author: DYKMAN, J.

text:
    In re the Commitment of Larry J. Sprosty: State of Wisconsin, Petitioner-Respondent, La Crosse County, Intervenor-Respondent, v. Larry J. Sprosty, Respondent-Appellant.

    Court of Appeals

      No. 00-2404.

      Submitted on briefs July 9, 2001.

    Decided September 27, 2001.

    2001 WI App 231
    (Also reported in 636 N.W.2d 213.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Jack E. Schairer, assistant state public defender of Madison, and Roseann T. Oliveto, assistant state public defender of Lancaster.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.

       Petition to review denied 11-27-01.

   DYKMAN, J.

¶ 1. Larry Sprosty was committed to the Wisconsin Resource Center as a sexually violent person in 1995. His petition for supervised release was later granted, but the circuit court relieved the State from its order when it concluded that new evidence demonstrated that it was substantially probable Sprosty would reoffend. Sprosty appeals from the order granting the State's motion for relief and from an order denying Sprosty's motion to vacate the order for relief. Sprosty argues that no extraordinary circumstances have occurred under Wis. Stat. § 806.07(1)(h) (1999-2000) that would justify relieving the State from the 1996 order granting Sprosty's petition for supervised release. In addition, Sprosty contends that the circuit court erred both when it allowed one of the State's experts to testify, even though he was not a psychologist licensed in Wisconsin, and later when it denied his motion to vacate the order for relief after it was discovered that the same witness had given misleading or false testimony.

¶ 2. We conclude that the circuit court did not exercise its discretion erroneously either when it determined that there were extraordinary circumstances justifying relief under Wis. Stat. § 806.07(1)(h) or when it allowed one of the State's witnesses to give an expert opinion. Further, the circuit court did not err by denying Sprosty's motion to vacate its order. Accordingly, we affirm.

I. Background.

¶ 3. This case has taken a long and circuitous path through the Wisconsin courts. Larry Sprosty was convicted of first-degree sexual assault of a child, sexual exploitation of a child, and child enticement in 1991. The circuit court sentenced him to five years in prison. Before Sprosty was scheduled to be released, the State filed a petition under Wis. Stat. § 980.01(2) and (7) (1993-94) to commit Sprosty as a "sexually violent person." After a trial, the circuit court concluded that Sprosty was a sexually violent person and committed him to the Wisconsin Resource Center for an indeterminate amount of time.

¶ 4. On February 1, 1996, Sprosty petitioned the circuit court for an order granting him supervised release under Wis. Stat. § 980.08 (1993-94). After a hearing on September 27, 1996, the circuit court granted Sprosty's petition for supervised release and ordered the Department of Probation and Parole to prepare a treatment plan. When Crawford County failed to find a placement for Sprosty, the circuit court denied Sprosty supervised release "on the grounds that necessary accommodations for his needs for treatment, for supervision, and for the protection of the community are unavailable in Crawford County and elsewhere." Sprosty appealed the order and we reversed, concluding that, under § 980.08(5), a person must be released if the circuit court determines that release is appropriate, regardless whether the Department of Health and Family Services (DHFS) locates a placement. State v. Sprosty, 221 Wis. 2d 401, 403, 585 N.W.2d 637 (Ct. App. 1998). The supreme court affirmed, holding that the circuit court was required to ensure that Sprosty was placed in an appropriate program once it ordered supervised release. State v. Sprosty, 227 Wis. 2d 316, 320, 595 N.W.2d 692 (1999). The supreme court remanded the case to the circuit court to designate and order a county to develop a supervised release plan for Sprosty. Id. at 337.

¶ 5. Sprosty was never released. First, the circuit court ordered Dane County to prepare a plan for Sprosty because it concluded that Crawford County did not have adequate services and resources for him. However, the court later withdrew this order after it concluded that Wis. Stat. § 980.08(5) (1993-94) did not allow Sprosty to be placed in Dane County. The court then ordered La Crosse County to prepare a plan, in time for a release date of February 1, 2000. When Sprosty was not released on February 1, the court extended the time for release to March 1, 2000.

¶ 6. A hearing was held on February 23, 2000, to show cause why Sprosty had not yet been placed and to determine what efforts La Crosse County was making to meet the March 1 deadline. Although the court found the efforts of La Crosse County lacking, it extended the time for release to April 1, 2000.

¶ 7. On March 13, 2000, the State filed a motion with the circuit court to reconsider its order for supervised release, alleging that Sprosty had made sexual advances on a seventeen-year-old cellmate in the Crawford County Jail during February 2000, making supervised release no longer appropriate. After the circuit court concluded that the time for filing a motion to reconsider had long since passed, the State moved the court for an order granting relief from the trial court's 1996 order granting supervised release to Sprosty under Wis. Stat. § 806.07(1)(h).

¶ 8. The circuit court held hearings on May 25, 2000, and July 13, 2000. M.L.B., who was seventeen years old at the time the incident occurred, testified that he shared a cell with Sprosty at the Crawford County Jail for approximately two weeks. M.L.B. stated that one evening Sprosty left a letter on his (Sprosty's) bed. Although Sprosty never actually gave the letter to M.L.B., M.L.B. believed it was clear that Sprosty intended for him to read it. M.L.B. stated: "He [Sprosty] walked out. He looked at me. Sat it down so I'd see him sit it down. He sat it right where I could see." After Sprosty left the cell, M.L.B. picked up and read the letter when he saw his name written at the top. The letter was an offer from Sprosty to perform oral sex on M.L.B. The next day, M.L.B. informed prison officials of the letter and. Sprosty was taken out of the cell. M.L.B. also testified that Sprosty never verbalized his offer and did not attempt any sexual contact with him before or after he saw the letter. Sprosty did not testify.

¶ 9. Two experts testified for the State. Raymond Wood is a clinical psychologist, licensed in Wisconsin, and the clinical director for the Sexually Violent Person Program in Illinois. Previously, Wood had contact with Sprosty as a therapist at the Wisconsin Resource Center. During the hearing, Wood testified that he believed Sprosty was still a sexually violent person and that it was substantially probable that he would reoffend if placed on supervised release. He further stated that the significance of the incident in the Crawford County Jail was "enormous" and that there were no conditions that could be placed on Sprosty that would make supervised release appropriate.

¶ 10. Anthony Thomalla, a clinical psychologist who was the Treatment Director at the Sand Ridge Care Center, concurred with Wood that supervised release would be inappropriate. In 1999, he had prepared an examination report concluding that Sprosty should not be placed on supervised release. He testified that the incident at the Crawford County Jail confirmed his earlier concerns.

¶ 11. Two experts also testified for Sprosty. Janet Weber provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release. She has a master's degree in social work, but is not a psychologist. Weber testified that her treatment plan would not have been affected by the incident in the Crawford County Jail and she believed Sprosty handled the incident appropriately. She based her conclusion in part on a "decision matrix" that Sprosty had prepared after he wrote the letter to M.L.B. According to Weber, part of Sprosty's treatment was to create a matrix when he was at risk to reoffend in order to assess alternatives to inappropriate sexual behavior. The decision matrix listed a number of reasons Sprosty believed he should not have sexual contact with M.L.B., including "He is still a child," and "It is wrong and against everything I believe." In addition, Weber noted that Sprosty spoke to a patient care technician at the jail after he wrote the letter, never verbalized his offer to M.L.B., and had not created the situation in which he was placed. However, the trial court would not allow Weber to give her opinion regarding whether there was a substantial probability that Sprosty would reoffend.

¶ 12. Diane Lytton is a licensed psychologist with a Ph.D. in clinical psychology. She is also trained in the evaluation and treatment of sex offenders. She testified that the incident at the jail did not substantially raise Sprosty's risk to reoffend. Similar to Weber, Lytton based her conclusion on the decision matrix, and the lack of any sexual contact with or a verbal proposition to M.L.B. Lytton also noted that Sprosty had asked to be placed in a cell by himself.

¶ 13. At the close of the hearing, the circuit court concluded that M.L.B. was telling the truth, that Sprosty had intentionally left the letter on his bed for M.L.B. to read, and that sexual contact would have occurred had M.L.B. consented. The court also found that Sprosty had requested twice to be moved out of the cell and that Sprosty was not aware that M.L.B. was seventeen years old.

¶ 14. Regarding the expert opinions, the court stated that the opinions of Wood and Thomalla "were the more appropriate, acceptable, and reasonable," and that "Dr. Lytton and Ms. Weber fail to realize the significance of the incident at the jail." Although acknowledging the advancements that Sprosty had made, the court concluded that the recent incident made supervised release inappropriate. In the court's written findings of fact and conclusions of law, the court concluded that there was a substantial risk that Sprosty would reoffend if released into the community, that the State had shown this by clear and convincing evidence, and that the "ends of justice" would be accomplished by granting the State's motion.

¶ 15. On August 11, 2000, Sprosty filed a motion requesting the court to vacate its order based on evidence that Thomalla had provided false and misleading testimony regarding his professional background and had engaged in other misconduct. Although the court agreed that inaccuracies in Thomalla's testimony impaired his credibility somewhat, the court concluded that it was not required to strike Thomalla's testimony or vacate the order for relief. The circuit court denied Sprosty's motion and Sprosty appeals.

II. Analysis

A. Extraordinary Circumstances

¶ 16. Wisconsin Stat. § 806.07 provides the bases for which circuit courts may relieve a party from a judgment or an order. In addition to the specific grounds provided in § 806.07(1)(a)-(g), paragraph (h) provides that a court may relieve a party from an order for "[a]ny other reasons justifying relief from the operation of the judgment." Although motions under paragraphs (a) through (c) must be brought within one year, there is no deadline for motions under paragraph (h) beyond that they be brought "within a reasonable time." Section 806.07(2).

¶ 17. To prevent parties from subverting the time requirements of Wis. Stat. § 806.07(1)(a)-(c), they must demonstrate that there are "extraordinary circumstances" justifying relief to successfully invoke § 806.07(1)(h). Shirk v. Bowling, Inc., 2001 WI 36, ¶ 14, 242 Wis. 2d 153, 624 N.W.2d 375; see also Connor v. Connor, 2001 WI 49, ¶ 28, 243 Wis. 2d 279, 627 N.W.2d 182 (holding that the moving party "bears the burden to prove that the requisite conditions exist"). Extraordinary circumstances are those in which "the sanctity of the final judgment is outweighed by the 'incessant command of the court's conscience that justice be done in light of all the facts.'" Mogged v. Mogged, 2000 WI App 39, ¶ 13, 233 Wis. 2d 90, 607 N.W.2d 662 (quoting State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 550, 363 N.W.2d 419 (1985)). At the same time, courts must liberally construe § 806.07 to allow relief whenever appropriate to accomplish justice. Allstate Ins. Co. v. Konicki, 186 Wis. 2d 140, 151-52, 519 N.W.2d 723 (Ct. App. 1994).

¶ 18. We review the circuit court's determination that extraordinary circumstances are present and its ultimate decision to grant relief from judgment for an erroneous exercise of discretion. T.E.D. v. P.S.G., 170 Wis. 2d 231, 238-39, 487 N.W.2d 644 (Ct. App. 1992). Accordingly, we will reverse the circuit court only if the record demonstrates that it failed to exercise its discretion, applied an incorrect legal standard, or if the facts fail to support the trial court's decision. In re Commitment of Williams, 2001 WI App. 155, ¶ 9, 246 Wis. 2d 722, 631 N.W.2d 623.

¶ 19. Sprosty contends that the State has not demonstrated that extraordinary circumstances exist in this case. He refers us to the factors first annunciated in M.L.B., which the supreme court stated could be used by circuit courts in determining whether relief under Wis. Stat. § 806.07(1)(h) is justified. These factors include:

whether the judgment was the result of the conscientious, deliberate and well-informed choice of the claimant; whether the claimant received the effective assistance of counsel; whether relief is sought from a judgment in which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; whether there is a meritorious defense to the claim; and whether there are intervening circumstances making it inequitable to grant relief.

M.L.B., 122 Wis. 2d at 552-53.

¶ 20. Sprosty argues that the trial court failed to consider these factors and that each of them weighs against granting relief in this case, requiring reversal. We agree with Sprosty that the record does not reflect that the circuit court considered each of these factors. We disagree, however, that it was required to do so in this case. The list of factors in M.L.B. is not exclusive. Rather, M.L.B. requires circuit courts more generally to "consider factors relevant to the competing interests of finality of judgments and relief from unjust judgments." Id. at 552.

¶ 21. In this case the circuit court concluded that the interest in finality was outweighed by the perceived risk that the new incident was an indicator that Sprosty would reoffend. The court stated:

But this incident at the jail also shows that in — a sexual assault of a juvenile may occur at any time, any place. If it can occur in a jail, it can occur in a men's room, in a public place in La Crosse, or many other places. So is there a risk of re-offending? I believe that there is, and I believe that risk is substantial.
My ultimate conclusion here is that it is in the interests of justice, especially for the safety of the public, safety of young — especially the safety of young persons, which requires that the State be entitled to relief from the order of supervised release.

¶ 22. We cannot conclude that the trial court improperly exercised its discretion because it considered the safety of children above all other factors. Under Wis. Stat. § 980.08(4), the circuit court must deny a petition for supervised release if the State proves, by clear and convincing evidence, that the petitioner is still a sexually violent person who is substantially probable to engage in acts of sexual violence if not continued in institutional care. And, under § 980.08(6m), a court may revoke supervised release if the State shows, again by clear and convincing evidence, that any rule or condition of release has been violated or that safety of others requires that supervised release be revoked. The circuit court explicitly wrote in its findings of fact and conclusions of law that the State had met its burden under § 980.08(4) and implicitly found that the requirements for § 980.08(6m) were met when it concluded that revoking Sprosty's release was required to protect "the safety of young persons." Because it was proper for the circuit court to look to § 980.08 for guidance in this case to determine whether there were extraordinary circumstances justifying relief, the court did not misuse its discretion in failing to consider all of the factors listed in M.L.B.

¶ 23. Sprosty also contends that the evidence presented did not demonstrate a substantial probability that he would reoffend if released. Sprosty argues that because no threats or touching occurred, he was still a proper candidate for supervised release. He also emphasizes that nothing he did was against the law, since the Wisconsin Statutes do not prohibit attempts to have sex with seventeen year olds.

¶ 24. We are not persuaded, however, that a sexual assault must occur before the circuit court can conclude that it is substantially probable that a pérson will reoffend if not continued in institutional care. Cf. State v. Carpenter, 197 Wis. 2d 252, 275-76, 541 N.W.2d 105 (1995) (holding that proof of a recent overt act is not necessary to establish that someone is a sexually violent person). Additionally, whether Sprosty's behavior was criminal is not determinative. Rather, the relevant inquiry is whether the behavior indicates Sprosty is likely to reoffend. Through his letter, Sprosty offered to have sexual contact with a minor, the very behavior for which he was adjudicated to be a sexually violent person. Although we seriously question the wisdom of the decision to place a child sex offender in the same cell as a seventeen-year-old boy, whether the State was negligent or not does not change whether Sprosty is a risk to the community.

¶ 25. We want to encourage counties to implement programs for supervised release. Once a circuit court has determined that supervised release is appropriate, the designated county must act promptly in preparing a placement, and circuit courts should not hesitate to hold dilatory counties in contempt. But, regardless whether La Crosse County should have acted more swiftly, we cannot close our eyes to the incident that occurred in the Crawford County Jail. The circuit court concluded, and at least one expert agreed, that the incident demonstrated that there was a substantial probability that Sprosty would reoffend. Based on the evidence before the circuit court, we cannot conclude that it improperly exercised its discretion in concluding that extraordinary circumstances existed justifying relief from the order.

B. Requirements for Experts

¶ 26. Sprosty asserts next that under Wis. Stat. § 980.04(3) and Wis. Admin. Code §§ HFS 99.03-.04 (May 1999), each expert was required to be a psychiatrist or a psychologist licensed in Wisconsin. Because Thomalla was licensed in Illinois rather than Wisconsin, Sprosty argues that he was not qualified to give an expert opinion. Alternatively, Sprosty contends that if § 980.04(3) and §§ HFS 99.03-.04 do not apply, then the circuit court erred when it refused to allow Janet Weber, who had a master's degree in social work, to give her opinion regarding whether Sprosty was likely to reoffend.

¶ 27. We reject Sprosty's contention that Thoma-lla was required to be licensed in Wisconsin. Wisconsin Admin. Code §§ HFS 99.04 provides: "A person conducting an evaluation under s. 980.04(3), Stats., shall be either a psychiatrist or a licensed psychologist," and Wis. Admin. Code § HFS 99.03 defines "licensed psychologist" as one that was licensed pursuant to the Wisconsin Statutes. However, § 980.04(3) is not a rule regarding the admissibility of expert testimony. Rather, it provides the procedure the circuit court should follow if it determines that there is probable cause to believe that someone is a sexually violent person. Therefore, we agree with the State that the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge, skill, experience, training, or education. See Wis. Stat. § 907.02. Further, the determination whether an expert is qualified to testify is within the circuit court's discretion. State v. Donner, 192 Wis. 2d 305, 311, 531 N.W.2d 369 (Ct. App. 1995).

¶ 28. It is undisputed that Thomalla has a Ph.D. in counseling psychology, is a licensed psychologist in Indiana, and has previously conducted Wis. Stat. ch. 980 examinations. Based on this information, the circuit court did not misuse its discretion when it concluded that Thomalla was qualified to testify as an expert regarding sexually violent persons.

¶ 29. We agree with Sprosty's assertion that the circuit court erred in refusing to allow Weber to give her opinion on whether Sprosty was likely to reoffend if placed on supervised release. Similar to Thomalla, Weber does not meet the requirements of Wis. Admin. Code § HFS 99.04, but she does have expertise with respect to treating sex offenders. Therefore, she was qualified to give her opinion on the ultimate issue. However, an erroneous evidentiary ruling does not require reversal unless it affects the substantial rights of the party. Wis. Stat. §§ 805.18(2) and 901.03(1). For an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 96, 245 Wis. 2d 772, 629 N.W.2d 727.

¶ 30. In this case, although the circuit court stated it was prohibiting Weber from testifying on the ultimate issue, she was nevertheless allowed to give her opinion that she believed Sprosty had acted appropriately in response to the incident and that the incident would not affect her treatment plan. In rejecting Sprosty's assertion that there was no substantial probability he would reoffend, the circuit court expressly referred to Weber's opinion, suggesting it was aware she disagreed with this conclusion. Therefore, we fail to see how the circuit court's decision would have been altered had Weber stated the precise words that she believed Sprosty was not at a substantial risk to reoffend. Furthermore, the court did allow Lytton to give her opinion on the ultimate issue. There is no indication in the circuit court's decision that it considered the number of expert witnesses each party had. Rather, the court expressly stated that it was the reasoning of Thomalla and Wood that it found persuasive. In short, because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court's decision, we conclude the error was harmless and Sprosty is not entitled to a new trial.

C. Testimony of Thomalla

¶ 31. Sprosty asserts that we should reverse the circuit court because it relied on the testimony of Thomalla in coming to its decision, and refused to change its mind even after learning that he had given misleading testimony regarding his professional background and engaged in other misconduct. Specifically, Sprosty argues that Thomalla: (1) lied about his credentials, which was contrary to the ethical standards of the American Psychological Association, and had been terminated from his current position because of it; (2) lied about the circumstances surrounding his termination from a former job; (3) altered two Wis. Stat. ch. 980 reexamination reports (unrelated to Sprosty) without knowledge of the original authors; and (4) made an unauthorized deposit of state money.

¶ 32. In rejecting Sprosty's argument that it should strike Thomalla's testimony, the circuit court concluded that the allegation regarding the deposit was irrelevant to Thomalla's testimony and that his altering of reports was "misconduct," but did not "ris[e] to the level of striking his testimony." With regard to the false and/or misleading aspects of his testimony, the court concluded that they did not undermine Thomalla's basic qualifications to give an expert opinion. Moreover, Thomalla's opinion was corroborated by Wood.

¶ 33. We cannot conclude that the circuit court's refusal to strike Thomalla's testimony was improper. While Thomalla's past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law. See In re Spengler, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) (holding that court of appeals may not reverse circuit court's determinations regarding credibility unless the witness is credible or incredible as a matter of law). First, we agree with the circuit court that although Thomalla may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there is no dispute that he is a licensed psychologist or that he has experience evaluating sexually violent persons. Second, we are not convinced that Thomalla's dishonesty regarding his curriculum vitae suggests his opinion regarding the likelihood that Sprosty will reoffend is similarly unreliable.

¶ 34. Similar to the above argument, Sprosty argues that Thomalla's testimony constitutes a fraud on the court, requiring a new trial. Under Wis. Stat. § 806.07(1)(c), a court may relieve a party from an order if it was obtained by fraud. In this case, however, there is no indication that the order was obtained by fraud. First, there is no evidence that the State was aware that Thomalla's testimony was inaccurate. Second, it was not the specific titles that Thomalla claimed he held that the circuit court relied upon, but rather his expertise regarding sex offenders. And, as noted above, we do not believe that Thomalla's expert opinion is no longer worthy of belief because of inaccuracies in his testimony regarding his work history. Third, the circuit court expressly noted that its decision was not based on Thomalla's opinion alone, but also on Wood's, strongly suggesting that, even without Thomalla's testimony, the court would have made the same decision. Therefore, the circuit court did not err when it declined to order a new trial.

D. Fair Hearing

¶ 35. Finally, Sprosty makes a number of allegations throughout his brief that he was denied a fair hearing, although he never asserts that his right to due process was violated. Specifically, Sprosty claims he was denied a fair hearing because: (1) the State relied on Thomalla's incredible testimony; and (2) he was unable to cross-examine Thomalla regarding potential bias he held in favor of the State or with regard to his inaccurate curriculum vitae and prior misconduct.

¶ 36. With respect to the first claim, we have already noted that there is no evidence that the State was aware that Thomalla's testimony was misleading or false. Sprosty, however, argues that under Giglio v. U.S., 405 U.S. 150 (1972), and State v. Nerison, 136 Wis. 2d 37, 401 N.W.2d 1 (1987), the State was required to withdraw its use of Thomalla's testimony after it learned that it was false. Although it is true that Giglio and Nerison held that prosecutors may not rely on testimony that they later learn to be false, this is only if " 'the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.'" Giglio, 405 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)). Here, the judge stated expressly at the August 23 hearing that he believed Thomalla's expert opinion testimony was still credible. Since we cannot conclude that Thomalla's testimony is incredible as a matter of law, we agree with the State that it was not required to withdraw all reliance on Thomalla's opinion.

¶ 37. For Sprosty's second claim, that he was unable to fully cross-examine Thomalla, he relies on Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997). Lindh held that a defendant's right under the Confrontation Clause of the federal constitution was violated when he was prohibited from attempting to show the State's expert witness was biased because of a pending prosecution. Id. at 901-02. We first note that there is no indication in the record that Sprosty made this argument to the circuit court and it is therefore waived. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). Furthermore, we do not believe that Lindh is applicable. There was no pending prosecution against Thomalla and no evidence that Thomalla believed he could save his job with DHFS by giving testimony favorable to the State. Sprosty's claim is speculation. We again note that the circuit court also relied on Wood's opinion, which corroborated Thomalla. We also fail to see how Sprosty was prejudiced by being unable to cross-examine Thomalla regarding the inaccuracies in his curriculum vitae or other past misconduct. The circuit court accepted as true all of the factual allegations regarding Thomalla made by Sprosty but concluded that his opinion was still credible. Sprosty has not indicated what else further cross-examination would have produced. Therefore, Sprosty's argument that he was denied a fair hearing fails.

By the Court. — Orders affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Sprosty appealed this decision and we affirmed. State v. Sprosty, No. 95-1297 (Wis. Ct. App. Nov. 21, 1996).

       The record is not clear regarding why Sprosty was being held in the Crawford County Jail rather than the Wisconsin Resource Center.

       In addition to the letter, M.L.B. also testified that he believed Sprosty was watching him while he (M.L.B.) was taking a shower. Although the circuit court stated that it believed M.L.B., it never indicated whether it thought the incident was significant and instead focused on the letter. Because the circuit did not rely on that incident in making its decision, we will not consider it either.

       Sexual intercourse with a seventeen year old who is not your spouse is a Class A misdemeanor. See Wis. Stat. § 948.09. Subject to a few exceptions that do not apply here, an attempt to commit a misdemeanor is not made criminal by the Wisconsin Statutes. See Wis. Stat. § 939.32.

       Sprosty also contends that the doctrine of "unclean hands" should bar the State from obtaining relief from the judgment. See Timm v. Portage County Draining Dist, 145 Wis. 2d 743, 753, 429 N.W.2d 512 (Ct. App. 1988) (holding that party may be denied equitable relief if it has been guilty of substantial misconduct "in regard to, or at all events connected with, the matter in litigation"). We also reject this argument because Sprosty fails to point to any evidence in the record that would indicate the State knew that Thomalla was providing inaccurate testimony.

       We note also that even where a fraud on the court has occurred, the circuit court is not required to vacate the judgment. Johnson v. Johnson, 157 Wis. 2d 490, 497-98, 460 N.W.2d 166 (Ct. App. 1990).

       Sprosty did not file a reply brief.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. George S. Tulley, Defendant-Appellant.
    Court of Appeals

      Nos. 00-3084-CR, 00-3085-CR.

      Submitted on briefs June 11, 2001.

    Decided September 27, 2001.

    2001 WI App 236
    (Also reported in 635 N.W.2d 807.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Patrick M. Donnelly, assistant state public defender.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Diane M. Welsh, assistant attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 12-17-01.

   ROGGENSACK, J.

¶ 1. George S. Tulley appeals judgments of the circuit court convicting him of bail jumping, witness intimidation, and ten counts of sexual assault of a child, A.K. He also appeals the circuit court's order denying his postconviction motions. He argues that the court erred in conducting in camera voir dire of three prospective jurors and that his trial counsel was ineffective for failing to object to a jury instruction and the verdict forms, as well as for introducing evidence that Tulley's sons had sexually assaulted A.K. We conclude that (1) the court's error in conducting in camera voir dire of three prospective jurors was harmless; (2) the jury instructions and verdict forms correctly stated the applicable law; and (3) Tulley was not denied effective assistance of counsel. Therefore, we affirm the judgments and order of the circuit court.

BACKGROUND

¶ 2. A September 1, 1999, information charged Tulley with ten counts of second-degree sexual assault of a child. The information alleged that Tulley had repeatedly had sexual contact with A.K., his fourteen-year-old niece, who lived with him and his family. A separate information charged Tulley with bail jumping and witness intimidation based on an incident in which he allegedly yelled obscenities at A.K. from a passing car, thereby violating the no-contact provision of his bail.

¶ 3. Tulley pled not guilty, and his case was tried to a jury. During voir dire, the court interviewed three potential jurors in chambers outside the presence of both attorneys, the defendant and the court reporter. Then it excused each potential juror for cause. During the trial, Á.K. testified that Tulley had sexual contact, including sexual intercourse, with her numerous times, although she could not recall exactly how many. She testified that he assaulted her at five different locations — the basement of the farmhouse where they lived and four other locations on or near the farm. Both the prosecution and defense introduced testimony that two of Tolley's sons had been convicted for sexually assaulting A.K. Following the close of evidence, the verdict forms were drafted to reflect two acts of sexual contact in each of the five locations. Without objection from defense counsel, the jury was instructed as follows regarding unanimous verdicts:

It is for you to determine whether the defendant is guilty or not guilty of each of the offenses charged. You must make a finding as to each count of the informa-tions. Each count charges a separate crime and you must consider each one separately. Your verdict for the crime charged in one count must not affect your verdict on any other count.
This is a criminal, not a civil, case. Therefore, before the jury may return a verdict which may be legally received, such verdict must he reached unanimously. In a criminal case, all 12 jurors must agree in order to arrive at a verdict.

¶ 4. After the jury returned a guilty verdict on all counts, Tulley brought a postconviction motion seeking a new trial on several grounds, including (1) that the circuit court had erred by conducting in camera voir dire of three prospective jurors; and (2) that he had ineffective assistance of counsel. The circuit court denied Tulley's postconviction motions. Tulley appeals.

DISCUSSION

Standard of Review.

¶ 5. Whether a criminal defendant has been denied his right to due process is a question of constitutional fact that we review de novo. State v. Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91, 94 (Ct. App. 1988). When we review an ineffective assistance of counsel claim, we examine a circuit court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy under the clearly erroneous standard. State v. Lindell, 2000 WI App 180, ¶ 8, 238 Wis. 2d 422, 429, 617 N.W.2d 500, 503, aff'd, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223. However, whether counsel's performance was deficient and whether such deficient performance was prejudicial are questions of law, which we review de novo. Id.

Voir Dire.

¶ 6. Both the United States and Wisconsin constitutions grant a criminal defendant the right to be present and to have counsel present during every critical stage of a criminal proceeding, including during jury voir dire. U.S. Const. amends. VI and XIV; Wis. Const. art. I, § 7; State v. David J.K., 190 Wis. 2d 726, 736, 528 N.W.2d 434, 438 (Ct. App. 1994). Furthermore, a criminal defendant also has a statutory right to be present during voir dire of the jury. Wis. Stat. § 971.04(1)(c) (1999-2000). The right to be present during voir dire and, if represented by counsel, the right to have counsel present during voir dire cannot be waived. State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682, 685 (Ct. App. 1999).

¶ 7. However, deprivation of both the defendant's right to be present and to have counsel present during voir dire is reviewed on appeal for harmless error. Harris, 229 Wis. 2d at 839-40, 601 N.W.2d at 686. Generally, an error is harmless if there is no reasonable possibility that it contributed to the conviction. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231-32 (1985). A "reasonable possibility" is one sufficient to undermine confidence in the outcome of the proceeding. State v. Patricia A.M., 176 Wis. 2d 542, 556, 500 N.W.2d 289, 295 (1993). The burden of proof is on the beneficiary of the error to establish that the error was not prejudicial. Dyess, 124 Wis. 2d at 543-44 n.11, 370 N.W.2d at 232 n.11.

¶ 8. In the case at hand, the circuit court examined three members of the venire outside the presence of the defendant, his counsel and the prosecuting attorney, without objection from anyone. The first potential juror, J.K., told the court that she had a medical condition, and after the court had questioned her in camera, she was excused. The second potential juror, D.E., asked to speak privately with the court in response to a question about whether any of the potential jurors had life experiences that would make it difficult for them to be impartial. After the court's in camera conference with D.E., she was excused for cause, as the court explained:

All right, Mrs. [E.] and I discussed and agreed in discussing it with her that I would inform counsel that I'm excusing her because she felt that because of life experiences she could not be fair to the State in this case. So she's excused for that reason.

The third potential juror, A.G., also asked to speak privately with the court in response to its question about whether any of the jurors believed they could not serve on the jury for any other reason. After an in camera conference with A.G., the court excused him and stated:

All right, the court will excuse Mr. [G.] for reasons similar to the reasons that [R.E] was excused.

¶ 9. At the postconviction hearing, the court stated that it did not recall why any of the three jurors had been excused and denied Tulley.'s motion for a new trial. The court explained its decision as follows:

I don't think jurors are required to be subject to the indignity of having to disclose certain things in.. . front of counsel, other jurors, and even the defendant in a criminal case. I don't believe that the law is that the defendant's right to be present during the trial, his right to voir dire examination goes that far.
I'm satisfied that if we're going to have a process which indeed is fair to both the State and to defendants and protects the due process rights of defendants, jurors have to have some kind of haven where if they have particular problems they can reveal those problems.
I'm thinking back to a case I tried not long ago with [the prosecutor], a sexual assault case, and he from time to time asked the court to ask questions that he apparently doesn't want to ask the jurors, the panel as a whole, questions such as "have you ever been convicted of sexually assaulting someone or arrested for sexually assaulting someone?"
The chances of someone frankly raising their hand and saying "I've been accused of sexually assaulting someone" are pretty damn slim when you've got a room full of 40 people on the record.
There are things that jurors will sometimes say in chambers to a judge alone that they might not say in open court. And frankly, I think defendant's rights, if anything, are protected by a judge doing that.

¶ 10. The State, by citing David J.K., 190 Wis. 2d at 736, 528 N.W.2d at 438, recognizes that Tulley has a statutory and a constitutional right to be present during the voir dire of prospective jurors. However, it argues that any error was harmless because the court excused all three jurors who were interviewed in camera. Tulley responds that we should presume prejudice because he was denied the assistance of counsel during this critical stage of the adjudicative process. We agree with the State.

¶ 11. To establish that the circuit court's in camera interview of the three prospective jurors constituted harmless error, the State must show that there is no reasonable possibility that the in camera interviews contributed to Tulley's conviction. Dyess, 124 Wis. 2d at 543, 370 N.W.2d at 231-32. Tulley was present during the entire voir dire of all prospective jurors who served on the panel that convicted him. He does not assert that the jurors who served were not fair and impartial. He does not claim that the outcome of the trial was affected by the court's in camera discussions with the three jurors. Because the three prospective jurors with whom the court spoke in camera did not serve on the jury, we conclude that the State has met its burden to show that there is no reasonable possibility that the court's error contributed to Tulley's conviction. Therefore, we conclude that the circuit court's in camera interview of three prospective jurors, though error, was harmless error.

Ineffective Assistance.

¶ 12. The right to counsel guaranteed to a criminal defendant is the right to effective counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970). To prevail on an ineffective assistance of counsel claim, an appellant must show that counsel's performance was deficient and that that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Hubert, 181 Wis. 2d 333, 339-40, 510 N.W.2d 799, 801-02 (Ct. App. 1993). The burden of proof to show ineffective assistance of counsel is on the appellant. State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379, 386 (1997). The test for deficient performance is whether counsel's representation fell below the representation that a reasonably effective attorney would provide. Strickland, 466 U.S. at 687-88. In regard to prejudice, an appellant must prove that counsel's deficient performance was so substantial and serious that there is a reasonable probability that, but for the inadequate representation, the result of the trial would have been different. Id. at 694. An appellant must prevail on both prongs of the Strickland test to obtain relief. State v. Wirts, 176 Wis. 2d 174, 180, 500 N.W.2d 317, 318 (Ct. App. 1993).

¶ 13. Tulley argues that his trial counsel was ineffective for three reasons. First, trial counsel did not object to the unanimity instruction and the verdict forms given to the jury before deliberations. Second, trial counsel introduced evidence that two of Tulley's sons also had confessed and pled guilty to sexual assault of A.K., and third, he failed to object when the prosecutor argued to the jury that Tulley's failure to plead guilty was evidence of his manipulative nature.

1. Unanimity.

¶ 14. Because Tulley did not object to the jury instructions or verdict forms at trial, we may review his claim that they violated his right to jury unanimity only in the context of a claim of ineffective assistance of counsel. State v. Marcum, 166 Wis. 2d 908, 916, 480 N.W.2d 645, 549-50 (Ct. App. 1992). The Wisconsin Constitution guarantees the right to a jury trial. Wis. Const, art. I, §§ 5 and 7. In criminal cases, the right to a jury trial implies the right to a unanimous verdict on the ultimate issue of guilt or innocence. Richardson v. United States, 526 U.S. 813, 817, 819-20 (1999); State v. Johnson, 2001 WI 52, ¶ 11, 243 Wis. 2d 365, 372-73, 627 N.W.2d 455, 459. "The principal justification for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense." Johnson, 2001 WI 52 at ¶ 11 (citation omitted). A defendant may be denied the right to a unanimous jury verdict if (1) the prosecutor issues only one count but presents evidence of multiple crimes; or (2) the prosecutor issues only one count but introduces evidence of multiple acts that are not conceptually similar but each of which would be sufficient to constitute the criminal offense charged; and (3) with either alternative one or two above, the jurors do not unanimously agree which crime or acts the defendant committed. State v. McMahon, 186 Wis. 2d 68, 81, 519 N.W.2d 621, 626-27 (Ct. App. 1994). The Wisconsin Supreme Court has constructed the following analysis to determine whether a defendant has been denied the right to a unanimous jury verdict:

The first step is to determine whether the jury has been presented with evidence of multiple crimes or evidence of alternate means of committing the actus reus element of one crime. If more than one crime is presented to the jury, unanimity is required as to each. If there is only one crime, jury unanimity on the particular alternative means of committing the crime is required only if the acts are conceptually distinct. Unanimity is not required if the acts are conceptually similar.

State v. Lomagro, 113 Wis. 2d 582, 592, 335 N.W.2d 583, 589 (1983) (citations omitted).

¶ 15. Tulley asserts that trial counsel was ineffective for failing to object to the jury verdict forms and the unanimity instruction. The verdict forms asked the jury to decide whether Tulley was guilty of: "sexual contact with A.M.K. ... in the basement of the Tulley residence" (counts one and two); "sexual contact with A.M.K. ... in the Campton farm shed" (counts three and four); "sexual intercourse with A.M.K. ... in the Campton woods" (counts five and six); "sexual contact with A.M.K. ... in the Farm 4 shed" (counts seven and eight); and "sexual intercourse with A.M.K. ... in the Farm 4 woods" (counts nine and ten). Each act was described as taking place between March 28, 1997, and November 18, 1997. The court gave the following standard instruction on unanimity:

It is for you to determine whether the defendant is guilty or not guilty of each of the offenses charged. You must make a finding as to each count of the informa-tions. Each count charges a separate crime and you must consider each one separately. Your verdict for the crime charged in one count must not affect your verdict on any other count.
This is a criminal, not a civil, case. Therefore, before the jury may return a verdict which may be legally received, such verdict must be reached unanimously. In a criminal case, all 12 jurors must agree in order to arrive at a verdict.

¶ 16. The only direct evidence of the sexual assaults was the testimony of A.K., who testified that Tulley had assaulted her many times, including at least twice in each of the five locations described in the verdict forms. A.K. testified that Tulley had fondled her breasts and made her manipulate his penis more than once in the basement of the farm house; fondled her breasts and made her manipulate his penis "more than once for sure" in the Campton farm shed; had sexual intercourse with her in the Campton woods "a lot"; made her manipulate his penis "more than once for sure" in the Farm 4 shed; and had sexual intercourse with her in the Farm 4 woods "more than once on more than one day."

¶ 17. We conclude that, given the testimony at trial, Tulley has not met his burden of proving that trial counsel's not objecting to the jury instruction or verdict forms constituted deficient performance because the verdict forms and jury instruction correctly stated the applicable law. The jury was presented with evidence of multiple crimes in the form of A.K.'s testimony. The instruction that the court gave required the jury to unanimously agree on Tulley's guilt or innocence for each count. The verdict forms properly specified the location of each alleged assault and whether sexual contact or sexual intercourse was alleged to have occurred at each location. This is not a case in which a juror reasonably could have doubted whether a particular charged activity at any location occurred while also being convinced that other charged activity did occur at the same location. There was no basis for finding that some of the sexual assaults that A.K. described had occurred but others had not, because all of the assaults at all of the locations were described and supported by the same uncontradicted testimony. Therefore, we conclude that Tulley has not met his burden to show that trial counsel's performance in this area was deficient.

2. Evidence of Prior Assaults.

¶ 18. Tulley also argues that his trial counsel was ineffective because he introduced evidence prejudicial to Tulley without a valid strategic reason. At the hearing on Tulley's postconviction motions, his trial counsel testified:

Q. Did you have any tactical reasons for not objecting to the district attorney's comments ... regarding this statement that the district attorney made to the jury during its opening?
A. Regarding the sons?
Q. Yes.
A. Yeah, that was something I had mulled over for basically the length of the preparatory period for the trial. I debated all the way up to the morning of trial whether I was going to file a motion in limine to keep those facts out regarding the sons and I had finally decided that tactically I needed a reason or a motive for the victim in this case to lie. And so that's why I allowed the State to go into this.
Q. ... Could you be a little more specific in terms of what you decided concerning this information regarding the two sons?
A. The basic idea was why was she lying? ... I had to have a theory on if she's lying, why. I think in sexual assaults you have to have a motive.
Q. Okay. Can you explain what your theory of defense was as to why or how this information furthered your theory of defense, this somehow undermined the credibility of the complaining witness in this case?
A. As regards to the sons, the incidents are... much fewer; in the neighborhood of three to four each, maybe as high as six.... I had an opportunity to be at the prelim for those and she was very specific about them... . [S]he's not very specific, in my opinion, at all regarding ... Mr. George Tulley. So my theory was that she was lying about him, she'd gotten the boys in trouble and he had not protected her during this period of time and he was basically the father figure and she was going to get him in trouble, too.

¶ 19. The court found that defense counsel had made a strategic decision to introduce evidence that Tulley's sons also had sexually assaulted A.K. This finding is supported by trial counsel's testimony and is not clearly erroneous. Furthermore, while some might question the wisdom of admitting this evidence as a trial strategy, we cannot say that, as a matter of law, counsel's strategy fell below that which would be provided by a reasonably effective attorney. Tulley also argues that counsel should have objected when the prosecutor used this information to support his closing argument about Tulley's manipulative disposition. While the circuit court acknowledged that it might have sustained an objection to the prosecutor's statements, it concluded, as we do also, that in the overall conduct of the trial, the result was reliable. Strickland, 466 U.S. at 686. And finally, Tulley argues that trial counsel's performance caused him "extreme prejudice," but he never explains the nature of the prejudice or how the result of the trial would have been different if trial counsel's representation had been different. Therefore, we conclude that even if we were to assume, arguendo, that trial counsel's performance were deficient, that deficiency was not prejudicial. Accordingly, we conclude that Tulley was not denied effective assistance of counsel and we affirm the judgments of conviction and the order of the circuit court denying postconviction relief.

CONCLUSION

¶ 20. Because we conclude that (1) the court's error in conducting in camera voir dire of three prospective jurors was harmless; (2) the jury instructions and verdict forms correctly stated the applicable law; and (3) Tulley was not denied effective assistance of counsel, we affirm the judgments and order of the circuit court.

By the Court. — Judgments and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The court excused R.E after he stated that he would be inclined to accept the victim's testimony at face value because of his experiences with children as a parent and school bus driver.

       Tulley cites State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), for the proposition that when a circuit court conducts voir dire outside the presence of the defendant and his counsel reversible error occurs. However, Harris turned on the fact that, while the defendant and his counsel were not present, the circuit court had spoken at length with the entire venire, excusing several for cause but permitting others to serve on the jury that convicted Harris. We concluded that the court's error was not harmless because the defendant and his counsel were not able to observe the responses of the jurors who remained on the panel and because the jurors who were not excused might have drawn negative inferences from Harris's absence. Id. at 844-45, 601 N.W.2d at 688. In contrast to Harris, Tulley and his counsel were able to observe the responses of every potential juror except the three whom the court interviewed in camera and excused for cause. Furthermore, the potential jurors could not have drawn a negative inference from Tulley's absence because he and his counsel remained in the courtroom throughout the proceedings.

        See also State v. Derango, 2000 WI 89, ¶¶ 22-24, 236 Wis. 2d 721, 736-38, 613 N.W.2d 833, 840-41 (holding that the second step of the analysis is in actuality a due process analysis focusing on whether it is fundamentally fair not to require unanimity.)


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. N. PATRICK CROOKS, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Wilton Tye, Defendant-Respondent.
    Supreme Court

      No. 99-3331-CR.

      Oral argument September 12, 2001.

    Decided November 27, 2001.

    2001 WI 124
    (Also reported in 636 N.W.2d 473.)

      For the plaintiff-appellant the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-respondent, there was a brief by Mark D. Richards and Christy M. Hall, Racine, and oral argument by Mark D. Richards.

   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This case comes before the court on a certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000). The State appeals an order of the Circuit Court for Racine County, Emily S. Mueller, Circuit Court Judge, suppressing evidence seized pursuant to a search warrant. We affirm the order.

¶ 2. The circuit court granted the motion of the defendant Wilton Tye to suppress evidence of drugs seized during a search of his residence. The warrant authorizing the search was not supported by a statement under oath or affirmation. The circuit court suppressed the evidence seized, holding that the warrant violated the oath or affirmation requirement explicitly set forth in the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution. The Fourth Amendment to the U.S. Constitution provides, in relevant part, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." Article I, Section 11 of the Wisconsin Constitution similarly states, in relevant part, that "no warrant shall issue but upon probable cause, supported by oath or affirmation."

¶ 3. The parties agree, and we hold, that the total absence of any statement under oath to support a search warrant violates the explicit oath or affirmation requirement of both the federal and state constitutions and that the warrant therefore is constitutionally infirm. The question presented is whether evidence seized pursuant to such a search warrant must be suppressed. We conclude that the evidence seized must be suppressed.

HH

¶ 4. For the purposes of the motion to suppress, the facts are not in dispute. A 30-year veteran investigator of the city of Racine police department drafted an affidavit in support of a search warrant for a residence occupied by the defendant. The investigator presented the affidavit to an assistant district attorney for review and approval, and she approved the affidavit.

¶ 5. The investigator then presented the affidavit to Racine County Circuit Court Judge Dennis Flynn on June 28, 1999. The investigator failed, however, to sign and swear to the truth of the affidavit written in support of the search warrant and failed to give sworn testimony attesting to the accuracy of the statements in the affidavit. The circuit court issued the warrant. Neither the assistant district attorney who initially reviewed the affidavit nor the circuit court judge who issued the warrant nor the investigator detected that the investigator failed to make the allegations contained in the affidavit under oath. The warrant states that attached thereto is the "sworn affidavit which is incorporated by reference." The warrant was facially defective because no sworn affidavit was attached.

¶ 6. After the warrant was issued on June 28, 1999, the investigator copied the face of the search warrant, placed the original search warrant and attached affidavit in a file and did not review these documents again until July 1, 1999, after the search warrant had been executed and he was preparing the return on the search warrant. Heroin and other evidence were seized during the search, indicating that the residence was being used for heroin sales.

¶ 7. On July 1,1999, upon returning from executing the search warrant, the investigator realized that the affidavit supporting the warrant had not been given under oath. The investigator notified the district attorney's office and prepared a second affidavit describing the search warrant application process, his failure to sign and swear to the initial affidavit, and his discovery of these facts after he executed the search warrant. The second affidavit also stated that the contents of the initial affidavit were true. The investigator then swore to the truth of the statements contained in the second affidavit. The circuit court concluded, and the parties stipulated, that the allegations in the affidavit, if true, provided probable cause for issuance of the search warrant.

II

¶ 8. To frame our discussion, we begin by examining the historical antecedents of the oath requirement of both the federal and state constitutions. The oath or affirmation requirement relating to search warrants first appeared, albeit briefly, in England. In 1662, Parliament authorized the issuance of general warrants, known as Writs of Assistance, for collecting taxes and enforcing customs laws. The 1662 English law required officials seeking search warrants to swear an oath as a means of controlling the unfettered discretion of the searcher. In 1664, Parliament deleted the oath requirement, and in 1696 an act of William III officially applied the Writs of Assistance without the explicit oath requirement to the American colonies. Thereafter, the writs were used in the American colonies to search wherever government officials chose with nearly absolute and unlimited discretion. This power continued in the colonies well into the eighteenth century.

¶ 9. The colonists viewed the Writs of Assistance as fundamental violations of their basic right to be undisturbed in their person and property. The "[p]er-ceived abuses . . . were among the most deeply felt grievances held by the colonists against British government." Following independence, each of the state constitutions guaranteed individuals the right to be free from unreasonable searches and seizures. In 1776, the Pennsylvania Constitution made an oath or affirmation essential to the validity of a warrant. The Pennsylvania provision was the basis for the Fourth Amendment to the U.S. Constitution, which included the oath or affirmation language. The states ratified the Fourth Amendment in 1791 as part of the Bill of Rights.

¶ 10. In 1839, three years after the Organic Act of 1836 created the Territory of Wisconsin, the territorial legislature enacted Act 44, which required an oath in an application for a search warrant. When Wisconsin became a state in 1848, the declaration of rights in the Wisconsin Constitution, Article I, Section 11, required an oath or affirmation to support the issuance of a search warrant. This constitutional provision has never been amended and remains part of the Wisconsin Constitution.

¶ 11. The Wisconsin state constitutional oath provision has been reinforced by legislation. The 1848 Wisconsin legislature reiterated the need for an oath in an application for certain search warrants. The text of this statutory provision has been revised numerous times, eventually permitting telephonic search warrant applications. Nonetheless, the oath requirement has remained throughout. Most state constitutions presently include an oath or affirmation requirement for a search warrant.

¶ 12. This cursory review of the oath or affirmation requirement demonstrates the critical importance that the drafters of the federal and state constitutions have placed on the oath to support a search warrant.

¶ 13. This court has long recognized an oath or affirmation as an essential prerequisite to obtaining a valid search warrant under the state constitution. As early as 1924, this court held in State v. Baltes, 183 Wis. 545, 198 N.W. 282 (1924), that when no sworn testimony exists to support a search warrant, then the warrant is void. In Baltes, the magistrate did not administer an oath to any of the individuals providing information for the issuance of the search warrant. The Baltes court stated that "the magistrate should examine under oath the applicant for the search warrant and his witnesses ... at least so much thereof as he relied upon in issuing the warrant. . . ." The Baltes court also unequivocally stated that the "essential prerequisite to the issuance of a valid search warrant is the taking of sworn testimony from the applicant and witnesses, if any. . . ." The information provided to support the issuance of a warrant "must be sworn to." The Baltes court then suppressed the evidence because no sworn testimony existed to support the warrant. This court has repeatedly cited Baltes for the proposition that a valid search warrant requires an oath or affirmation.

¶ 14. Cognizant of the significance of the constitutional requirement of an oath or affirmation, the State acknowledges, and we agree with the State, that the "failure to swear to the information upon which a warrant is obtained cannot be dismissed as a mere failure to comply with a technicality." As the circuit court wisely stated, the oath or affirmation requirement "is so basic to the Fourth Amendment that the Court simply can't look at it as a technical irregularity not affecting the substantial rights of the defendant."

¶ 15. However, the State makes four arguments to support its position that the seized evidence should not be suppressed: First, it relies on Wis. Stat. § 968.22, which provides that no evidence shall be suppressed for a technical irregularity in the warrant if that irregularity does not affect the substantial rights of the defendant. Second, the State argues that the second sworn affidavit remedies the defect of the initial unsworn affidavit. Third, the State relies on State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993), to argue that an error in a warrant does not require suppression of seized evidence. Fourth, the State requests the court to allow the admission of the seized evidence under a good-faith exception to the exclusionary rule. We examine each of these four arguments in turn.

¶ 16. First, the State relies on Wis. Stat. § 968.22 to save the seized evidence from suppression. Section 968.22 provides that "[n]o evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant."

¶ 17. The State concedes that the constitutional requirement of an oath or affirmation is not a technicality. The State nevertheless, and perhaps in a somewhat contradictory fashion, argues that the absence of a sworn statement to support the search warrant in this case is a technical irregularity not affecting the substantial rights of the defendant and that the seizure of evidence under this warrant is admissible under Wis. Stat. § 968.22.

¶ 18. The essence of the State's position is that the failure to support an application for a search warrant by any sworn information whatsoever is "a matter of form, not substance." The State summarizes its position by stating that "while the oath is not a mere technicality, it is a matter of formality."

¶ 19. We disagree with the State. An oath is a matter of substance, not form, and it is an essential component of the Fourth Amendment and legal proceedings. The purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth. An oath or affirmation to support a search warrant reminds both the investigator seeking the search warrant and the magistrate issuing it of the importance and solemnity of the process involved. An oath or affirmation protects the target of the search from impermissible state action by creating liability for perjury or false swearing for those who abuse the warrant process by giving false or fraudulent information. An oath preserves the integrity of the search warrant process and thus protects the constitutionally guaranteed fundamental right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

¶ 20. The State's second argument is that the investigator's sworn statement, made after the warrant was issued and executed, remedies the absence of a sworn statement before the issuance of the search warrant.

¶ 21. We are not persuaded that the two affidavits are interchangeable as suggested by the State. Curing the absence of an oath or affirmation before a circuit court issues a warrant by permitting the swearing of an oath or affirmation after the warrant was executed eviscerates the oath or affirmation requirement. An after-the-fact oath or affirmation disregards the historical importance of the oath or affirmation as the basis upon which a neutral magistrate issues a warrant. The State acknowledges that its research has revealed no case law in Wisconsin or elsewhere "supporting the proposition that failure to have a warrant investigator swear to a search warrant application before approval and issuance of a warrant can be cured by the investigator's swearing to the affidavit after issuance of the warrant." We will not create such a remedy for the total absence of an oath or affirmation required by the federal and state constitutions.

¶ 22. Third, the State relies on Nicholson, 174 Wis. 2d 542, to support its claim that an unintended mistake in a search warrant does not vitiate the warrant and is not cause to suppress the evidence seized pursuant to the warrant. In Nicholson, the affidavit and the search warrant correctly described in detail the premises to be searched, but gave the wrong street address. The correct address was 1510 State Street, while the address in the warrant was 1512 State Street. The officers searched the correct premises on the basis of the detailed description in the warrant.

¶ 23. The information before the judge in Nicholson was sworn to and the search warrant met the requirement of the federal and state constitutions that the warrant "particularly" describe the place to be searched. So in Nicholson, the warrant was valid when issued. Only while executing the warrant did the police officers learn that the warrant recited the wrong address. The officers continued the search because they were on the premises correctly described in the warrant except for the street number. The mistake in Nicholson could easily be characterized as a technical irregularity not affecting the substantial rights of the defendant. But in the present case, the error was a wholesale failure in the constitutionally required process of obtaining a search warrant. In the present case the warrant was invalid when issued. Consequently, Nicholson is inapplicable.

¶ 24. Fourth and finally, the State asks this court to allow admission of the seized evidence under a good-faith exception to the exclusionary rule. This court adopted a version of the good-faith exception to the exclusionary rule in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625. However, we do not extend the good-faith exception to a warrant issued on the basis of a statement that totally lacks an oath or affirmation, as in the present case. The exclusionary rule applies when no oath or affirmation supports a search warrant; "it is plainly evident that a magistrate or judge had no business issuing a warrant."

¶ 25. For the reasons set forth, we affirm the order of the circuit court granting the defendant's motion to suppress the evidence.

By the Court. — The order of the circuit court is affirmed.

N. PATRICK CROOKS, J.

¶ 26. (concurring). I agree with the majority opinion that the search warrant, absent the oath requirement, violates both the federal and state constitutions. I write separately only to explain further why the good faith exception to the exclusionary rule does not apply.

¶ 27. As the majority opinion recognizes, we adopted the good faith exception to the exclusionary rule in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625. Majority op. at ¶ 24. After an extensive review of United States v. Leon, 468 U.S. 897 (1984), and the development of the good faith exception to the exclusionary rule in this court, we held that suppression was not necessary when police officers reasonably relied upon a warrant issued by an independent magistrate, even though the "no-knock" portion of the warrant was constitutionally infirm. Eason, 2001 WI 98, ¶ 73. In adopting the good faith exception, we also recognized, however, that the good faith exception has parameters. Id. at ¶¶ 36, 64, 66. In Leon, the United States Supreme Court set out four circumstances where even though an officer has obtained a warrant and abided by its terms, exclusion may be appropriate. 468 U.S. at 923; see also Eason, 2001 WI 98, ¶ 36. The good faith exception does not apply: (1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable. Leon, 468 U.S. at 923; see also Eason, ¶ 36.

¶ 28. The facts of this case fall squarely within the fourth exception to the good faith exception. A warrant that totally lacks an oath or affirmation is so facially deficient that reliance upon the warrant is unreasonable. An officer, who obtains or executes a. search warrant unsupported by an oath or affirmation, cannot reasonably rely on that warrant. Accordingly, the good faith exception does not apply and exclusion is appropriate.

¶ 29. Furthermore, although not dispositive in finding reliance on the warrant unreasonable, it cannot be overlooked that here, the same officer obtained and executed the warrant. In examining whether there was objectively reasonable reliance, "we look to the conduct of all the officers associated with the warrant." Eason, 2001 WI 98, ¶ 66 n.33. Here, only one officer was involved. The fact that the officer who failed to sign and swear to the truth of the affidavit is the same officer who executed the facially invalid warrant simply adds to the unreasonableness of the rebanee.

¶ 30. Although I agree with the majority that the search warrant in this case is constitutionally infirm, I would not summarily dismiss the State's argument under the good faith exception. This case presents an opportunity to clarify further the good faith exception in Wisconsin, by explaining the circumstances under which an officer may obtain and execute a warrant according to its terms, but exclusion remains appropriate because the warrant was facially deficient, making the officer's reliance on the warrant unreasonable.

¶ 31. For the foregoing reasons, I respectfully concur.

¶ 32. I am authorized to state that Justice WILLIAM A. BABLITCH and Justice JON E WILCOX join this opinion.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       The Fourth Amendment to the U.S. Constitution is applied to the states through the Fourteenth Amendment to the U.S. Constitution. Walberg v. Deisler, 73 Wis. 2d 448, 455, 243 N.W.2d 190 (1976).

       Except for the use of the singular "warrant," Article I, Section 11 of the Wisconsin Constitution is identical to the Fourth Amendment.

       Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 28 (1937).

       William W. Greenhalgh & Mark J. Yost, In Defense of the "Per Se" Rule: Justice Stewart's Struggle to Preserve the Fourth Amendment Warrant Clause, 31 Am. Crim. L. Rev. 1013, 1024 (1994).

         Id. at 1098 n.45.

       Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 53 (1937).

       4 Sanford H. Kadish, Encyclopedia of Crime and Justice 1416 (1983).

       Section 2, ch. 44, Statutes of the Territory of Wisconsin 1839.

       Wis. Stat. § 2, ch. 142 (1849): "Any such magistrate when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue search warrants ...."

       Wis. Stat. § 363.02 (1949) (search warrant issues upon "a sworn complaint or affidavit, or of oral testimony recorded by a phonographic reporter"); Wis. Stat. § 968.12(3)(a) (1983-84) (allows a judge to "issue a warrant based upon sworn oral testimony communicated by telephone, radio, or other means of electronic communication.").

       Under current law, a search warrant may be based either "upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter" under Wis. Stat. § 968.12(2), or "upon sworn oral testimony communicated to the judge by telephone, radio or other means of electronic communication" under Wis. Stat. § 968.12(3)(a).

        See Westlaw search: PR(constitution) & oath /25 affirmation /99 warrant!

        State v. Baltes, 183 Wis. 545, 552, 198 N.W. 282 (1924).

        Id.

        Id.

        Id.

        See, e.g., Walberg v. State, 73 Wis. 2d 448, 455, 243 N.W.2d 190 (1976) (citing Pflanz); State ex rel. Pflanz v. County Court, 36 Wis. 2d 550, 561, 153 N.W.2d 559 (1967); Kraus v. State, 226 Wis. 383, 385, 276 N.W. 303 (1937); Glodowski v. State, 196 Wis. 265, 268, 220 N.W. 227 (1928); Bergeman v. State, 189 Wis. 615, 617, 208 N.W. 470 (1926); Hansen v. State, 188 Wis. 266, 268, 205 N.W. 813 (1925); State v. Blumenstein, 186 Wis. 428, 430, 202 N.W. 684 (1925).

       State's Brief at 17.

       The four arguments relate to the application of the statutory and constitutional provisions to undisputed facts. These four arguments present issues of law that this court determines independently of the circuit court, but benefiting from its analysis.

       State's Brief at 15.

        Id. at 16.

        Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995).

       Lynn B. Oberlander, A First Amendment Right of Access to Affidavits in Support of Search Warrants, 90 Colum. L. Rev. 2216, 2240-42 (1990); Michael W McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1467 (1990); William W Greenhalgh and Mark J. Yost, In Defense of the "Per Se" Rule: Justice Stewart's Struggle to Preserve the Fourth Amendment's Warrant Clause, 31 Am. Crim. L. Rev. 1013, 1024 (1994); Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457, 1491 n.57 (1997).

       Wis. Stat. § 946.31.

       Wis. Stat. § 946.32.

       State's Brief at 14-15.

       U.S. Const, amend. IV; Wis. Const. art. I, § 2.

       We do not adopt the rule set forth in United States v. Richardson, 943 F.2d 547 (5th Cir. 1991), as the State urges. In Richardson, a law enforcement officer was not placed under oath when applying for a search warrant. The Richardson court held that the warrant was constitutionally infirm but fell within a good-faith exception because the error was inadvertent and not dishonest or reckless. See also United States v. Moore, 968 F.2d 216 (2d Cir. 1992) (lack of oath or affirmation did not destroy warrant's facial validity because the absence of an oath was an oversight).

        Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J., concurring in judgment). See Massachusetts v. Sheppard, 468 U.S. 981, 991 n.7 (1984) (quoting Justice White that there are circumstances when "it is plainly evident that a magistrate or judge had no business issuing a warrant.").

       Based on the Wisconsin Constitution,

        we require that in order for the good faith exception to apply, the State must show that the process used attended to obtaining the search warrant include a significant investigation and a review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or a knowledgeable government attorney.

        State v. Eason, 2001 WI 98, ¶ 63, 245 Wis. 2d 206, 610 N.W.2d 208. Accordingly, in Wisconsin, the good faith exception must be applied.within the parameters of United States v. Leon, 468 U.S. 897 (1984), as well as the additional parameters we adopted in State v. Eason, 2001 WI App 98, ¶ 63, 245 Wis. 2d 206, 610 N.W.2d 208.

       I agree with the majority's decision not to apply the good faith exception used in United States v. Richardson, 943 F.2d 547 (5th Cir. 1991) or United States v. Moore, 968 F.2d 216 (2d Cir. 1992). Both cases are distinguishable because it was the magistrate's inadvertent failure to place the law enforcement officer under oath, or require an oath, that caused the warrants in those cases to be constitutionally infirm. See Richardson, 943 F.2d at 550-551; Moore, 968 F.2d at 223. Furthermore, the officer in Moore signed the search warrant application whereas the officer in this case failed to sign and swear to the truth of the affidavit. See Moore, 968 F.2d at 220.