author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jon E Barreau, Defendant-Appellant.

    Court of Appeals

      No. 01-1828-CR.

      Submitted on briefs March 14, 2002.

      Decided July 11, 2002.

    2002 WI App 198
    (Also reported in 651 N.W.2d 12.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Glenn C. Reynolds of Reynolds & Associates, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Sally L. Wellman, assistant attorney general.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.

       Petition to review denied 9-26-02.

   DYKMAN, J.

¶ 1. Jon Barreau appeals from a judgment convicting him of first-degree intentional homicide, robbery with use of force, and burglary while armed with a dangerous weapon, each as a party to the crime. He raises three issues: (1) whether the circuit court erred in refusing to instruct the jury on the lesser included offense of first-degree reckless homicide; (2) whether the circuit court erred in admitting other acts evidence that Barreau had committed a burglary when he was thirteen years old; and (3) whether Barreau was denied his constitutional right of confrontation when the circuit court limited his cross-examination of one of the State's witnesses.

¶ 2. With regard to the first issue, because no reasonable view of the evidence both casts reasonable doubt on the first-degree intentional homicide charge and supports a guilty verdict for first-degree reckless homicide, we conclude that a jury instruction for reckless homicide was not required. With regard to the other acts evidence, we agree with Barreau that the evidence that he committed a burglary when he was thirteen years old was not relevant and therefore should not have been admitted. However, because there is no reasonable possibility that the error contributed to the conviction, we conclude that it was harmless error. Finally, with regard to Barreau's right of confrontation, we also conclude that to the extent the circuit court erroneously limited Barreau's cross-examination, the error was harmless. Accordingly, we affirm.

BACKGROUND

¶ 3. On June 28, 1998, Jon Barreau and Jeffrey Keeran went into the residence of Robert Hansen, a friend of Barreau's father. When they left a few hours later, Hansen lay on the floor, covered in a sleeping bag, bleeding and either dead or dying, having been beaten on the head multiple times with a baseball bat and stabbed in the neck with a knife.

¶ 4. Four months later, the State charged Barreau with being party to the crime of first-degree intentional homicide in violation of Wis. Stat. §§ 940.01 and 939.05 (1995-96). In addition, Barreau was charged with robbery with use of force and a dangerous weapon in violation of Wis. Stat. § 943.32(1)(a) and (2) and armed burglary, in violation of Wis. Stat. § 943.10(2)(a), both as a party to the crime. Barreau pleaded not guilty to all charges.

¶ 5. At Barreau's jury trial, several witnesses testified about what occurred on the night that Hansen was killed. The State called Ryan Rockey, an acquaintance of Barreau, who testified that in late June 1998, he was walking through a cemetery with Barreau and Keeran, and Barreau confessed to him that he had committed a murder "a couple nights" earlier. Specifically, Barreau told Rockey that he killed "Uncle Hooter," a name Barreau called Hansen, because Hansen "was supposed to have a lot of money." Hiding two baseball bats in Keeran's pants, Barreau and Keeran knocked on Hansen's door, Hansen let them in and they talked for about an hour. Barreau took one of the bats and struck Hansen on the back of the head multiple times until the bat broke, when Keeran then used the other bat and continued striking Hansen.

¶ 6. According to Rockey, Barreau told him that he "got on top of' Hansen, held a knife to him and "asked him where the money was at." Barreau told Hansen not to move. When Hansen "twitched," Barreau stabbed Hansen in the neck. Afterwards, Barreau "cleaned up . . . for a couple hours," and then took a lock box before leaving. Rockey testified that Barreau was "nonchalant and proud" about what he did, and that Barreau told Rockey that it was his, not Keeran's idea, to take the baseball bats to Hansen's. On cross-examination, Rockey admitted that he was under the influence of LSD during the conversation with Barreau.

¶ 7. The State also called James Kremkowski, who lived with Barreau for a time. Kremkowski testified that in October 1998, Barreau told Kremkowski that, during the summer, he had driven to Madison with Keeran in order to "rob this dude" who was "a good friend of his famil[y]." Barreau "thought he had a large amount of money in the house." Barreau and Keeran took two baseball bats, which they "put. .. down their trousers," and knocked on Hansen's door. Hansen let them in and they talked for "about 45 minutes," after which "they beat him with baseball bats." Barreau hit Hansen "about 10" times. Barreau told Hansen "to stop twitching and he would live," and stabbed him in the throat when he did not stop. Barreau and Keeran covered Hansen's body and then "cleaned up their mess and all the evidence." They took twenty-eight dollars from Hansen's wallet and a twenty dollar bill from the safe. Keeran "was just kind of watching" during the attack, but he "did hit [Hansen] once with the ball bat" after Barreau threatened to kill Keeran if he refused to help.

¶ 8. Bruce Becker, a detective for the Madison Police Department, testified that in an interview with Barreau in October 1998, Barreau admitted that he had participated in beating Hansen. According to Becker, Barreau told him that he and Keeran brought two baseball bats with them to Hansen's residence, and that they had each hidden one of them in their pants. They knocked on the door, and Hansen answered and let them in. Barreau spoke to Hansen for about forty-five minutes. Barreau went into the bathroom, and when he came out, he saw Keeran striking Hansen with a baseball bat. Although Barreau was surprised, he pulled out his own bat "and struck Uncle Hooter three or four times in the head." Keeran's bat broke, so he took Barreau's bat and continued striking Hansen. Keeran stopped beating Hansen, got a knife, and stabbed Hansen in the neck. Barreau covered Hansen with a sleeping bag, cleaned up the residence and took Hansen's wallet containing twenty-eight dollars and a lock box containing twenty dollars, a will, and a few gold coins.

¶ 9. Robert Huntington, a forensic pathologist, performed Hansen's autopsy, and prepared a report of his examination. He testified that there were "10 lacerations plus some other abrasions" "all over" Hansen's head, that these were each "blunt force blow injuries," and that the injuries were consistent with having been struck by a baseball bat. All of the blows penetrated Hansen's scalp "to some degree," and had caused bleeding in Hansen's brain, which was "evidence that those injuries had in effect reached deep into that brain." Huntington concluded that "to a reasonable medical certainty, and even past, [Hansen] was beaten to death."

¶ 10. When discussing the effect of each of the blows, Huntington stated:

And I do not think it is reasonable to say that one to the exclusion of the others did a job. Yes, that one that got down deepest was able to apply more force, but good lord, he was hit a bunch of other times, and I do not think we can say with any honesty at all that those were plainly irrelevant because they didn't quite get as deep. They still were good solid hits.

In sum, Huntington testified that the type of injuries Hansen incurred were "usually" caused by multiple, rather than single blows. On cross-examination, Huntington further stated that "to say that any of the wacks that he got were irrelevant is not reasonable."

¶ 11. In addition to the injuries on Hansen's head, Huntington also observed that Hansen had sustained a broken nose, lacerations on his face, and bruises on his arms and hands. Huntington could not identify precisely when Hansen died.

¶ 12. Barreau testified on his own behalf. He testified that he and Keeran went to Hansen's because they "were both pretty thirsty" and remembered that Hansen, a friend of Barreau's father, lived nearby. They had two baseball bats with them that they had taken from Keeran's garage. Keeran kept both bats, one down each pant leg. Barreau told Keeran to "get rid of' the bats before they went inside.

¶ 13. Hansen let Barreau and Keeran in, and offered them sodas. After talking to Hansen for awhile, Barreau went to use the restroom. When he came out, Keeran was striking Hansen on the head with a baseball bat. Barreau asked Keeran, "What the fuck's going on?" Keeran did not respond and continued striking Hansen. Barreau testified that he "didn't really know what to do." Hansen grabbed for Barreau's ankle, and Barreau tried to push him away. Keeran broke his bat over Hansen's head, after which he took the other bat and continued striking Hansen "until Mr. Hansen stopped trying to get up."

¶ 14. Barreau testified that he started to move toward the back door. Keeran ran past him, and took a knife from the kitchen. Barreau saw Keeran making "a stabbing motion" toward Hansen. Keeran grabbed Barreau's shoulder, and told Barreau, "You better start cleaning this place up." Because Keeran had a bat in one hand and a knife in the other hand, Barreau complied. Barreau covered up Hansen and could still hear Hansen breathing. Keeran came out of the bedroom carrying a metal box. Keeran told Barreau to rip out the phone cord. Barreau complied "in case Mr. Hansen was going to call the cops," and then the two men left.

¶ 15. The jury found Barreau guilty of all three crimes. The circuit court denied Barreau's postconviction motion and Barreau appeals.

DECISION

A. Jury Instruction for Reckless Homicide

¶ 16. Barreau was tried for three crimes, one of which was being party to first-degree intentional homicide. At trial, Barreau requested a jury instruction for the lesser included offenses of first- and second-degree reckless homicide, but the circuit court denied the request. Barreau argues on appeal that the court erred in refusing to instruct the jury on first-degree reckless homicide.

¶ 17. Although generally the circuit court has wide discretion with respect to giving jury instructions, State v. Waites, 158 Wis. 2d 376, 383, 462 N.W.2d 206 (1990), whether the evidence required the circuit court to give an instruction on a lesser included offense is a question of law that we review de novo, State v. Jones, 228 Wis. 2d 593, 598, 598 N.W.2d 259 (Ct. App. 1999). The State does not dispute, and we agree, that reckless homicide is a lesser included offense of intentional homicide. See Wis. Stat. § 939.66(2); see also State v. Chapman, 175 Wis. 2d 231, 241, 499 N.W.2d 222 (Ct. App. 1993) ("[E]very degree of homicide is a lesser included offense of first-degree intentional homicide.") Therefore, the question is whether under the evidence presented at trial, there were reasonable grounds for both acquittal on first-degree intentional homicide and conviction on first-degree reckless homicide. See State v. Glenn, 199 Wis. 2d 575, 585, 545 N.W.2d 230 (1996). In other words, if a reasonable view of the evidence both casts reasonable doubt on the first-degree intentional homicide charge and supports a guilty verdict for. first-degree reckless homicide, then we must conclude that the circuit court erred in declining to submit jury instructions on both offenses. See State v. Muentner, 138 Wis. 2d 374, 385, 406 N.W.2d 415 (1987). In making this determination, we view the evidence in the light most favorable to the defendant. State v. Schuman, 226 Wis. 2d 398, 403, 595 N.W.2d 86 (Ct. App. 1999).

¶ 18. A person commits first-degree intentional homicide when he or she "causes the death of another human being with intent to kill that person or another." Wis. Stat. § 940.01(1). " With intent to'... means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." Wis. Stat. § 939.23(4). Because Barreau was charged as being a party to first-degree intentional homicide, the State was required to prove either that Barreau intended to kill Hansen or that Barreau intentionally aided and abetted someone else who intended to kill Hansen. See Wis. Stat. § 939.05. To intentionally aid and abet Keeran in first-degree intentional homicide, Barreau must have: (1) known that Keeran intended to kill Hansen; and (2) had the purpose to assist Keeran in committing that crime. See Wis JI — Criminal 400 (Rel. No. 32-11/94). Barreau concedes that, under this standard, the State needed to prove only that Barreau or Keeran had intent to kill Hansen in order to prove that Barreau was a party to firsbdegree intentional homicide.

¶ 19. A person commits first-degree reckless homicide when he or she "recklessly causes the death of another human being under circumstances which show utter disregard for human life." Wis. Stat. § 940.02(1). In this context, recklessness means "that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk." Wis. Stat. § 939.24(1) and (2).

¶ 20. To support his argument that the jury should have received an instruction on reckless homicide, Barreau relies on evidence that: (1) Hansen was still alive immediately after the beating; (2) "Barreau and Keeran" took the phone cord out of the wall; and (3) only two of the blows that Hansen received from the bat were sufficient to kill him. He contends that a reasonable view of this evidence could create a reasonable doubt that either Barreau or Keeran intended to kill Hansen and also permit the jury to conclude that Barreau acted recklessly under circumstances which demonstrate utter disregard for human life.

¶ 21. With regard to the evidence that Hansen was not dead when Barreau and Keeran left the house, whether or not Hansen actually was dead immediately after the beating and stabbing provides little insight into whether Barreau or Keeran purposefully caused Hansen to die or were practically certain that he would. The best argument that Barreau has in this respect is that both Barreau and Keeran believed that Hansen was still alive when they left the house and still decided not to harm him any further. That Barreau believed this is supported at least by his ripping the phone cord out of the wall to prevent Hansen from calling anyone.

¶ 22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.

¶ 23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions.

¶ 24. Barreau argues that there is evidence that at least two of the blows that Hansen received were alone sufficient to kill him. He contends that because not every blow was sufficient to cause death, this suggests that he acted recklessly rather than intentionally. We disagree. How many blows of deadly force must one inflict before it is no longer reasonable to believe that the assailant intended injury rather than death? It is well settled that when one aims and shoots a loaded gun even once at a "vital part" of another's body, the only reasonable inference is that death was intended. See State v. Kramar, 149 Wis. 2d 767, 793, 440 N.W.2d 317 (1989). Although the assailant in this case used a baseball bat and not a gun, considering the part of Hansen's body that was targeted, the number and force of blows that were used, and the stabbing of Hansen's neck with a knife, there is no reasonable view of the evidence that would support a conviction for reckless homicide rather than intentional homicide.

¶ 25. With respect to the phone cord, we do not believe that, given the circumstances of this case, the fact that either Barreau or Keeran pulled the phone cord out of the wall creates a reasonable inference that Hansen was killed recklessly rather than intentionally. If anything, it suggests even more strongly an intent to kill. Barreau writes: "[A] reasonable juror could conclude that Barreau ripped out the phone cord because he knew the victim was alive, thereby negating a finding of conscious intent that is required for a first-degree homicide conviction," and "[w]hen Barreau and Keeran fled, they yanked the telephone cord out of the wall to prevent Hansen from making outgoing phone calls and soliciting outside help."

¶ 26. We agree with Barreau that it is a reasonable inference that he and Keeran believed that Hansen was still alive when they fled the house and wanted to prevent him from calling for help. But we do not see how wanting to prevent Hansen from seeking help demonstrates recklessness rather than intent. Presumably, Barreau's argument is that he and Keeran believed that Hansen would survive and they needed to stop him from reporting them to the police. However, if Barreau and Keeran thought that Hansen would live, then they would have also realized that ripping out his phone cord would be at best a temporary barrier to outside communication and that eventually Hansen would report what Barreau and Keeran had done and they would be caught anyway. Under Barreau's view of the evidence, pulling out the phone cord would have been a pointless exercise. Although we are required to view the evidence in the light most favorable to Barreau, this does not extend to adopting unreasonable interpretations of the evidence. To the extent that pulling out the phone cord indicates anything, it is that Barreau and Keeran believed that Hansen was still alive or at least might be, but also believed he would soon die and wanted to insure that he could not seek medical treatment (or report them to the police) before he died.

¶ 27. No reasonable view of the evidence both casts reasonable doubt on the first-degree homicide charge and supports a guilty verdict for first-degree reckless homicide. Therefore, the circuit court did not err in refusing to instruct the jury on first-degree reckless homicide.

¶ 28. Wangerin v. State, 73 Wis. 2d 427, 243 N.W.2d 448 (1976), and State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), two cases upon which Barreau relies, do not suggest a different result. Both of these cases addressed only whether there was sufficient evidence to prove that the defendant acted recklessly. The question was not whether a defendant charged with a greater offense should have been given a jury instruction on a lesser included offense. Further, the facts in Wangerin involved a defendant who punched his victim, 73 Wis. 2d at 430, and Edmunds was a "shaken baby syndrome" case, 229 Wis. 2d at 71. We therefore do not view either Edmunds or Wangerin as instructive.

B. Other Acts Evidence

¶ 29. During his direct examination, counsel for Barreau asked him, "Mr. Barreau, in June of 1998 did you at any time come to Madison with the intent to rob Robert Hansen?" Barreau replied, "Never. Never would." Rather than cross-examine Barreau regarding this statement as permitted by Wis. Stat. § 906.08(2), the State asked the court for permission to introduce extrinsic evidence during rebuttal that would show that Barreau had entered a house for the purpose of stealing money in 1992, when Barreau was thirteen years old. Over Barreau's objection, the circuit court permitted the evidence, concluding that the evidence was admissible under Wis. Stat. § 904.04(2), because it was relevant to Barreau's intent to steal.

¶ 30. The State called Jason Stahelski who testified that when Barreau was thirteen years old, he asked Stahelski to skip school with him so that they could break into a house and steal money from the inside. He further testified that while they did enter the house, they did not find any money. The State also called Thomas Colby, who is a detective with the Madison Police Department. Colby testified that in 1992, he spoke with Barreau, who told Colby that he had entered a residence without permission and for the purpose of stealing $400.

¶ 31. Barreau renews his objection on appeal, arguing that the evidence was not offered for an acceptable purpose and that, to the extent it was relevant, its probative value was substantially outweighed by the danger of unfair prejudice. We review a circuit court's decision to admit evidence for an erroneous exercise of discretion. State v. Guzman, 2001 WI App 54, ¶ 19, 241 Wis. 2d 310, 624 N.W.2d 717, review denied, 2001 WI 88, 246 Wis. 2d 166, 630 N.W.2d 219 (Wis. May 8,2001) (No. 99-2249-CR). We will therefore uphold the ruling if there is a reasonable basis for it. Id.

¶ 32. Under Wis. Stat. § 904.04(2), evidence of prior bad acts "is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." However, § 904.04(2) permits use of prior bad acts for other purposes, such as proof of intent.

¶ 33. First, we reject the State's contention that the testimony of Stahelski and Colby was admissible "to rebut Barreau's testimony that he 'never would' do that and that he only went to [Hansen]'s house that night to get a drink." Although Wis. Stat. § 906.08(2) would permit the State to impeach Barreau's statement that he "never would" steal through cross-examination, § 906.08(2) expressly prohibits using extrinsic evidence of specific instances of conduct to attack a witness's credibility.

¶ 34. We also disagree with the State that the other acts evidence was admissible under Wis. Stat. § 904.04(2). As both parties recognize, the test for admitting evidence under § 904.04(2) is whether: (1) the other acts evidence was offered for an acceptable purpose; (2) the evidence is relevant under Wis. Stat. § 904.01; and (3) the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion or delay. State v. Gribble, 2001 WI App 227, ¶ 39, 248 Wis. 2d 409, 636 N.W.2d 488, review denied, 2002 WI 2, 249 Wis. 2d 580, 638 N.W.2d 488 (Wis. Dec. 17, 2001) (No. 00-1821-CR) (citing State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)). The burden is on the State to demonstrate that the test is satisfied. Sullivan, 216 Wis. 2d at 774. Assuming without deciding that the other acts evidence was offered for the acceptable purpose of showing intent, we conclude that the State has failed to show that the other acts evidence was relevant.

¶ 35. The test for relevancy is divided into two inquiries. The first question is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. Id. at 772. The second question is whether the evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence. Id.

¶ 36. With respect to the first question, the parties agree that the testimonies of Stahelski and Colby relate to Barreau's intent to steal. Intent to steal is an element of burglary and robbery, both of which Barreau was convicted. See Wis JI — Criminal 1421 (Rel. No. 39-4/2001); Wis JI — Criminal 1475 (Rel. No. 31-1/94). Barreau's intent to steal is therefore a fact of consequence. See Gribble, 2001 WI App 227 at ¶ 48.

¶ 37. With respect to the second question, the probative value of the other acts evidence depends on its nearness in time, place and circumstances to the alleged crime. Sullivan, 216 Wis. 2d at 786. "The greater the similarity, complexity and distinctiveness of the events, the stronger is the case for admission of the other acts evidence." Id. at 787. In the case before us, the alleged prior burglary took place more than six years before the night Barreau went to Hansen's residence. Although this is a significant period of time, as the State points out, this time span alone does not make the evidence of the prior conduct irrelevant as a matter of law. See State v. Plymesser, 172 Wis. 2d 583, 596, 493 N.W.2d 367 (1992); State v. Kuntz, 160 Wis. 2d 722, 744, 749, 467 N.W.2d 531 (1991); State v. Tabor, 191 Wis. 2d 482, 495, 529 N.W.2d 915 (Ct. App. 1995).

¶ 38. We must also take into consideration, however, the fact that Barreau was thirteen years old when the prior acts allegedly took place. The difference between a thirteen year old and a twenty year old is much more significant than the difference between someone who is thirty-three and someone who is forty. Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult. See Roberts v. State, 634 S.W.2d 767 (Tex. Crim. App. 1982); Edward J. Imwinklried, Uncharged Misconduct § 8.08 at 27 (1999).

¶ 39. Even where evidence is too remote, however, it may still be relevant if there is a strong similarity between the two incidents. State v. Hammer, 2000 WI 92, ¶ 33, 236 Wis. 2d 686, 613 N.W.2d 629. We do not see a strong similarity between the prior acts and the charged offenses. Like Sullivan, which also concluded that the State had failed to show that the other acts evidence was relevant, the State's comparison involves only one, or at most two other incidents, and "the factual descriptions of the incidents do not involve particularly complex or unusual facts." Sullivan, 216 Wis. 2d at 788. In fact, other than that both incidents involved intent to steal from a residence, the State demonstrates virtually no other similarities between the two.

¶ 40. To the extent that the State is requesting that we adopt a rule in which all past conduct involving an element of the present crime is admissible under Wis. Stat. § 904.04(2), we must decline. "The general policy of § 904.04(2), Stats., is one of exclusion .. . ." State v. Johnson, 184 Wis. 2d 324, 336, 516 N.W.2d 463 (Ct. App. 1994) (emphasis added). To adopt such a broad standard of relevancy would allow the exception to swallow the rule and permit parties to introduce character evidence under the guise of another purpose. However, if the other acts evidence is probative of nothing more than the defendant's propensity to act a certain way, the evidence is not admissible. See 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence, § 404.6 at 149 (2001) (citing State v. Goldsmith, 122 Wis. 2d 754, 364 N.W.2d 178 (Ct. App. 1985)). We cannot conclude that evidence that a defendant intended to steal from a residence as a child is probative of intent to steal in every future occasion where the defendant enters a residence or that the two acts are " 'so closely connected with that charge as to tend to directly show the intent characterizing the latter.'" State v. Reynolds, 28 Wis. 2d 350, 357 n.9, 137 N.W.2d 14 (1965) (quoting Baker v. State, 120 Wis. 135, 145, 97 N.W. 566 (1903)).

¶ 41. Because the alleged prior acts occurred more than six years before, when Barreau was thirteen years old, and because of the lack of similarity between the acts, we conclude that the evidence lacks probative value and the circuit court erroneously exercised its discretion in admitting the other acts evidence. We therefore need not consider the third step of the Sullivan test. See Sullivan, 216 Wis. 2d at 789.

¶ 42. We disagree with Barreau, however, that this error requires reversal. An erroneous admission of other acts evidence is subject to a harmless error analysis. State v. Thomas, 228 Wis. 2d 868, 873, 599 N.W.2d 84 (Ct. App. 1999). Under this test, Barreau is entitled to a new trial unless the State can show that there is no reasonable possibility that the error contributed to the conviction. Id. We must evaluate the error in the context of the entire trial and consider the strength of untainted evidence. Id.

¶ 43. We agree with the State that, at least with respect to the charge of first-degree intentional homicide, Barreau's alleged prior bad acts were a minor part of the prosecution's case. We are convinced that there is no reasonable possibility that evidence that Barreau was involved in a burglary when he was thirteen years old influenced the jury to find Barreau guilty of being a party to first-degree intentional homicide.

¶ 44. On its face, the evidence of the prior burglary seems more likely to have potentially contributed to at least the burglary conviction. In the context of this case, however, there is no reasonable possibility that Barreau's actions as a thirteen year old contributed to any of his convictions. The evidence regarding all three of Barreau's charges was closely tied together. The alleged purpose of killing Hansen was to steal from him. Taking the prior acts evidence out would still leave the testimony of Rockey and Kremkowski, who both testified that Barreau confessed to them that he had gone to Hansen's residence for the purpose of robbing him and then murdered him in the process. We do not believe that it is reasonable to assume that that jury would disbelieve Barreau rather than Rockey and Kremkowski regarding the homicide, burglary, and robbery based solely on testimony regarding a juvenile burglary. We therefore conclude that admitting the other acts evidence was harmless error.

C. Right of Confrontation

¶ 45. Before Ryan Rockey testified before the jury, counsel for Barreau conducted a voir dire to explore potential issues of bias. Rockey admitted that he did not come forward with information about Barreau's involvement in Hansen's death until after the State charged Rockey with forgery and drug trafficking. Counsel for Barreau asked Rockey, "Are you anticipating that your helping the State out here might help you out in those case[s]?" Rockey answered, "No." When the questioning about the pending criminal charges became more specific, Rockey invoked his Fifth Amendment privilege against self-incrimination. In response, counsel for Bar-reau requested that Rockey be prohibited from testifying because, otherwise, Barreau would be denied his right to confront Rockey about potential bias.

¶ 46. The court denied Barreau's request. It concluded that it would permit questioning regarding whether Rockey "is a close personal friend or social acquaintance of Mr. Keeran's" but that it would prohibit questions involving "the nature of any criminal activity that allegedly [Rockey and Keeran] may be engaging in." The court also prohibited "any questions regarding whether or not this witness is receiving any benefits as a result of the testimony since he's indicated that he has had no promises made to him and no inducements." Barreau now argues that the circuit court erred by "precluding] trial counsel from questioning Rockey regarding (1) his pending charges, (2) his involvement with Jeffrey Keeran in the forgery offense, and (3) his subjective expectation of favorable treatment in exchange for his testimony."

¶ 47. A Wisconsin criminal defendant's right to confront witnesses is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Wisconsin Constitution. The supreme court has held that "the confrontation rights under both constitutions are the same." State v. Burns, 112 Wis. 2d 131, 144, 332 N.W.2d 757 (1983). The right of confrontation includes the right to cross-examine adverse witnesses to expose potential bias. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Although the circuit court may limit cross-examination when it seeks only irrelevant evidence, State v. St. George, 2002 WI 50, at ¶ 15, 252 Wis. 2d 499, 643 N.W.2d 777, the Supreme Court has held that the "partiality of a witness ... is always relevant as discrediting the witness and affecting the weight of his testimony." Davis v. Alaska, 415 U.S. 308, 316 (1974) (emphasis added) (internal quotations omitted). Therefore, while reasonable limitations on "interrogation that is repetitive or only marginally relevant" is appropriate, a court may not prohibit all inquiry into the possibility of bias. Van Arsdsall, 475 U.S. at 679. The fundamental inquiry in deciding whether the right of confrontation was violated is whether the defendant had the opportunity for effective cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985); State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990).

¶ 48. Generally the decision to admit or exclude evidence is within the circuit court's discretion. State v. Williams, 2002 WI 58, at ¶ 7, 253 Wis. 2d 99, 644 N.W.2d 919. However, this discretion may not be exercised until the court has accommodated the defendant's right of confrontation. See George, 2002 WI 50 at ¶ 16 n.17 (citing State v. Johnson, 118 Wis. 2d 472, 479, 348 N.W.2d 196 (Ct. App. 1984)). Whether the limitation of cross-examination violates the defendant's right of confrontation is a question of law that we review de novo. See Williams, 2002 WI 58 at ¶ 7.

¶ 49. Barreau's right of confrontation argument potentially raises at least three issues. First, was the testimony that Barreau sought to elicit from Rockey relevant? Second, did the circuit court err in concluding that Rockey was justified in invoking his Fifth Amendment privilege? Third, if the privilege was appropriately invoked, did Barreau have an opportunity to effectively cross-examine Rockey?

¶ 50. With regard to the pending charges against Rockey and Keeran for forgery, counsel for Barreau argued before the circuit court that cross-examining Rockey in detail about these charges was necessary to demonstrate that Rockey had a bias in favor of Keeran. Specifically, counsel argued:

Well, the bias stems from if Mr. Rockey is involved with Mr. Keeran in another crime, so to speak, or another action for which he feels a reason to — it goes to show that he has reason to protect Mr. Keeran from negative consequences, that he doesn't have that reason involving Mr. Barreau. It shows an alliance between the two that clearly goes to his credibility as far as when he's saying [Keeran] said this in this case or [Barreau] said that.
My information is that the charges that are pending involve forgery, that Mr. Keeran was along when Mr. Rockey attempted to or did gain — I don't know for sure which one it was — access to his brother's account, so that Mr. Keeran was at least arguably a party to the crime. That shows a connection between those two as potential co-defendants. Even if they are not charged, that gives him a reason to protect or minimize Mr. Keeran's involvement and to emphasize somebody else's.

¶ 51. We agree with Barreau that evidence that Rockey and Keeran were involved in criminal conduct together could create an incentive for Rockey to shift the blame of the murder to Barreau rather than Keeran. Because it suggests potential bias, the evidence is relevant. See Davis, 415 U.S. at 316. On the other hand, Rockey had a "real and appreciable apprehension" that testimony regarding the pending charges could be used against him in a criminal proceeding, and therefore had a right to invoke his Fifth Amendment privilege. See State v. Hall, 207 Wis. 2d 54, 68, 557 N.W.2d 778 (1997). Even where the defendant's right of confrontation may be implicated, a witness cannot be compelled to waive his or her privilege against self-incrimination. United States v. Boyett, 923 F.2d 378, 379 (5th Cir. 1991).

¶ 52. However, when cross-examination is restricted by a witness's invocation of the Fifth Amendment, "courts must .watch vigilantly to ensure that the invocation did not effectively emasculate the right of cross-examination itself." United States v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989) (ellipses and internal quotations omitted). Therefore, when the privilege prevents a defendant" 'from directly assailing the truth of the witness' testimony,'" it may be necessary in some cases to prohibit that witness from testifying or to strike portions of the testimony if the witness has already testified. Id. (quoting United States v. Hum phrey, 696 F.2d 72, 75 (8th Cir. 1982)); see also Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) ("Striking all of the testimony of the witness may be the only appropriate remedy when refusal to answer the questions of the cross-examiner frustrates the purpose of the process.").

¶ 53. But this does not mean a defendant's right of confrontation is denied in each instance that potentially relevant evidence is excluded. The ultimate question is whether Barreau was denied the opportunity to. effectively cross-examine Rockey. When the record shows that the witness's credibility was adequately tested, the defendant's right of confrontation has not been violated. West v. State, 74 Wis. 2d 390, 402-03, 246 N.W.2d 675 (1976); State v. Robinson, 145 Wis. 2d 273, 286, 426 N.W.2d 606 (Ct. App. 1988); see also United States v. Kaufmann, 985 F.2d 884, 897 (7th Cir. 1993) ("Whether a defendant has the ability to effectively cross-examine a witness turns on whether the jury has sufficient information to make a discriminating appraisal of a witness's motive and bias.") (internal quotations omitted).

¶ 54. We conclude that Barreau had the opportunity to effectively cross-examine Rockey regarding potential bias in favor of Keeran. The circuit court permitted Barreau to question Rockey regarding his friendship with Keeran, and Barreau took full advantage of this opportunity. On cross-examination Rockey testified that he was "pretty close" to Keeran, that Keeran was one of his best friends, and that they had lived together at Keeran's parents' house. We are not persuaded that the inclusion of evidence that Keeran and Rockey may have been involved in criminal activity together would have affected the jury's appraisal of Rockey's credibility as such evidence would have been largely cumulative. Therefore, Barreau had an opportunity to effectively cross-examine Rockey regarding his bias in favor of Keeran.

¶ 55. With respect to Rockey's pending charges and his "subjective expectation of favorable treatment in exchange for his testimony," we agree with Barreau that because the right of confrontation includes the right to reveal potential bias, defendants must be permitted to cross-examine witnesses regarding motives for testifying for the State. It is generally recognized that evidence of pending charges against a witness, even absent promises of leniency, may reveal "a prototypical form of bias." See United States v. Anderson, 881 F.2d 1128, 1138 (D.C. Cir. 1989) (quoting Van Arsdall, 475 U.S. at 680); see also Kaufmann, 985 F.2d at 897-98; United States v. Beale, 921 F.2d 1412, 1424 (11th Cir. 1991). "To require evidence of an actual cooperation agreement between [the government and the witness], overlooks the inherent and independent relevance of the mere fact of a ... charge, a charge which hung over the witness' head like the sword of Damocles ... ."Anderson, 881 F.2d at 1139.

¶ 56. Despite Barreau's suggestion in his brief to the contrary, however, the circuit court did not prohibit Barreau from asking Rockey whether criminal charges were pending against him or from asking Rockey when he first provided the State with the information about Barreau's involvement in Hansen's death. For the purpose of demonstrating potential bias in favor of the State, it was only necessary that Barreau reveal that charges were in fact pending against Rockey and that it was after the complaint was issued that Rockey agreed to testify in Barreau's case. Counsel for Barreau did not ask Rockey these questions in front of the jury, either because she misunderstood the court's ruling or for a tactical reason. But the right of confrontation guarantees only an opportunity for effective cross-examination. The right is not violated when counsel chooses not to ask a question.

¶ 57. The circuit court did prohibit Barreau from asking Rockey whether he was receiving any benefits from the State in exchange for his testimony. The court reasoned that the evidence would not be "particularly probative" because Rockey had testified outside the jury's presence that he had not received a benefit. We agree that testimony from Rockey that he was not receiving a benefit from the State would not aid Barreau in demonstrating potential bias. "A reasonable jury [would not] have received a significantly different impression of [Rockey]'s credibility had [Barreau]'s counsel been permitted to pursue [her] proposed line of cross-examination." Van Arsdall, 475 U.S. at 680. Therefore, to the extent that the court erred in prohibiting this questioning, we conclude that the error was harmless.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. We note that pursuant to 1997 Wis. Act 295, effective July 1, 1998, Wis. Stat. § 940.01(1) was amended so that subsec. (1) was renumbered para. (l)(a) and para. (l)(b) was created. Under the revised numbering, Barreau would be charged under § 940.01(l)(a).

       As noted above, Barreau initially concedes in his brief that the issue is whether Barreau or Keeran had intent to kill Hansen. However, in other instances, Barreau characterizes the issue as whether Barreau only intended to kill Hansen, without considering Keeran's intent. Further, in his argument that there was sufficient evidence to require a reckless homicide instruction, Barreau states: "Barreau testified that he did not intend to kill Hansen and that he took no part in the beating."
      Barreau's emphasis on his own intent alone is confusing since he recognizes that under a party to a crime charge, that defendant's intent to kill is not determinative. See State v. Asfoor, 75 Wis. 2d 411, 430, 249 N.W.2d 529 (1977) ("[0]ne who intentionally aids and abets the commission of a crime is responsible not only for the intended crime,... but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts."); see also State v. Glenn, 199 Wis. 2d 575, 588, 545 N.W.2d 230 (1996). Further, to the extent that Barreau is arguing that there is evidence that he did not aid and abet Keeran, but rather was only a bystander, this may support a finding of not guilty but it does not support a conviction for reckless homicide. Accordingly, we cannot consider that evidence. See State v. Borrell, 167 Wis. 2d 749, 780, 482 N.W.2d 883 (1992); State v. Wilson, 149 Wis. 2d 878, 899-901, 440 N.W.2d 534 (1989). Barreau made this argument to the jury and they rejected it, and Barreau does not ask us to review that decision here.

       A preliminary question is whether the evidence is sufficient to show relevancy. State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999). The evidence need not he in the form of a conviction so long as a reasonable jury could find by a preponderance of the evidence that the defendant committed the other act. Id. Barreau does not challenge the sufficiency of the other acts evidence, so we do not consider that issue.

       The Sixth Amendment provides in part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." The Sixth Amendment applies to the states by virtue of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406 (1965).

       Article I, section 7 provides in part: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face."

       Barreau does not argue that the circuit court erred as an evidentiary matter so we do not address that issue.

       In making this determination, federal courts have also considered whether the witness's assertion of the Fifth Amendment privilege related to details of the direction examination or collateral matters, relating to credibility in general. See, e.g., United States v. Brooks, 82 F.3d 50, 54 (2d Cir. 1996); United States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993).


source: Caselaw Access Project

author: VERGERONT, PJ.

license: Public Domain

text:
    State of Wisconsin ex rel. Berrell Freeman, Petitioner-Appellant, v. Gerald Berge, Respondent-Respondent.
    Court of Appeals

      No. 01-3162.

      Submitted on briefs April 17, 2002.

    Decided July 11, 2002.

    2002 WI App 213
    (Also reported in 651 N.W.2d 881.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of the pro se plaintiff-appellant Berrell Freeman.

    On behalf of the respondent-respondent, the cause was submitted on the brief of Stan Davis, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, RJ., Dykman and Deininger, JJ.
   VERGERONT, PJ.

¶ 1. Berrell Freeman appeals the circuit court order dismissing his petition for a writ of habeas corpus seeking release from administrative confinement at Supermax Correctional Institution (SMCI) and transfer from SMCI. The circuit court construed the pleading as a petition for certiorari review of an administrative decision and dismissed it on the ground that Freeman had not alleged exhaustion of his administrative remedies. We conclude the petition does allege exhaustion of the available administrative remedies for the decision placing him in administrative confinement at SMCI, and therefore the court erred in dismissing the petition insofar as it seeks review of that decision. Insofar as the petition seeks review of the disciplinary decision at the Whiteville facility and review of the decision to transfer him to SMCI, we conclude the petition was properly dismissed for the reasons we explain below. We therefore affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 2. Freeman's petition alleges as follows: On November 30, 1999, there was a disturbance at the correctional facility in Whiteville, Tennessee, where Freeman was then incarcerated. He was charged in a disciplinary report with participating in an insurrection and related charges, and was found guilty after a hearing held on December 9, 1999. As a result, his classification was increased to maximum custody, and on December 10, 1999, he was transferred to SMCI in Boscobel, Wisconsin. Freeman appealed the decision of the hearing officer to the warden at the Whiteville facility. He contended there were a number of procedures that violated applicable regulations and his right to due process. The warden denied the appeal on January 13, 2000, by which time Freeman was already at SMCI.

¶ 3. Upon arriving at SMCI, Freeman was placed in temporary lockup (TLU). On April 19, 2000, the administrative confinement review committee (ACRC) decided to place Freeman in administrative confinement at SMCI for these stated reasons: the violent nature of his committing offense; his leadership role in the disturbance at Whiteville; and his involvement with the Gangster Disciples. On October 18, 2000, the ACRC decided to continue Freeman's placement in administrative confinement.

¶ 4. Freeman filed a complaint with the inmate complaint examiner (ICE) on May 21, 2001, asserting that his placement violated Wis. Admin. Code § DOC 303.01, which provides that the Department of Corrections (DOC) may not discipline an inmate for an incident for which the inmate was disciplined in another institution. In the box labeled "Date of Incident or Denial of Request," he wrote "ongoing." The ICE recommended dismissal of the complaint on the grounds that Freeman was placed in administrative confinement after a hearing; it is a non-punitive status; and it is not punishment for what occurred in Tennessee.

¶ 5. The reviewer adopted the ICE recommendation in a decision dated June 28, 2001. That decision advised Freeman that he had ten calendar days to appeal the decision to the Corrections Complaint Examiner (CCE). Freeman appealed on July 3, 2001, contending that he was transferred to SMCI and placed in administrative confinement as the result of a disciplinary hearing that violated his right to due process. Freeman was notified on July 20, 2001, that his appeal had been received and that, if he did not receive a decision or other notice within forty-seven working days, he could write directly to the secretary of DOC. Freeman did write to the secretary of DOC, and in a letter dated September 14, 2001, he was advised that on August 3, 2001, the CCE's "decision was to dismiss the complaint [and] [t]he Deputy Secretary has 47 working days to make her decision." As of October 1, 2001, Freeman had not received a decision from the secretary or deputy secretary of DOC.

¶ 6. The summons and petition for writ of habeas corpus in this action were filed in the circuit court on November 7, 2001. The petition asserted that because the December 9, 1999 hearing violated Freeman's right to due process, all actions taken as a result, including the decision to transfer him to SMCI and the decision to place him in administrative confinement, "must be voided."

¶ 7. Acting under Wis. Stat. § 802.05(3) (1999-2000), the circuit court reviewed the petition before any responsive filing. The court determined that relief by habeas corpus was not available to Freeman because he had an adequate remedy at law to challenge his administrative confinement — review by certiorari. Rather than dismissing the petition for that reason, the court construed it as a petition for review by certiorari. The court then analyzed whether Freeman had exhausted his administrative remedies as required by Wis. Stat. § 801.02(7)(b) and Wis. Admin. Code § DOC 310.04. Relying on Wis. Admin. Code § DOC 310.09(3), the court concluded that Freeman should have filed a complaint with the ICE within fourteen days of January 13, 2000, the date on which the warden at the Whiteville facility denied his appeal of the Whiteville hearing officer's decision. Therefore, the court dismissed the pleading under § 802.05(3)(b)4 for failure to state a claim.

¶ 8. Freeman moved for reconsideration, contending that DOC waived any time limit because the ICE accepted and acted on his complaint, and the court was therefore without authority to raise the time limit on its own. The court rejected both arguments and denied the motion.

¶ 9. The court first decided that DOC had not waived the time limit. The court construed Freeman's inmate complaint as challenging his placement at SMCI and his court petition as challenging the procedural errors of the December 9, 1999 disciplinary hearing procedures. The court reasoned that DOC did not waive the time limit for filing an inmate complaint to challenge the disciplinary decision by accepting a complaint on Freeman's SMCI placement. Alternatively, the court reasoned that, even if Freeman's inmate complaint were construed as challenging the disciplinary hearing procedures, DOC's failure to dismiss that complaint as untimely was harmless error because it did not prejudice Freeman.

¶ 10. The court also decided that it had the authority to consider whether Freeman had exhausted his administrative remedies, because he was required to do so under Wis. Stat. § 801.02(7)(b), and was required to plead that he had done so under State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 72, 586 N.W.2d 63 (Ct. App. 1998).

DISCUSSION

¶ 11. On appeal Freeman renews the arguments in his motion for reconsideration — that DOC had exercised its option not to invoke the fourteen-day time limit against him and the circuit court therefore did not have the authority to consider that time limit.

¶ 12. Resolution of these issues requires that we interpret the statutes and regulations that govern review of DOC decisions and analyze the petition to determine whether it states a claim for relief. These are all questions of law, which we review de novo. See State ex rel. Treat v. Puckett, 2002 WI App 58, ¶ 9, 252 Wis. 2d 404, 643 N.W.2d 515; Randall v. Randall, 2000 WI App 98, ¶ 16, 235 Wis. 2d 1, 612 N.W.2d 737; Smith, 222 Wis. 2d at 71. When deciding whether a petition or complaint states a claim for relief, we take all facts pleaded and all inferences that can be reasonably derived from those facts as true. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). We dismiss a petition or complaint as legally insufficient "only if it is quite clear that under no conditions can [a petitioner or] a plaintiff recover." State ex rel. Adell v. Smith, 2001 WI App 168, ¶ 5, 247 Wis. 2d 260, 633 N.W.2d 231 (citation omitted).

¶ 13. Under Wis. Stat. § 802.05(3)(b), the circuit court plainly has the authority to dismiss this action before requiring a response from the respondent if the complaint does not state a claim for relief. Freeman is required by Wis. Stat. § 801.02(7)(b) to exhaust all available administrative remedies that DOC has promulgated by rule, and he must plead satisfaction of this requirement as one component of stating a claim for relief. Smith, 222 Wis. 2d at 72, 79. Therefore, the circuit court in this case properly reviewed the petition, including the attachments, to determine whether it alleged facts from which the court could conclude that Freeman had exhausted available administrative remedies.

¶ 14. We agree with the circuit court that Freeman's inmate complaint did not challenge the procedural errors of the December 9, 1999 disciplinary hearing. Freeman does not argue that he did not have to file a complaint with the inmate complaint review system (ICRS) challenging the procedural errors at that hearing before challenging the decision in a court action. Therefore, we do not consider this issue further.

¶ 15. However, we disagree with the court's conclusion that Freeman is appealing only the decision of the Whiteville disciplinary officer that he is guilty of certain offenses. Liberally construing the petition as we are required to do, Adell, 2001 WI App 168 at ¶ 6, we are satisfied that, he is also appealing the decision to transfer him to SMCI and the decision to place him in administrative confinement at SMCI. From the petition, it appears that the decision to transfer him to SMCI was made by a program review committee (PRC) on December 9, 1999; the decision to place him in administrative confinement at SMCI was made by the ACRC at SMCI. True, the decision of the Whiteville hearing officer is related to the decisions Freeman challenges, in that he alleges that the reason for his transfer to SMCI and for placement there in administrative confinement is the decision of the Whiteville hearing officer; and he further alleges that the procedural deficiencies in that hearing preclude reliance on that decision in the transfer and placement decisions. However, the decisions, though related according to the petition, are each made by different personnel employing different standards. We conclude the petition sufficiently alleges that Freeman is appealing the PRC's decision to transfer him to SMCI and the ACRC's decision to place him in administrative confinement at SMCI. We therefore turn to the DOC regulations governing administrative review of these two decisions.

¶ 16. The ICRS is available for review of "significant issues regarding rules, living conditions, and staff actions affecting institution environment," with certain exceptions. Wis. Admin. Code § DOC 310.08(1). One exception is a PRC decision. Section DOC 310.08(2)(b). However subsec. (3) provides that "an inmate may use the ICRS to challenge the procedure used by... a program review committee." There is no exception that applies to the ACRC decision, and we address administrative review of that decision first.

¶ 17. The first step in the ICRS is filing a complaint with the ICE, and this must be done "within 14 calendar days after the occurrence giving rise to the complaint, except that the institution complaint examiner may accept a late complaint for good cause." Wis. Admin. Code § DOC 310.09(3). Freeman filed his complaint with the ICE on May 21, 2001. He described the "Date of Incident or Denial of Request" as "ongoing." It is not entirely clear from the wording of his complaint whether he is complaining about being at SMCI or being in administrative confinement or both. The ICE did not dismiss the complaint based on untimeliness, but instead recommended dismissal on the merits— that administrative confinement is not punitive — and the reviewer adopted that recommendation.

¶ 18. It is not clear from the ICE's recommended decision and the reviewer's adoption of that recommendation, both of which are attached to the petition, why Freeman's complaint was not rejected as untimely. It may be because an inmate's progress in administrative confinement must be reviewed at least every six months, Wis. Admin. Code § DOC 308.04(10), and therefore the ACRC presumably made one or more decisions to continue Freeman's administrative confinement after its decision on October 18, 2000, each of which triggered a new "occurrence" within the meaning of Wis. Admin. Code § DOC 310.09(3). Alternatively, it may be because placement in administrative confinement is considered an "occurrence" that is "ongoing," and therefore a complaint is considered timely as long as the inmate is subject to that confinement. Alternatively, the ICE may have decided that the complaint was not filed within fourteen days from the "occurrence," but Freeman had good cause for not doing so within fourteen days. In any event, it is reasonable to infer that the ICE either decided that the fourteen-day requirement was satisfied or decided to accept the complaint anyway, as the ICE has the discretion to do under § DOC 310.09(3). We therefore conclude that Freeman satisfied his obligations under the first step in the ICRS process.

¶ 19. We do not agree with the circuit court's analysis — that the ICE erred in accepting the complaint because it was untimely and the error was harmless. There is nothing in the petition or the attachments that indicates that either the ICE or the reviewer erred in accepting Freeman's complaint. First, Wis. Admin. Code § DOC 310.09(3) does not require the ICE to dismiss a complaint if it is not filed within fourteen days of the "occurrence," and nothing in the section governing the reviewer's duties requires the reviewer to do so. See Wis. Admin. Code § DOC 310.12. Second, as we have explained above, the ICE may have decided the complaint was filed within fourteen days of the "occurrence."

¶ 20. We also conclude that Freeman satisfied his obligation under the second step in the ICRS process. He appealed to the CCE within ten days of the reviewer's decision as he is required to do by Wis. Admin. Code § DOC 310.13(1).

¶ 21. The CCE must make a recommended decision to the secretary within thirty-five working days of receipt of the complaint, unless extended for cause and upon notice, and if the CCE does not do so, the decision appealed from is affirmed. Wis. Admin. Code § DOC 310.13(7). DOC "shall notify the inmate of all decisions in writing." Section DOC 310.13(7). The secretary is to make a decision based on the record within ten working days following receipt of the recommendation, although the secretary may extend the time for making a decision for cause and upon notice. Wis. Admin. Code § DOC 310.14(1). If the secretary does not make a "written decision. . . within the time limit, the finding and recommendation of the CCE shall be deemed to be the secretary's decision, and the secretary shall promptly advise the parties concerned." Section DOC 310.14(3).

¶ 22. Based on the notice provided Freeman when he filed the complaint with the CCE, and the September 14 letter from the DOC secretary's office, it appears the actual procedure is somewhat different from that contemplated by the regulations: forty-seven working days appears to be used for the entire process, with no automatic communication to the inmate relating the CCE's recommendation. However, we need not resolve this apparent discrepancy, nor the ambiguities over when, in DOC's view, the forty-seven days start running. We are satisfied that neither the regulations nor the notices Freeman received required him to wait longer than October 1, 2001, before filing a petition for review by certiorari of the decision to place him in administrative confinement. Therefore, we conclude Freeman exhausted the available administrative remedies with respect to the ACRC's decision to place him in administrative confinement at SMCI.

¶ 23. Turning to the decision of the PRC to transfer Freeman to SMCI, the petition alleges that decision was made on December 9, 1999. As we have noted above, the ICRS is not available to challenge PRC decisions, unless the challenge is to the procedure used by the PRC. Wis. Admin. Code § DOC 310.08(2)(b) and (3). We do not understand Freeman's petition to challenge the procedures used by the PRC, but rather to challenge the basis for the PRC's decision — that is, he is alleging that a decision resulting from a disciplinary hearing that denied him due process is an insufficient basis for transferring him to SMCI. However, if Freeman does intend to challenge in this action the procedures used by the PRC, we conclude the complaint he filed with the ICE cannot reasonably he read as challenging the procedures used by the PRC. This conclusion is fortified by the decision of the ICE, adopted by the reviewer: the decision did not refer to the PRC hearing but only to the ACRC hearing. Therefore, Freeman has failed to exhaust available administrative remedies with respect to procedural objections to the December 9, 1999 PRC decision.

¶ 24. With respect to Freeman's challenge to the substantive basis for the PRC decision, there are no administrative remedies available for him to exhaust. He may seek review by certiorari directly from the PRC decision. We will assume without deciding that, since he was not a prisoner within the meaning of Wis. Stat. § 893.735(2) at the time of the December 9, 1999 PRC decision, the time limit for appealing that decision is six months, not forty-five days. However, six months from December 9, 1999, has long passed. We therefore affirm the court's dismissal of Freeman's petition insofar as Freeman seeks review of the December 9, 1999 PRC decision transferring him to SMCI.

¶ 25. In summary, we conclude that the petition fails to allege exhaustion of the ICRS with respect to the Whiteville disciplinary decision, and Freeman does not argue that the ICRS was not available to review that decision. Therefore, we affirm the circuit court order dismissing the petition insofar as it seeks review of that decision. We also conclude that the petition alleges exhaustion of the available administrative remedies for review of the ACRC decision placing him in administrative confinement at SMCI. Therefore, we reverse the circuit court order dismissing the petition insofar as it seeks review of that decision. Finally, we conclude that the petition fails to allege exhaustion of the available administrative remedies with respect to any procedural challenges to the December 9,1999 PRC decision transferring him to SMCI, and that the petition for certiorari review of the substantive basis of that decision is untimely. Therefore, we affirm the circuit court order dismissing the petition insofar as it seeks review of that PRC decision.

By the Court. — Order affirmed in part; reversed in part and cause remanded.

       Attached to the petition are various documents that we treat as part of the petition.

       WisConsin Stat. § 802.05(3) provides in part:
      (3) (a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02(7)(a) 2.
      (b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:
      1. Is frivolous, as determined under s. 814.025(3).
      2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
      3. Seeks monetary damages from a defendant who is immune from such relief.
      4. Fails to state a claim upon which relief may he granted.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       WisConsin Stat. § 801.02(7)(b) provides in part:
      (b) No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certio-rari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule....
      WISCONSIN Admin. Code § DOC 310.04 provides in part:
      Exhaustion of administrative remedies. Before an inmate may commence a civil action or special proceedings against any officer, employe or agent of the department in the officer's, employe's or agent's official or individual capacity for acts or omissions committed while carrying out that person's duties as an officer, employe or agent or while acting within the scope of the person's office, the inmate shall file a complaint under s. DOC 310.09 or 310.10, receive a decision on the complaint under s. DOC 310.12, have an adverse decision reviewed under s. DOC 310.13, and be advised of the secretary's decision under s. DOC 310.14.

       The court concluded that the other three grounds for dismissal under Wis. Stat. § 802.05(3)(b) were not applicable.

       The court relied on Wis. Admin. Code § DOC 303.87 which provides:
      Harmless error. If staff does not adhere to a procedural requirement under this chapter, the error is harmless if it does not substantially affect a finding of guilt or the inmate's ability to provide a defense.
      Although we explain later in this decision other reasons why the court's harmless error analysis was incorrect, we also observe that Wis. Admin. Code § DOC 303.87 applies only to procedural requirements "under this chapter." "[T]his chapter" is "Chapter DOC 303 — Discipline." Therefore, § DOC 303.87 does not apply to the ICRS, which is established in Wis. Admin. Code ch. DOC 310 — Complaint Procedures.

       In State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 71, 586 N.W.2d 68 (1988), we considered the circuit court's denial of a prisoner's petition to proceed in forma pauperis under Wis. Stat. § 814.29 (1997-98). We recognize that at least one federal circuit has stated that a prisoner's failure to exhaust administrative remedies, at least absent a finding that the failure to exhaust permanently bars the suit, does not constitute failure to state a claim under a federal statutory provision similar to Wis. Stat. § 802.05(3)(b), or under the federal "three strikes" provision that is similar to Wis. Stat. § 801.02(7)(d). Snider v. Melindez, 199 F.3d 108, 112, 115 (2nd Cir. 1999). We need not examine here whether the Snider reasoning is persuasive because (1) if Freeman has failed to exhaust administrative remedies, the time limits are such that he cannot now cure that, and (2) we are not dismissing the entire petition.

       Wis. Admin. Code § DOC 310.08(3) provides that after exhausting appeals of disciplinary decisions under Wis. Admin. Code §§ DOC 303.75 or 303.76, an inmate may use the ICRS to challenge the procedure used by the adjustment committee or hearing officer. Since Freeman does not argue that the ICRS is not available for this purpose when the disciplinary hearing took place at an out-of-state facility, we do not address this issue.

       Freeman alleges: "On December 9, 1999 [he] was PRC'd to SMCI solely because he was found guilty at the procedurally defective hearing of December 9,1999 .. . [a]nd his custody was raised to Maximum."

       The disciplinary decision was made by a hearing officer employed by Whiteville, presumably based on the disciplinary code of that institution. The PRC was apparently a committee made up of personnel at Whiteville that recommended changes in classifications and institutional placement to the DOC classification chief, applying Wis. Admin. Code ch. DOC 302. See Treat v. Puckett, 2002 WI App 58, ¶ 7 n.4, 252 Wis. 2d 404, 643 N.W.2d 515 (ch. DOC 302, which governs program review procedures, has been amended effective February 1, 2002, to expressly apply to all facilities that DOC contracts with for services to inmates, see Wis. Admin. Code § DOC 302.03(10) (Register, Jan. 2002, No. 553)). Decisions on administrative confinement at SMCI are made by a committee appointed by the warden of SMCI, Wis. Admin. Code § DOC 308.03(1), and are governed by Wis. Admin. Code ch. DOC 308.

       WISCONSIN Admin. Code § DOC 310.08(3) also provides that before doing so the inmate must "exhaustG ..'. the appeal in s. DOC 302.19." The only appeal provided for in § DOC 302.19 (Register, June 1994, No. 462) is for appeals of PRC decisions on program assignments. See § DOC 302.19(9).

       Under Wis. Admin. Code § DOC 310.12(1), the ICE makes a written recommendation to the reviewing authority and the reviewing authority makes a decision "based on the record within 5 working days following receipt of the recommendation unless extended for cause and upon notice to all interested parties."

       Wisconsin Stat. § 893.735 provides in part:
      Action by prisoner contesting a governmental decision. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.
      (2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.
      Since Wis. Stat. § 893.735 incorporates the definition of "prisoner" set forth in Wis. Stat. § 801.02(7)(a)2, a person who is incarcerated in an out-of-state facility is not bound by the forty-five-day time limit. State ex rel. Frohwirth v. Wisconsin

        Parole Comm'n, 2000 WI App 139, ¶ 6, 237 Wis. 2d 627, 614 N.W.2d 541. In the absence of this statute, the common-law time limit of six months would apply. See Smith, 222 Wis. 2d at 79.


author: VERGERONT, EJ.

text:
    Scott R. Bunker, Plaintiff-Respondent, v. Labor and Industry Review Commission, Defendant-Appellant, David C. Anderson, Defendant.
    Court of Appeals

      No. 01-3441.

      Submitted on briefs May 13, 2002.

    Decided July 11, 2002.

    2002 WI App 216
    (Also reported in 650 N.W.2d 864.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David B. Nance oí Labor and Industry Review Commission.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert C. Howard, III, Janes-ville.
    Before Vergeront, RJ, Dykman and Roggensack, JJ.
   VERGERONT, EJ.

¶ 1. The Labor and Industry Review Commission (LIRC) appeals an order reversing its determination that Scott Bunker was ineligible for unemployment insurance benefits under Wis. Stat. § 108.04(5) (1999-2000) because Bunker had been discharged for misconduct. The circuit court reversed LIRC's decision upon concluding that Bunker's right to procedural due process was violated because the administrative law judge (AL J) was biased and the procedures were unfair. LIRC contends that Bunker waived all procedural and evidentiary objections; that even if we consider his objections, there were no errors; and that it correctly decided Bunker was discharged for misconduct. We choose to decide whether the hearing comported with due process and we conclude that it did. We do not address other procedural or evidentiary objections because we conclude Bunker waived them by not making them at the hearing or before LIRC. Finally, giving great weight deference to LIRC's decision, we conclude LIRC correctly determined that Bunker was discharged for misconduct. We therefore reverse the order of the circuit court and remand with instructions to enter an order affirming LIRC's decision.

BACKGROUND

¶ 2. Bunker worked approximately five years as a floor mechanic for Anderson Floor Service, owned by David Anderson. Anderson discharged Bunker after an incident involving a customer, Brian Smith, who was having the floors of his residence refinished. The incident arose out of Smith's request that Bunker remove company-generated garbage from Smith's residence. An initial determination in connection with Bunker's unemployment benefits concluded that Bunker was discharged for "misconduct" over the garbage removal incident and arguing with a customer, and as a result, Bunker was ineligible for unemployment benefits. Bunker requested a hearing before the ALJ.

¶ 3. Based on the evidence taken at the hearing, the ALJ made the following findings. Bunker had received a letter from Anderson clarifying the employer's policy with respect to garbage generated by the company at a customer's residence. Under the policy, Bunker was to discuss trash pickup with the customer and place as much of the company's garbage as possible at the curb for pickup. Bunker was warned that failure to follow the policy might result in termination. Bunker had not discussed garbage pickup with Smith and had failed to take two garbage bags to the curb for pickup. When Bunker arrived the next day, Smith asked that Bunker dispose of the two bags of garbage that were not picked up. Bunker questioned whether Smith knew how the municipality's garbage collection worked and did not agree to take the trash with him. When Smith became angry and asked that Bunker take the garbage, Bunker told him to "Get out of his face" and then left the jobsite without performing any work; as he was leaving, he called Smith an "asshole." Bunker did not notify his employer of the situation, but Smith complained to the employer.

¶ 4. The ALJ determined that Smith's testimony was credible and Bunker's testimony was "self-serving and not credible." In addition, the ALJ found that Bunker had failed to follow the garbage removal policy and left the jobsite without informing Anderson that the customer was upset. Therefore, the ALJ determined Bunker's behavior with Smith "evinced a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer has a right to expect." In addition, the ALJ found Bunker had been previously warned that such incidents could result in termination. The ALJ concluded the discharge was for misconduct connected with Bunker's employment.

¶ 5. The following events during the hearing are relevant to this appeal. In making the findings, the ALJ heard testimony of the incident from Anderson, Bunker, and Smith. Both Bunker and Anderson appeared at the hearing and were pro se. Smith was not present at the hearing and the ALJ took his testimony over the telephone. At no time did Bunker object to Smith's testimony by telephone, and Bunker was given the opportunity to cross-examine Smith.

¶ 6. At the hearing, Anderson testified that he was not present at Smith's residence during the incident, but went to his home soon thereafter and obtained Smith's version of events. Anderson stated he could not recall what Smith told him; however he indicated he did write a brief summary of Smith's account of the incident. In addition, he had written a detailed summary of notes he took during an interview of Smith the day after the incident. Anderson explained that he had presented this summary of the incident to Smith, who signed it as an accurate description of the events. When Smith was reached by telephone during the hearing, he did not have a copy of Anderson's detailed summary in front of him. After the ALJ described the summary to him, Smith testified it was the document he had signed and it was a true and accurate description of the events. Bunker was given the opportunity to disagree with any statements in Anderson's summary of events, which he did.

¶ 7. Anderson also presented a December 1999 letter from Anderson to Bunker concerning garbage pickup, which Bunker acknowledged he had received. The ALJ gave Bunker an opportunity to object to the receipt into evidence of both this letter and Anderson's summary of Smith's statement. Bunker indicated he had no objections and the court received both. At the close of the hearing, Bunker agreed that the ALJ had given him an opportunity to present evidence that led to his discharge and that if she had limited the evidence, she at least gave a reason why.

¶ 8. In cross-examining Anderson, Bunker attempted to ask him about a conversation Bunker had with Anderson's wife on whether she thought Bunker handled the situation properly. The ALJ determined that this conversation was irrelevant because Anderson's wife did not make the decision to discharge Bunker.

¶ 9. Still acting pro se, Bunker appealed the ALJ's decision to LIRC. Bunker's letter of appeal simply stated, "This letter is an appeal to the decision issued by the [ALJ] and requests [your] review"; Bunker's appeal letter did not object to any procedure used by the ALJ. LIRC adopted the ALJ's findings of fact and conclusion as its own.

¶ 10. Bunker appealed LIRC's decision to the circuit court. Represented by counsel, Bunker argued that the findings of fact did not support a determination of misconduct and that the ALJ deprived Bunker of his right to procedural due process by calling Smith without prior notice and by not permitting Bunker to cross-examine Anderson' on ulterior motives he may have had for Bunker's termination.

¶ 11. The circuit court reversed LIRC's decision. It concluded that the hearing before the ALJ "was so lacking in fundamental procedural fairness as to deprive [Bunker of] the right to a meaningful hearing." The court determined the ALJ was biased because the ALJ: (1) decided without prior notice to Bunker to0call and question Smith over the telephone, with the result that the ALJ could not observe Smith's demeanor; (2) allowed Anderson to relate what Smith said to him about the incident; (3) admitted Anderson's detailed summary of Smith's statement into evidence; and (4) did not permit Bunker to question Anderson about Bunker's conversation with Anderson's wife.

DISCUSSION

¶ 12. On appeal, LIRC contends that Bunker waived his claims of procedural and evidentiary error by not raising them before the ALJ and, alternatively, that there were no errors. LIRC also asserts the findings are supported by credible and substantial evidence and those findings support the conclusion of misconduct.

¶ 13. In deciding an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court. Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993), aff'd, 184 Wis. 2d 645, 516 N.W.2d 730 (1994).

¶ 14. We first consider whether Bunker waived his right to judicial review of these claims of procedural and evidentiary error by the ALJ: taking Smith's testimony by telephone without prior notice to him, permitting Anderson to testify about what Smith had told him, admitting into evidence Anderson's hearsay summary of events, and not allowing Bunker to question Anderson about what Anderson's wife told Bunker. Bunker acknowledges he did not make any objections on these points during the hearing or raise them before LIRC. Nevertheless, he contends, these errors violated his right to procedural due process and we should therefore review them.

¶ 15. It is settled law that to preserve an issue for judicial review, a party must raise it before the administrative agency. State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 55, 251 Wis. 2d 484, 628 N.W.2d 376. Judicial review of an administrative agency decision contemplates review of the record developed before the agency. Id. Ordinarily a reviewing court will not consider issues beyond those properly raised before the administrative agency, and a failure to raise an issue generally constitutes a waiver of the right to raise the issue before the reviewing court. Id. However, this rule is one of administration, not of power, and therefore the reviewing court has the power to decide issues that were not raised before the administrative agency. Id. at ¶ 56 n.17.

¶ 16. Where all the necessary facts are of record and the issue is a legal one of great importance, reviewing courts may choose to decide that issue. Id. at ¶ 56. The principle behind this exception to the waiver rule is that the reviewing tribunal decides a legal issue on undisputed facts de novo, and therefore it is not essential to the court's review that the agency had an opportunity to address the issue.

¶ 17. On the other hand, when objections to evidence or procedure are not made before the fact-finding tribunal, the trier of fact does not have the opportunity to correct possible errors. See State ex rel. Olson v. City of Baraboo Joint Review Bd., 2002 WI App 64, ¶ 23, 252 Wis. 2d 628, 643 N.W.2d 796. Also, when the objections, if made to the trier of fact, would have called for the exercise of discretion, the appellant is in effect asking the reviewing court to exercise its discretion, when that is exclusively the role of the trier of fact. See Wisconsin Assoc. of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980). Although the reasons for applying the waiver rule strictly to the failure to object to evidence and procedure have developed in the context of an appellate court reviewing a trial court, we consider them equally applicable to a court reviewing an administrative agency's decision.

¶ 18. In this case, we choose to review Bunker's claims of error only to determine whether the hearing before the ALJ violated his right to procedural due process, as he claims. Since this presents a question of law, our review is de novo. Tateoka v. City of Waukesha Bd. of Zoning Appeals, 220 Wis. 2d 656, 668-69, 583 N.W.2d 871 (Ct. App. 1998).

¶ 19. The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34 (Ct. App. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). A fair and impartial decision maker at the hearing is a necessary component of procedural due process. See Guthrie v. WERC, 111 Wis. 2d 447, 454, 331 N.W.2d 331 (1983). There is a presumption of honesty and integrity in those serving as adjudicators in state administrative proceedings. Nu-Roc Nursing Home, Inc. v. DHSS, 200 Wis. 2d 405, 415, 546 N.W.2d 562 (Ct. App. 1996).

¶ 20. Our review of the record and the regulations governing hearings before the ALJ satisfies us that the procedures were fair, were consistent with the applicable regulations, and the ALJ did not demonstrate bias.

¶ 21. Under Wis. Stat. § 108.09(5)(a), unemployment insurance appeals are governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure. Under LIRC's rules, telephone hearings are authorized in whole or in part. Wis. Admin. Code § DWD 140.11(1). The ALJ has the responsibility to develop the facts by calling and examining any witness the ALJ deems necessary, Wis. Admin. Code § DWD 140.15(2), and to secure the facts in as direct and simple a manner as possible, Wis. Admin. Code § DWD 140.16(1). Each party must be given the opportunity to examine and cross-examine witnesses, and the ALJ may limit the cross-examination so as not to unduly burden the record. Section DWD 140.15(1). There is no regulation requiring that the employer provide the employee with a list of potential witnesses or the exact testimony a witness will provide. Finally, hearsay evidence is admissible at hearings if it has reasonable probative value; however, no issue may be decided solely on hearsay evidence, unless admissible under Wis. Stat. ch. 908. Section DWD 140.16(1).

¶ 22. The record demonstrates that the ALJ acted within the scope of her authority under these statutes and rules in deciding to call Smith by telephone, questioning Smith, and limiting the cross-examination of Anderson to facts the ALJ considered relevant — the incident concerning Smith and Anderson's garbage removal policy. Bunker had the opportunity to present witnesses and evidence, cross-examine Anderson's witnesses on the subjects the ALJ considered relevant, and object to evidence. Anderson's summary of events as related by Smith could properly be admitted under Wis. Admin. Code § DWD 140.16(1) even if hearsay, because it had reasonable probative value and was not the sole basis for the ALJ's decision in that the ALJ also relied on Smith's testimony.

¶ 23. We are satisfied that the ALJ was not biased and that Bunker had a meaningful opportunity to present his case. Insofar as Bunker is asserting claims of procedural and evidentiary error that do not implicate his right to procedural due process, we apply the waiver rule and do not discuss them further.

¶ 24. Bunker argues that the waiver rule should not apply at all because he was appearing pro se. We decline to make an exception solely for that reason. Many claimants appear pro se at unemployment insurance appeals, as do employers. The broad responsibilities of the ALJ under Wis. Admin. Code § DWD 140.15(2) were, no doubt, established with this in mind. Allowing claimants and employers to raise issues for the first time in the reviewing court, simply because they proceeded pro se before the agency, would seriously undermine the intended role of the administrative agency as the primary decision maker on unemployment benefits claims.

¶ 25. We now consider whether Bunker's conduct constituted "misconduct" under Wis. Stat. § 108.04(5). This presents a question of law, which we review de novo. Charette v. LIRC, 196 Wis. 2d 956, 959, 540 N.W.2d 239 (Ct. App. 1995). Although we are not bound by an agency's conclusions of law, we may accord them varying degrees of deference. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996).

¶ 26. LIRC's determination whether an employee's conduct constitutes misconduct within the meaning of Wis. Stat. § 108.04(5) is entitled to great weight deference. Lopez v. LIRC, 2002 WI App 63, ¶ 16, 252 Wis. 2d 476, 642 N.W.2d 561. Under the great weight standard, we uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if we conclude another interpretation is more reasonable. Id. at ¶ 10. We therefore must determine whether LIRC's decision in this case is reasonable. The burden of establishing that the agency's interpretation is unreasonable is on the party seeking to overturn the agency's decision; the agency does not have to justify, its interpretation. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995).

¶ 27. "Misconduct" is not defined in Wis. Stat. ch. 108; however, in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941), the supreme court set forth the following definition:

[T]he intended meaning of the term "misconduct," as used in sec. [108.04(5)], Stats., is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

¶ 28. Bunker first argues that a violation of the garbage disposal policy alone does not amount to misconduct for purposes of unemployment benefits eligibility, even if the violation may properly result in termination. While we agree that violation of a work rule that justifies discharge does not necessarily amount to misconduct, Consolidated Constr. Co. v. Casey, 71 Wis. 2d 811, 819-20, 238 N.W.2d 758 (1976), here there was in addition profane language directed at a customer.

¶ 29. Bunker next argues that his use of an obscenity is not proof of misconduct when considered in the overall context of the altercation with Smith, and that an employee cannot be fired for misconduct if he or she responds to verbal abuse from a customer with a strongly worded response. We disagree with Bunker's contention, given LIRC's findings of fact.

¶ 30. The weight and credibility of the evidence are for LIRC to evaluate. Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 1997). We may not substitute our judgment for LIRC's on issues of fact. Id. We uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Wis. Stat. § 102.23(6); Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996). LIRC did not find that Bunker was provoked by the verbal abuse of a customer, but rather found that Bunker called Smith an "asshole" in response to an exchange concerning the removal of garbage. Smith's testimony and Anderson's garbage removal policy support these findings of fact. Essentially, LIRC did not find Bunker's version of events credible, and that was LIRC's call to make.

¶ 31. LIRC could reasonably decide that the unprovoked use of profane language directed at a customer was not due to inadvertence, ordinary negligence, or a good-faith error in judgment. It also is reasonable/ fo interpret "the standard of behavior which the employer has a right to expect" from its employees as encompassing the expectation that an employee will not be antagonistic and disrespectful toward a customer. We therefore conclude LIRC could reasonably view Bunker's violation of the work rule, together with his use of profane language directed at a customer, to constitute misconduct within the meaning of Boynton Cab Co.

¶ 32. LIRC's decision is reasonable in all other respects. LIRC's interpretation of "misconduct" does not directly contravene the statute or the definition set forth in Boynton Cab Co. In addition, LIRC considered the facts presented, in light of the principles developed in its prior decisions, and came to a reasonable conclusion. Therefore, we reverse the circuit court's order and direct that it enter an order affirming LIRC's decision that Bunker's conduct leading to his discharge constituted "misconduct" under Wis. Stat. § 108.04(5).

By the Court. — Order reversed and cause remanded with directions.

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

       Anderson informed the ALJ that while Smith was not present at the hearing, Smith had said he would answer any questions if somebody called him. When the ALJ asked if there was any reason Anderson did not ask Smith to come to the hearing, Anderson responded:
      He's been put through a lot in this situation .. . and all he wanted to have done was his floor refinished. He didn't want to get mixed up in a hassle of major proportions which this seems to be turning into.
      But he was very cooperative about describing events to me and giving me a signature when [I] asked for it, he's been very cooperative.

       On the detailed summary, Anderson noted that "this version is exactly the same as he[, Smith,] told me about 10:15 a.m. the morning of the incident."

       Wisconsin Stat. § 108.09(5)(a) provides:
      Except as provided in s. 901.05, [applying to certain medical test results,] the manner in which claims shall he presented, the reports thereon required from the employee and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties.

       Wisconsin Admin. Code § DWD 140.11(1) provides in part:
      (1) The department may conduct hearings in whole or in part by telephone when it is impractical for the department to conduct an in-person hearing, when necessary to ensure a prompt hearing or when one or more of the parties would be required to travel an unreasonable distance to the hearing location.

       Wisconsin Admin. Code § DWD 140.15(2) provides in part:
      (2) The administrative law judge has the responsibility to develop the facts and may call and examine any witness that he or she deems necessary and may also determine the order in which witnesses are called and the order of examination of each witness.

       Wisconsin Admin. Code § DWD 140.16(1) provides:
      (1) Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The administrative law judge shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible, but irrelevant, immaterial and repetitious evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.

       Wisconsin Admin. Code § DWD 140.15(1) provides: "Each party shall be given an opportunity to examine and cross-examine witnesses. The administrative law judge may limit the cross-examination of witnesses so as not to unduly burden the record.

       Wisconsin Stat. § 108.04(5) provides in part:
      (5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

       There are three levels of deference granted to agency decisions: great weight deference, due weight deference, and de novo review. Knight v. LIRC, 220 Wis. 2d 137, 147, 582 N.W.2d 448 (Ct. App. 1998).

       Generally we give great weight deference when: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the agency is long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Lopez v. LIRC, 2002 WI App 63, ¶ 10, 252 Wis. 2d 476, 642 N.W.2d 561.