact with the suspect and later identification, (4) opportunity to view the suspect and length of contact, (5) focus of witness on another object such as a weapon, and (6) knowledge that the suspect is in the lineup.

       We note that these videotapes and articles of clothing are not included in the appellate record; however, Wright does not dispute their existence or the State's representation that they were introduced as evidence at trial.

       Before introducing the evidence concerning the statements and affidavit given by Wright's girlfriend, the State had called the girlfriend as a witness. During her testimony, she disavowed her affidavit and any knowledge of Wright's incriminating statements.

       We therefore need not reach Wright's argument that he was subsequently prejudiced by counsel's decision which "deprived him of the opportunity to utilize the expert's testimony and take advantage of a beneficial evidentiary ruling regarding the 'Club.'" See State v. Weed, 2003 Wl 85, ¶ 34, 263 Wis. 2d 434, 666 N.W.2d 485 (there is no reason to address both the deficient performance and prejudice components of the ineffective assistance of counsel inquiry if the defendant makes an insufficient showing of one).

       As noted, the continuance never came about because Wright responded by foregoing Van Rybroek's testimony.

       On a threshold basis, the State argues that Wright waived his right to challenge the adjournment on appeal because he did not raise his objection before the trial court. While we agree with the State, we nevertheless address the merits of the issue in rejecting Wright's challenge to the adjournment. See State v. Caban, 210 Wis. 2d 597, 609, 563 N.W.2d 501 (1997) (An appellate court has the power in the exercise of its discretion to consider issues raised for the first time on appeal.).


source: Caselaw Access Project

author: HIGGINBOTHAM, J. DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Leonard C. Matson, Defendant-Appellant.
    Court of Appeals

      No. 03-0251-CR.

      Submitted on briefs October 14, 2003.

      Decided November 26, 2003.

    2003 WI App 253
    (Also reported in 674 N.W.2d 51.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael Yovovich, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Alan Lee, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, EJ., Dykman and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. Leonard C. Matson appeals a judgment of conviction for child abduction and burglary, both as a repeat offender, and from an order denying his motion for postconviction relief. Matson argues that the investigating detective's letter to the sentencing court asking for the maximum sentence undermined the State's sentencing recommendation under the plea agreement. We agree and reverse the judgment and order and remand with directions.

FACTS

¶ 2. The relevant facts are not in dispute. On September 7, 2001, Matson entered a negotiated plea of guilty to abduction of a child and to burglary, both as a habitual offender, in violation of Wis. Stat. §§ 948.30(l)(a), 943.10(l)(a) and 939.62(l)(c) (2001-02). In exchange for the guilty plea, the State reduced the severity of the child abduction charge and dismissed a misdemeanor theft charge. In addition, the plea agreement provided that "at the time of sentencing the State and the defense will jointly recommend to the Court a 10-year term of confinement and 15 years of extended supervision on each of the two counts to run concurrent with one another." This joint agreement was later clarified by both the State and defense counsel, with Matson's approval, that the joint recommendation was for ten years' confinement, with ten years of extended supervision on one count and fifteen years' consecutive probation on the second count.

¶ 3. Approximately one month after the plea hearing but prior to sentencing, City of Janesville police detective Martin E. Alstadt wrote a detailed letter to the sentencing judge, on police department stationary. Alstadt was "directly involved in the investigation of this case." Alstadt's five-page letter explained why he disagreed with the plea agreement and ended by stating, "Therefore, despite the joint recommendation for 10 years prison and 15 years probation, I request maximum sentencing on all charges, to ensure the protection of our community." On October 12, 2001, shortly after the letter was provided to the court, the Wisconsin State Journal reported that the lead detective on the case had asked the judge "to throw out a proposed sentencing recommendation and send the defendant to prison for the maximum time."

¶ 4. On October 9, 2001, Matson filed a motion to exclude the letter from the circuit court's sentencing decision. A hearing on this motion was held a month prior to sentencing. At this hearing, Janesville Police Chief George D. Brunner testified he allowed Alstadt to send the letter on police department stationary because Alstadt had told him and others that the chief judge had approved of sending the letter.

¶ 5. Alstadt testified he had telephoned the chief judge and asked if a citizen could send a letter to a judge in a criminal case. According to Alstadt, the chief judge was "aware" Alstadt intended to send the letter but Alstadt did not inform the chief judge the letter would be sent on police department letterhead. Alstadt did not consult with the district attorney's office about the letter.

¶ 6. A letter from the chief judge was introduced at the hearing. A summary of the letter by the district attorney established that the chief judge had, in fact, talked with Alstadt and "the tenor of the conversation . . . was that [Alstadt] had asked him whether or not a citizen could send a letter in the matter, but never, in fact, identified that he was the citizen that intended to send the letter."

¶ 7. Matson asked the circuit court to disregard the letter and not consider it "in any manner." Matson argued that the letter was, in essence, a breach of the plea agreement. However, Matson did not ask to withdraw his plea but asked only that the letter not be considered for sentencing purposes. The district attorney conceded the letter was a breach of the plea agreement as the letter was "clearly a representation made by a representative of the state". The district attorney did not oppose Matson's motion and agreed that the circuit court should not consider the letter.

¶ 8. The circuit court admitted that it had read the letter but not "seriously." The circuit court had also forwarded the letter to the presentence investigation writer who, in the court's view, was the court's "filter to assess and evaluate what anybody tells the agent, including this letter . .. ." The circuit court noted that it would consider the letter "insofar as it is given to me through the Department of Corrections." Matson objected to this procedure.

¶ 9. The State and Matson made their joint recommendation at sentencing. The PSI report recommended the maximum sentence on the abduction conviction and five years less than the maximum on the burglary conviction, to be served consecutively. Matson submitted his own presentence memorandum that purported to correct some inaccuracies in the PSI and also discussed Alstadt's letter.

¶ 10. The circuit court asked Matson's attorney if he thought his concerns about the PSI were "sufficiently served by permitting you to furnish the Court with the Sentencing Memorandum you have given me, and then to argue from that?" Matson's trial defense counsel responded "Your Honor, I do, because I have also submitted material in support of the Memorandum ... and why the Department's Presentence is of no value to the Court in rendering a decision today." Defense counsel argued that the PSI was an attempt "to justify the opinions of somebody else who has already written to the Court and asked the Court for a certain sentence."

¶ 11. After hearing from the parties and the parents of the victim, the circuit court sentenced Matson to the maximum twenty-five year sentence on the abduction charge, with eighteen years and nine months of confinement and six years three months of extended supervision. On the burglary conviction, the court imposed a consecutive fifteen-year probationary term.

¶ 12. Matson filed a postconviction motion, arguing that the circuit court could not insulate itself from the broken plea bargain by filtering the improper information through the presentence writer. Matson argued that the neutrality of the presentence writer was undermined by the circuit court directing him to consider the improper letter. Matson requested in his postconviction motion resentencing before a different judge with a new presentence report. The circuit court denied Matson's motion. Matson appeals.

DISCUSSION

¶ 13. Matson argues his due process rights were violated when Alstadt, the investigating detective in this case, gave a sentencing recommendation that undermined the State's recommendation, in effect, breaching the plea agreement. The State counters that Alstadt was not a party to the plea agreement and thus his letter did not violate Matson's due process rights. We agree with Matson that Alstadt's letter constituted a breach of the plea agreement.

¶ 14. The parties do not point to any Wisconsin authority that directly addresses the issue before us, whether a letter to the sentencing court from the investigating officer of a criminal matter asking for a prison sentence greater than that agreed to in the plea bargain constitutes a violation of the plea bargain. We first set out the fundamental principles underlying plea agreements. We next turn to cases in other jurisdictions that have addressed this particular issue. Finally, we draw our own conclusion for the case before us.

¶ 15. The terms of a plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact. State v. Howland, 2003 WI App 104, ¶ 24, 264 Wis. 2d 279, 663 N.W.2d 340. We review the circuit court's findings of fact under the clearly erroneous standard of review. Id. However, whether the State's conduct constitutes a breach of the plea agreement and whether the breach is material and substantial are questions of law. Id. We determine questions of law independently of the circuit court. Id. The determination of law whether a breach occurred and whether the breach was substantial and material requires a careful examination of the facts. Id. at ¶ 27.

¶ 16. An accused has a constitutional right to the enforcement of a negotiated plea agreement. Id. at ¶ 25. Consequently, once an accused agrees to plead guilty in reliance upon a prosecutor's promise to perform a future act, the accused's due process rights demand fulfillment of the bargain. Id. A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. Id.

¶ 17. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. Id. at ¶ 26. When the breach is material and substantial, an accused may be entitled to resentencing. Id. A material and substantial breach is a violation of the terms of the agreement that defeats the benefit for which the accused bargained. Id. "End runs" around a plea agreement are prohibited. Id. "The State may not accomplish by indirect means what it promised not to do directly, and it may not covertly convey to the trial court that a more severe sentence is warranted than that recommended." Id. (citation omitted). We now examine the cases addressing the issue before us.

¶ 18. The Arizona Supreme Court has held that when a plea agreement refers to the State, the parties mutually intend to use that term in reference to the prosecutorial branch of the State. Therefore, an investigating officer's report suggesting a lengthy sentence is not a breach of the plea agreement. State v. Rogel, 568 P.2d 421, 423 (Ariz. 1977). An investigating officer's recommendation that a Utah defendant be imprisoned was also held to not violate a prosecutor's agreement to recommend probation because "public policy requires a plea agreement reached by a prosecutor not to be binding on other state agencies." State v. Thurston, 781 P.2d 1296, 1300 (Utah Ct. App. 1989).

¶ 19. The Montana Supreme Court has held that a plea agreement is not breached when a probation officer recommends a sentence different from that contained in the plea agreement. State v. Milinovich, 812 P.2d 338, 340 (Mont. 1991). The Milinovich court reasoned that the probation officer's recommendation was part of a statutorily authorized presentence investigation report. Id. However, a later dissent in another Montana case concluded that a prosecutor's recommendation is rendered meaningless when another state agent makes a contrary recommendation that the trial court is likely to take more seriously. State v. Bowley, 938 P.2d 592, 601 (Mont. 1997) (Trieweiler, J., dissenting). The Washington Supreme Court has also determined that the only parties to a plea agreement are the prosecutor and the defendant; neither an investigating officer nor a community corrections officer is bound by the plea agreement. State v. Sanchez, 46 P.3d 774, 775 (Wash. 2002). Nevertheless, two justices strongly disagreed that an investigating law enforcement officer should not be bound by a prosecutor's plea agreement. See id. at 783-84 (Chambers, J., concurring in part and dissenting in part, and Madsen, J., dissenting).

¶ 20. , The Florida Supreme Court has determined, however, that a prosecutor's plea bargain binds all state agents. The court addressed whether a promise contained in a plea agreement that the "State" will recommend a given sentence binds only the prosecutor's office or whether it also precludes other state agents, such as law enforcement officers, from making sentencing recommendations contrary to the terms of the agreements. See Lee v. State, 501 So.2d 591, 592 (Fla. 1987). In Lee, the plea agreement provided that the State would recommend probation but a law enforcement agent's recommendation of incarceration was included in the presentence investigation report. See Lee, 501 So.2d at 592-93.

¶ 21. The conclusion in Florida is similar to the position of the federal courts, which have held that absent an express limitation on the government's obligations, a plea agreement entered on behalf of the government by one assistant attorney general binds another assistant attorney general because "[t]he [federal] prosecutor's office is an entity and as such it is the spokesman for the Government." Giglio v. United States, 405 U.S. 150, 154 (1972). When determining whether a plea agreement binds the government as a whole or a specific agency, the federal courts "examine what the defendant reasonably understood when the plea was entered." Allen v. Hadden, 57 F.3d 1529, 1535 (10th Cir. 1995). Federal courts have held that a plea agreement entered on behalf of the government binds the government as a whole absent an express limitation on the government's obligations. Id.

¶ 22. There is no doubt that had the letter in this case been written, or the sentiments contained therein uttered, by the district attorney's office, a breach of the plea agreement would have occurred. The question before us is whether a letter from the chief investigating officer in this matter, written on police department letterhead and in his capacity as the investigating officer, constitutes a breach of the plea agreement. We conclude that it does. We are persuaded by the reasoning of the Florida Supreme Court in Lee and the policy reasons set forth in the Washington Supreme Court dissents in Sanchez and we herein adopt them as our own.

¶ 23. Because an investigative officer is the investigating arm of the prosecutor's office, principles of fairness and agency require us to bind the investigating officer to the prosecutor's bargain. When a defendant pleads guilty to a crime, he waives significant rights, including the right to a jury trial, the right to confront his accusers, the right to present witnesses in his defense, the right to remain silent and the right to have the charges against him proved beyond a reasonable doubt. If the guilty plea is part of a plea bargain, the State is obligated to comply with any promises it makes. When a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

¶ 24. The cases cited by the State, both from within and outside of Wisconsin, generally deal with probation or parole officers providing statements or sentencing recommendations in the context of a presentence report and are easily distinguishable. A probation or parole officer preparing a presentence report functions as an agent of the court, acting on behalf of an independent judiciary. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990). The preparer of the presentence report is to be a neutral and independent participant in the sentencing process. Id. See also Farrar v. State, 52 Wis. 2d 651, 657-58, 191 N.W.2d 214 (1971). The State relies on Farrar as controlling here but we conclude the State's reliance on Farrar is misplaced. The issue in Farrar was whether a parole agent writing a presentence report was a party to the plea bargain. The court's discussion, as quoted in the State's brief, regarding examples of who is not part of the plea bargain process is dicta. "A dictum is a statement not addressed to the question before the court or necessary for its decision," American Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984), and we are not bound by statements that are dicta. Id. We determine that the specific question presented here is an issue of first impression in Wisconsin.

¶ 25. Investigating officers are so integral to the prosecutorial effort that to permit one to undercut a plea agreement would, in effect, permit the State to breach its promise. If the prosecutor is obligated to comply with plea bargain promises, then the prosecutor's investigating officers may not undercut those promises by making inconsistent recommendations. We conclude that statements of the investigating officer for purposes of the sentencing hearing are the statements of the prosecutor. A prosecutor may not undercut a plea agreement directly or by words or conduct. Nor may he do so by proxy. "The State may not accomplish by indirect means what it promised not to do directly. . . ." State v. Williams, 2002 WI 1, 42, 249 Wis. 2d 492, 637 N.W.2d 733 (citation omitted).

¶ 26. In other contexts, we have imputed the actions of law enforcement to the district attorney's office. In terms of discovery, the State is charged with knowledge of material and information in the possession and control of others who have participated in the investigation and evaluation of the case. State v. DeLao, 2002 WI 49, 24, 252 Wis. 2d 289, 643 N.W.2d 480. Unconstitutional searches and seizures by law enforcement officers can result in suppression of evidence or even dismissal of a prosecutors charges. See State v. Johnson, 177 Wis. 2d 224, 231, 501 N.W.2d 876 (Ct. App. 1993), and State v. Washington, 120 Wis. 2d 654, 666-67, 358 N.W.2d 304 (Ct. App. 1984). We conclude the same here. The law enforcement officer's letter, written as the chief investigative officer of this criminal matter and on police department letterhead, constituted a breach of the plea agreement.

¶ 27. We acknowledge that circuit courts are not rubber stamps and do not blindly accept or adopt sentencing recommendations from any particular source. State v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990). However, it matters not what sentence the circuit court would have imposed in the absence of Alstadt's letter; the letter constituted a material and substantial breach of the plea agreement. Prejudice is presumed and always results from such a manifest injustice. State v. Smith, 207 Wis. 2d 258, 281, 558 N.W.2d 379 (1997). Our conclusion precludes any need to consider what the sentencing judge would have done had the breach not occurred. Id.

¶ 28. The State counters that Matson has waived any objection to the content of the PSI report by submitting his own sentencing memorandum countering the Department of Correction's PSI. We disagree.

¶ 29. Once aware of Alstadt's letter, Matson immediately filed a motion to exclude the letter from the circuit court's sentencing decision. At the hearing on this motion, Matson asked the circuit court to disregard the letter and not consider it "in any manner," arguing that the letter was a breach of the plea agreement. The district attorney did not oppose Matson's motion and agreed that the circuit court should not consider the letter.

¶ 30. However, the circuit court declared that it would consider the letter "insofar as it is given to me through the Department of Corrections" and the PSI report. Again, Matson unsuccessfully objected to this procedure. At sentencing, Matson presented his own presentence memorandum and objected to the presentence writer's reliance on the detective's letter in reaching a sentencing recommendation. Matson then filed a postconviction motion arguing that the circuit court could not insulate itself from the broken plea bargain by filtering the improper information through the presentence writer and requesting resentencing before a different judge with a new presentence report. This motion was denied.

¶ 31. The State hinges its waiver argument upon the fact that Matson submitted his own sentencing memorandum and when asked by the circuit court if he (Matson's defense counsel) thought his concerns about the PSI were "sufficiently served by permitting you to furnish the Court with the Sentencing Memorandum you have given me, and then to argue from that?", Matson's trial defense counsel responded 'Your Honor, I do, because I have also submitted material in support of the Memorandum . . . and why the Department's Presentence is of no value to the Court in rendering a decision today." Defense counsel further argued that the PSI was an attempt "to justify the opinions of somebody else who has already written to the Court and asked the Court for a certain sentence."

¶ 32. Matson sufficiently preserved his objections to the letter for appeal. His counsel made numerous unsuccessful objections to the circuit court's decision to consider the letter. Counsel need not object when the point at issue is one on which the court has just ruled adversely. Schueler v. City of Madison, 49 Wis. 2d 695, 707, 183 N.W.2d 116 (1971). Matson had already objected to the circuit court's use of the police officer's letter and his objections were unequivocally denied. Further objections would most certainly have proved futile. Submitting the sentencing memorandum was merely a tactical way to contend with the circuit court's decision and cannot be considered waiver of the issue.

CONCLUSION

¶ 33. Here, as he did before the circuit court, Matson seeks not to withdraw his plea, which is one remedy for a breach of a plea agreement. Santobello v. New York, 404 U.S. 257, 263 (1971). Matson instead seeks specific performance, a new sentencing by a different judge with a new presentence report. While the choice of remedy is not up to the defendant, if a defendant seeks only specific performance, we can simply order resentencing by a different judge. State v. Howard, 2001 WI App 137, ¶ 37, 246 Wis. 2d 475, 630 N.W.2d 244. The less extreme remedy of specific performance is always preferred. Id.

¶ 34. A new circuit court judge should conduct Matson's resentencing. Furthermore, to avoid any further taint in the case, we also conclude that a new presentence investigation should be conducted, without consideration of detective Alstadt's letter, and a new report completed by an agent from another county. See Howland, 264 Wis.2d 279, ¶ 38.

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

DYKMAN, J.

¶ 35. (dissenting). The problem requiring a remand for re-sentencing arose at Matson's sentencing hearing. The trial judge used a format for the hearing in which it outlined the plea agreement, the maximum sentences for the crimes to which Matson pled guilty, and inquired into inaccuracies in the presentence report. After correcting inaccuracies, the court asked the State and Matson: "Is that all a correct summary?" Matson's attorney replied, "That's all correct, your honor . . . ." The court then asked: "Are you asking for any other remedies?" Matson's attorney said, "There are a couple other matters that need to be considered as incorrect." The court heard those matters and disposed of them, noting: "I will consider the corrections that have now been made."

¶ 36. The court next heard from victims, and a witness supporting Matson. Matson's attorney was then given an opportunity to speak. He began by noting that the letter from the Janesville Police Department was, in his view, an attempt to usurp the job of the district attorney. He was aware that at a previous hearing, the trial judge had concluded that he would use a presentence report which included references to the letter. But he wanted the trial judge to reconsider.

¶ 37. The trial judge asked the dispositive question directly: "[M]y question is, do you believe that your remedies are sufficiently served by permitting you to furnish the Court with the Sentencing Memorandum you have given me, and then to argue from that?"

¶ 38. Matson's attorney had a decision to make. He could answer "no," and reiterate his argument that the only remedy for a breach of the plea agreement was a sentencing before a different judge, using a presentence report which did not mention the offending letter. The parties had previously discussed this letter as an appellate issue, and the trial court might have concluded that the best solution was to do as Matson's attorney requested.

¶ 39. But Matson's attorney answered:

Your Honor, I do, because I have also submitted material in support of the Memorandum, including a police report from the Janesville Police Department from 1991, which I will address when the opportunity is afforded me, and about what type of sentence it should be, and why the Department's Presentence is of no value to the Court in rendering a decision today.

¶ 40. The choice was clear. Should Matson stand on his belief that the letter was a breach of the plea agreement or should he use the other material he had obtained to show that the letter should be ignored? Matson's attorney made the latter choice.

¶ 41. Waiver is the intentional relinquishment of a known right. State v. Huebner, 2000 WI 59, n.2, 235 Wis. 2d 486, 611 N.W.2d 727. The trial court knew this, and at a postconviction motion hearing explained to Matson:

And at the time of sentencing, I asked Counsel for the defendant, clearly, if there were any remedies that Counsel for the defendant wanted to use with respect to the differences of opinion with the Sentencing Memorandum, and I was told by Counsel that — first, I did hear from both Mr. O'Leary [the district attorney] and from Mr. Hoag [defense counsel], and I obtained the Sentencing Memorandum of Defense Counsel, and I adjusted and made the corrections that were agreed to. Mr. O'Leary had some comments as well that did not adhere to the Sentencing Memorandum of the Defense. Counsel for the Defense told me that those remedies were sufficient. And I find that when you tell a sentencing judge that the remedies are sufficient, that effectively, that is a waiver from at a later date raising the issue that you are raising now.

¶ 42. The practice of agreeing to something in the trial court and then arguing on appeal that a judge's reliance on that agreement was error is called "sandbagging." The problem with sandbagging is that if trial judges are given a choice between decisions, they can consider the law and the facts, and come up with a decision that is often correct, precluding an appeal on that issue. But when a litigant agrees that a trial judge's solution to a problem is acceptable, and then claims error in that solution on appeal, the opportunity for a correct solution to the problem is lost. Appellate courts usually disapprove of that procedure. State v. Mikkelson, 2002 WI App 152, ¶ 14, 256 Wis. 2d 132, 647 N.W.2d 421.

¶ 43. I conclude that Matson waived the right to assert now that the trial court erred by refusing to transfer this case to another judge for sentencing with a new presentence report. Therefore, I would not reach that issue. I would affirm. Accordingly, I respectfully dissent.

       The dissent characterizes Matson's appeal on this issue as "sandbagging" the circuit court judge. Reasonable people can disagree reviewing the same information. We are not persuaded that Matson was trying to pull a fast one on the circuit court judge. We are satisfied that Matson made every reasonable effort to preserve his objection to the court's consideration of the detective's letter. In any event, waiver is "a rule of judicial administration which we may, in the proper exercise of our discretion, choose not to employ." Wisconsin Dep't of Revenue v. Mark, 168 Wis. 2d 288, 293 n.3, 483 N.W.2d 302 (Ct. App. 1992).


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Virgil L. Burks, Defendant-Respondent.

    Court of Appeals

      No. 03-0472-CR.

      Submitted on briefs November 4, 2003.

      Decided December 2, 2003.

    2004 WI App 14
    (Also reported in 674 N.W.2d 640.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James R. Lucius of James Lucius Law Office, Greenfield.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 3-23-04.

   FINE, J.

¶ 1. The State of Wisconsin appeals from a postconviction circuit-court order granting a new trial to Virgil L. Burks. Burks shot a police officer, and a jury convicted him of attempted first-degree intentional homicide while using a dangerous weapon. See Wis. Stat. §§ 940.01(1)(a), 939.32(1)(a), 939.63. Before the trial, Burks tried to waive his right to a jury. The State consented. The trial court, however, refused to approve. We reverse the postconviction order.

I.

¶ 2. The right of a criminal defendant to a trial by jury is guaranteed by both the Sixth Amendment to the United States Constitution, as made applicable to the states by Section 1 of the Fourteenth Amendment, see Parker v. Gladden, 385 U.S. 363, 364 (1966) (per curiam), and article 1, section 7 of the Wisconsin Constitution. The Sixth Amendment provides, as material here: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Article 1, section 7 of the Wisconsin Constitution is similar and, as material here, provides: "In all criminal prosecutions the accused shall enjoy the right... to a speedy public trial by an impartial jury."

¶ 3. Although not specifically permitted by article 1, section 7 of the Wisconsin Constitution, the legislature has granted to defendants a limited right to relinquish a trial by jury.

Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2) (b), on the record, with the approval of the court and the consent of the state.

Wis, Stat. § 972.02(1).

II.

¶ 4. As noted, Burks sought to waive his jury-trial right. At the hearing in open court, his lawyer gave three reasons underlying what the lawyer characterized as his "strategy" or "rationale." First, the lawyer said that he was afraid that the jury might be unduly sympathetic toward the State because the victim was a police officer, and that judges sitting as fact-finders were "somewhat more insulated and immune from the type of sympathies that would potentially sway the jury." The lawyer explained that he was concerned that the jurors' sympathy would be heightened because the trial would be held within months of the September 11, 2001, terrorist destruction of the World Trade Center.

¶ 5. Second, the lawyer indicated that he believed, given the publicity surrounding the case, that the judge, "would not be influenced in any way by community sentiment or sympathy in terms of deciding the facts and reaching a verdict." Third, the lawyer opined that the judge would be better able to assess evidence admitted subject to connection:

I explained to Mr. Burks that in my experience trials to the court, while not obviously, and hopefully never dispensing with the strict application of the rules of evidence, courts are more willing usually to let parties at least make offers of proof and to consider evidence. I mean judges oftentimes say that, you know, might not ever let a jury hear that [the prosecutor, the defense lawyer], but I'll hear it and then I'll decide ultimately when it comes time to whether or not I am going to consider that evidence, but I will let it in for now, you can't do that with a jury. There is a lot of evidence like that that I think works potentially in Mr. Burks' favor, and we discussed that as well.

The State consented to Burks's request.

¶ 6. In not approving Burks's attempt to waive his right to a jury trial, the trial court focused on what it believed was likely to be the core issue of whether Burks intended to kill the police officer when he shot him. The trial court explained why it believed that the case should be tried by a jury: "[A]ssesment of a person's intent is something which is quintessentially suited for a jury of 12 citizens. The virtue that the jury brings to our courtroom is that they carry with them the communal assessment of the ethics and standards from our community." The trial court assured the parties that it would preserve their rights to a fair trial:

I'll be careful in supervising this trial to assure that inadmissible evidence is not improperly suggested to the jury.
I will be careful to assure that inflammatory evidence which are [sic] designed to appeal to the passions and prejudices of the jury is not presented.
I will be careful during the voir dire to assure that we pick 12 jurors and an alternate who can be indifferent to the issues in the case and approach their responsibilities as jurors, jurors with an open mind that is impartial.

(Footnote added.) The parties sought reconsideration of the trial court's decision to not approve Burks's request to waive his jury-trial right. The trial court denied the reconsideration motion in a written memorandum. The memorandum explained: "Under section 972.02(1) a judge is not obligated to approve a jury waiver simply because both sides insist on waiving a jury. This construction of section 972.02(1) would eliminate any requirement that a judge approve the jury waiver." As we see below, although our review of the trial court's legal analysis is de novo, we agree.

¶ 7. The postconviction court disagreed with the trial court's assessment of the law, and viewed the trial court's "approval" role under Wis. Stat. § 972.02(1) as essentially limited to assuring that the defendant's waiver of the jury-trial right was knowing and voluntary. Moreover, the postconviction court opined that the trial court's core reason for denying Burks's request, in face of what the postconviction court characterized as the State's "strong[ ]" consent, namely that a jury would be better able to assess Burks's intent when he shot the police officer, was "an insufficient finding and does not justify a denial of a jury waiver in this case." Finally, the postconviction court opined that it appeared from the affidavits submitted to it and the records of the circuit court in Milwaukee County that the trial court had a "past pattern of behavior in refusing almost all requests for waiver of trial by jury," and pointed to the trial judge's comment in a different case that he " 'generally [does not] accept jury trial waivers'" because " T think that a right to a jury trial is an important right.'"

¶ 8. The postconviction court granted to Burks the relief he sought, and summed-up its reasons in an oral decision:

At best, Judge Crawford — at best, Judge Crawford failed to exercise judicial — his judicial discretion whatsoever. At worst, he abused his discretion in denying the jury waiver at the request of the defense and the state.
Based upon Judge Crawford's routine policy of automatically denying jury trial waivers, except in the six cases I discussed which I find almost meaningless, and the inadequate record he made in this case, this court has no choice but to grant the defendant's motion for a new trial to the court.

III.

¶ 9. The scope of a trial court's authority to reject a request by a defendant in a criminal case to waive his or her right to a jury trial presents an issue of law that we decide de novo. State v. Cook, 141 Wis. 2d 42, 44, 413 N.W.2d 647, 649 (Ct. App. 1987). Although the right of a defendant in a criminal case to be tried by an impartial jury is well-entrenched in both the federal and state constitutions, a defendant does not have a reciprocal constitutional right to waive a jury and be tried by a judge. Singer v. United States, 380 U.S. 24, 26-34 (1965) (federal constitution; recounting common-law history); Cook, 141 Wis. 2d at 44, 413 N.W.2d at 648 (state constitution). Wisconsin Stat. § 972.02(1) was patterned after Rule 23(a) of the Federal Rules of Criminal Procedure: "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." Cook, 141 Wis. 2d at 44-45 & 45 n.1, 413 N.W.2d at 649 & 649 n.1. Singer held that Rule 23(a) passed federal constitutional muster, 380 U.S. at 34-38; Cook held that § 972.02(1) was also valid, 141 Wis. 2d at 44-48, 413 N.W.2d at 649-650.

¶ 10. Both Singer and Cook concerned cases where the prosecution refused to give its consent to the defendant's jury-trial waiver, Singer, 380 U.S. at 25; Cook, 141 Wis. 2d at 43, 413 N.W.2d at 648; neither case involved a trial court's refusal to give its approval. Nevertheless, the rationale of both cases leads us to conclude that the trial court's "approval" of a defendant's jury-trial waiver under Wis. Stat. § 972.02(1) is not the quasi-ministerial rubber-stamping of the parties' request that the postconviction court assumed. Rather, as we explain below, like the prosecution's decision to withhold consent to a defendant's request to waive his or her right to a jury trial, the trial court also need not explain its decision to withhold its approval, and absent extraordinary circumstances not present here, its decision to withhold approval, like the prosecution's decision to withhold consent, is not reviewable.

¶ 11. First, it is established that in Wisconsin a prosecutor's decision to withhold consent to a defendant's requested waiver of his or her right to a jury trial is not reviewable because, absent extraordinary circumstances, the courts have no authority to compel that consent. Cook, 141 Wis. 2d at 43-46, 413 N.W.2d at 648-649. Moreover, the State need not "justify its refusal" to consent to a defendant's jury-trial waiver. Id., 141 Wis. 2d at 44-46, 413 N.W.2d at 648-649; see also Singer, 380 U.S. at 37 ("Rule 23(a) does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant's proffered waiver."). That is because, again in the absence of extraordinary circumstances not present here, the prosecutor's refusal to consent cannot possibly harm the defendant:

In light of the Constitution's emphasis on jury trial [sic], we find it difficult to understand how the [defendant] can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this [jury-trial] right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.

Singer, 380 U.S. at 36 (quoted in part with approval and relied on by Cook, 141 Wis. 2d at 45, 413 N.W.2d at 649).

¶ 12. Second, it would be anomalous indeed to excuse the prosecution from having to explain its decision to withhold consent, as both Cook and Singer do, but require the trial court to explain its decision to withhold approval. Indeed, there is nothing in the text of Wis. Stat. § 972.02(1) that requires either the State or the trial court to either assess the merits of the defendant's proffered jury-trial waiver or to give a reason for withholding either "consent" or "approval." Just as Singer was loathe to "assume that federal prosecutors would demand a jury trial for an ignoble purpose," 380 U.S. at 37, we will not assume that trial judges in this state would withhold approval for an "ignoble purpose." Certainly, the trial court's refusal to approve Burks's proffered jury-trial waiver was not "ignoble." Thus, we reject People v. Duchin, 229 N.Y.S.2d 46, 48-50 (App. Div. 1962), upon which the postconviction court relied, which reversed a criminal conviction and ordered a new trial merely because the trial judge denied the defendant's request for a bench trial without giving any reason.

¶ 13. Third, as noted, the postconviction court relied in significant measure on what it perceived as the trial court's general practice of refusing to approve of jury-trial waivers, and relied on a statement in Patton v. United States, 281 U.S. 276, 312-313 (1930), criticized on other grounds, Williams v. Florida, 399 U.S. 78, 92 n.30 (1970), that a trial court should not act by mere "rote." Patton, which held that a defendant could — that is, has the legal right to — elect to be tried by a jury of eleven if one juror becomes indisposed after the trial starts, made the following observation:

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

281 U.S. at 312-313. Far from requiring trial courts to explain a decision not to approve a defendant's request to waive his or her right to a jury trial, Patton underscores the central role jury trials have in our system of justice and cautions trial judges that they should not rubber-stamp, "as a mere matter of rote," a defendant's desire to relinquish that right, which must be knowing and voluntary. See State v. Anderson, 2002 WI 7, ¶ 11, 249 Wis. 2d 586, 595, 638 N.W.2d 301, 305-306. But this does not mean that the trial court must justify its refusal to approve the waiver; nothing in Patton condemns a trial judge's routine refusal to permit defendants to waive the jury-trial right.

¶ 14. Finally, there is nothing in the record that indicates that the trial court's refusal to approve Burks's desire to waive his right to a jury trial prejudiced Burks. Leaving the chimera of possible prejudice for another day, we note, as did Singer, that the protections guarding the jury-trial process are substantial: "venue can be changed when there is a well-grounded fear of jury prejudice" and "prospective jurors are subject to voir dire examination, to challenge for cause, and to peremptory challenge." 380 U.S. at 35; see Wis. Stat. § 971.22 (change of venue), Wis. Stat. Rule 805.08 (juror qualification, voir dire, challenges), Wis. Stat. § 972.03 (peremptory challenges); see also Wis. Stat. § 972.12 (juror sequestration).

¶ 15. To he sure, some defendants may seek to give up their right to a jury trial to secure some other, perhaps more valuable, tactical advantages. But trials are not "sporting contests," Morris v. Slappy, 461 U.S. 1, 15 (1983), where defendants have unfettered sway to demand strategic advantages beyond those either guaranteed by the federal and state constitutions or otherwise provided by law. Thus, we disagree with the postconviction court's observation that Burks's rights were violated because "he didn't get the trial he wanted" even though Burks "may have gotten a fair trial." See also fn. 4.

¶ 16. In sum, other than some vague considerations of strategy, which from what Burks's lawyer told the trial court, and recounted above, apparently focused on Burks's desire for the fact-finder to consider evidence that was not strictly admissible under the rules of evidence, there is nothing in the record that indicates that the trial court's refusal to approve Burks's request to waive the jury harmed him in any way. Indeed, on this record, it merely subjected him "to an impartial trial by jury — the very thing that the Constitution guarantees him." Singer, 380 U.S. at 36.

By the Court. — Order reversed.

       The Honorable Robert Crawford presided over Virgil L. Burks's trial and denied Burks's request to waive his right to a jury trial. The Honorable David A. Hansher entered the post-conviction order granting Burks a new trial.

       Significantly, and in contrast to the jury-trial right in criminal cases, the Wisconsin Constitution's grant of the right to a jury trial in civil cases specifically authorizes the legislature to provide for the waiver of that right: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a trial may be waived by the parties in all cases in the manner prescribed by law." Wis. Const. art. 1, § 5; cf. Singer v. United States, 380 U.S. 24, 30-31 (1965) (noting that had the framers of the United States Constitution recognized a general common-law right of defendants in criminal cases "to be tried by the court instead of by a jury" "it would be difficult to understand why Article III[, Section 2: "The trial of all crimes, except in cases of impeachment, shall be by jury"] and the Sixth Amendment were not drafted in terms which recognized [that] option"). Neither party, however, has discussed the effect, if any, of the difference in the grant of the civil jury-trial right in article 1, section 5, and the grant of the criminal jury-trial right in article 1, section 7, and we do not consider it further.

       Wisconsin Stat. Rule 805.08 establishes the qualifications and sets the procedure for the selection of jurors. Wisconsin Stat. § 967.08(2) (b) permits the jury-trial waiver hearing to be done by either "telephone or live audiovisual means."

       Based on his statements to the trial court in support of Burks's desire to waive his right to a jury trial, Burks's lawyer seems to have wanted more leeway in presenting evidence than that he believed would be permitted in a jury trial. Thus, the trial court's assurance that it would enforce the rules of evidence during the jury trial appears to be something that Burks sought to avoid by seeking a bench trial. As we note later in the text of the opinion, this may have been what the postconviction court meant when it said that by not approving Burks's request for a bench trial Burks "didn't get the trial he wanted."

       Rule 23(a) of the Federal Rules of Criminal Procedure has been simplified without an apparent change of meaning. It now reads:
      If the defendant is entitled to a jury trial, the trial must he by jury unless:
      (1) the defendant waives a jury trial in writing;
      (2) the government consents; and
      (3) the court approves.

       Burks argues, and the postconviction court agreed, that there is a distinction between the withholding of "consent," a right that Wis. Stat. § 972.02(1) gives to the State, and the withholding of "approval," which the statute vests in the trial court. We see no meaningful distinction between the words, except that one describes the right the statute gives to an adversary, and the other describes the power given to the trial court. Indeed, "approval" is often used as a synonym of "consent." Webster's Third New International Dictionary 482 (1993); American Heritage Dictionary 401 (3d ed. 1992); Black's Law Dictionary 300 (7th ed. 1999). Thus, the American Heritage Dictionary explains: "Though approve ... often means simply to consider right or good (knew my parents wouldn't approve of what I had done), it can also denote official consent: 'The colonel or commanding officer approves the sentence of a regimental court-martial.'" American Heritage Dictionary at 91 (italics in original). Significantly, referring to Rule 23(a) of the Federal Rules of Criminal Procedure, which, like § 972.02(1), uses the word "consent" when describing the government's response to a defendant's desire to waive a jury, and the word "approval" when characterizing the trial court's role, Singer, 380 U.S. at 36, used the word "consent" to identify the responsibility of both:
      We find no constitutional impediment to conditioning a waiver of this Fjury-trial] right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.
      (Emphasis added.)