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THE WISCONSIN JULY 2020 PROSECUTOR A Newsletter for Wisconsin’s Prosecutors Published by the Wisconsin Department of Justice IN THIS ISSUE RECENT DECISIONS 1 - Recent Decisions This issue presents summaries from the Wisconsin Supreme 9 - WDAA Executive Board Court and Wisconsin Court of Appeals. Andrus v. Texas Meeting Minutes Milton Eugene Warren v. Michael Meisner 10 – Criminal Jury State v. Alfonso Lorenzo Brooks State v. Courtney C. Brown Instructions Committee State v. Timothy E. Dobbs 11 - Personnel Mention State v. Ryan M. Muth State v. Tavodess Matthews 11 – Special Article Section State v Hay State v. Vice 12 - Training and Conference Notes Supreme Court of the United States Contributors: Kasey Deiss, Amy Andrus v. Texas, 18-9674. By a 6-3 vote, the Court summarily reversed the Domaszek, Annie Jay, Tara Texas Court of Criminal Appeals and held that defense counsel performed Jenswold, Robert Kaiser, Jr., deficiently in the sentencing phase of this capital case. The Court remanded Joan Korb, Lisa Kumfer, Kara for an assessment of prejudice. Mele, Bryce Pierson, Michael Wisconsin Supreme Court Sanders, Dan Schweitzer, Sara Shaeffer, Family of Bella Sobah, The Wisconsin Supreme Court Has Issued An Opinion In Warren V. Meisner, Emily Thompson, 2019AP567-W. In A Unanimous Opinion Authored By Justice Ann Bradley, The Court Held That The Knight/Rothering Framework Is The Correct Methodology For Determining The Appropriate Forum For A Defendant To File A Claim That Counsel Was Ineffective After Conviction. It Withdrew All Language In State V. Starks, 2013 WI 69, That Contradicted This Conclusion. After conviction, Warren pursued a direct appeal in the court of appeals without first filing a postconviction motion in the circuit court. Later, Warren filed a 974.06 motion in the circuit court asserting that his postconviction counsel was ineffective for failing to file a postconviction motion claiming trial counsel was ineffective. The circuit court denied the motion pursuant to Starks, stating that Warren instead should have filed a habeas petition in the court of appeals, since no counsel ever represented him in the circuit court after conviction. Following the court’s direction, Warren filed a habeas petition in the court of appeals. That court denied the petition on the grounds that the correct procedural mechanism was raising the claim in the circuit court, and Warren should have appealed the circuit court’s denial of his 974.06 motion. Warren petitioned the supreme court for review. All parties case agreed that the Starks language The Wisconsin Prosecutor is published monthly misstated the law. ¶¶ 31–32. The Court reaffirmed that by: claims of ineffective assistance of counsel should be pursued in the forum where the alleged error occurred. ¶ Statewide Prosecutor 36. The problem with Starks was that the error alleged Education and Training there was that counsel failed to file any postconviction Program (SPET) Wisconsin motion in the circuit court, but Starks held that because Department of Justice counsel had only acted in the court of appeals, the proper Joshua L. Kaul procedure should have been to file a Knight petition in the Attorney court of appeals. ¶ 37. But the error was an act of omission General that occurred in the circuit court, so the proper procedure in Starks should have been to file a 974.06 motion in the It is distributed free of charge to all Wisconsin circuit court. ¶ 39. Further, some of the language in Starks district attorneys and their assistants. It is also could be construed to overrule the Knight/Rothering available free of charge upon request from other framework. ¶ 38. interested parties. The Court withdrew paragraph 4 of Starks, and “any other language throughout Starks [that] contradicts our If you wish to submit an item for publication or to receive this publication please e-mail the SPET holding today.” ¶ 38. It further withdrew from ¶ 41 Director. language suggesting that a defendant could only file a 974.06 motion after pursuing a direct appeal. The Court then noted that as habeas corpus was an Practice Pointers (Warren v. Meisner): Because equitable doctrine, it had authority to fashion a remedy Wis. Stat. § 974.06 can be used for successive attacks, for Warren. ¶ 48. Because the Court was reviewing the you will see claims of ineffective assistance of court of appeals’ denial of Warren’s habeas petition in an postconviction and appellate counsel. When you see action separate from his criminal case, it remanded the those claims, you must assess whether the circuit court case to the court of appeals with directions to remand to has jurisdiction: the circuit court, and to direct that court to construe 1. A claim that post-conviction counsel was ineffective Warren’s habeas petition as a 974.06 motion. in representing a defendant in the circuit court in Milton Eugene Warren v. Michael Meisner, 2020 WI earlier proceedings (e.g., failing to file a post- 55 (Wis. Sup. Ct., opinion issued June 11, 2020, Assistant conviction motion, or failing to raise a particular Attorney General Robert G Probst.) claim on a motion) should be brought in a Wis. Stat. § 974.06 motion filed in circuit court. State ex rel. The Wisconsin Supreme Court Has Issued An Rothering v. McCaughtry, 205 Wis. 2d 675, 556 Opinion In State V. Alphonso Brooks, 18AP1774- N.W.2d 136 (Ct. App. 1996). CR. In A Unanimous Opinion Authored By Justice 2. A claim that appellate counsel was ineffective in Kelly, The Court Held That Police Were Not representing a defendant in the appellate court must Engaged In A Bona Fide Community Caretaker be raised by a petition for writ of habeas corpus filed Function When They Towed Brooks’ Car, in the court of appeals. State v. Knight, 168 Wis. 2d Rendering The Seizure And Ensuing Inventory 509, 484 N.W.2d 540 (1992). Search In Violation Of The Fourth Amendment. 2 | Wisconsin Prosecutor Brooks was pulled over by Milwaukee County Sheriff’s deputies in a mixed residential/commercial area for Wisconsin Lawyers Assistance speeding. He was not the registered owner of the car and Program he did not have a valid driver’s license. The deputies wrote him a ticket for driving without a license and told him he The Wisconsin Lawyers Assistance Program (WisLAP) is a member service of the was free to go, but said that pursuant to department policy State Bar of Wisconsin which provides they had to tow the car because there wasn’t another confidential assistance to lawyers, judges, law licensed driver on scene to take it. Brooks asked if his students and their families in coping with girlfriend could come get it, but the officers said they alcoholism or other addictions, mental illness, or could not allow another person to come to the scene for other problems related to or affecting the practice officer safety reasons. Officers performed an inventory of law. The program is designed to help members search as the tow truck was en route and found a gun. build on their strengths and provide support through the enhancement of physical, mental and Brooks was then arrested for felon in possession. emotional health. Confidential support is Brooks’s suppression motion was denied and he pled available 24/7 by calling 800-543-2625. guilty. The tow was upheld as a reasonable exercise of the police’s community caretaking function on appeal. The Wisconsin Supreme Court Issued An Opinion In State V. Brown, 2017AP774-CR. In A 4-1 Practice Pointers (State v Alfonso Lorenzo Opinion Authored By Justice Rebecca Bradley, Brooks): The Court Held That The Fourth Amendment • A law enforcement department policy cannot create a Fourth Amendment justification for Permits Law Enforcement To Ask A Driver To seizure. Exit the Vehicle, Inquire About Weapons, And • Law enforcement has no community caretaker Request Consent To Search The Driver Even After interest in seizing a vehicle that is legally parked A Ticket Has Been Written. It Held That These and not obstructing traffic, especially when the Actions Are All “Negligibly Burdensome” And occupant is not arrested and can remain with the vehicle. Related To Officer Safety, “A Well-Established Part Of A Traffic Stop’s Mission.” Accordingly, The supreme court reversed. It held that the police The Officer Did Not Extend This Stop When He were not engaged in a bona fide community caretaker Took These Actions After Completing A Ticket For function in towing the car. First, Brooks was not arrested, Brown’s Traffic Violation, But Before Giving Him meaning he could make swift arrangements for its The Ticket And Explaining The Violation. retrieval and the car would not be left unattended A Fond du Lac officer saw a car coming from a dead- indefinitely and subject to theft or vandalism. Second, end street containing only closed businesses around 2:44 nothing suggested Brooks might not be in lawful a.m. The car belonged to a rental company. The car rolled possession of the car and since he was not arrested, he through a stop sign and the officer initiated a traffic stop. could arrange to unite it with the owner. Third, the car He saw the driver, Brown, was not wearing a seatbelt. was not impeding the flow of traffic. Fourth, it held that Brown told the officer he was going “nowhere really” and the department’s standardized policy played no role in was from Milwaukee. He claimed to have been visiting a establishing that the deputies were engaged in a friend but couldn’t provide a last name or a street address. community caretaking function. Brown also said he came from a different location than the Accordingly, the court held that there was no dead-end street the officer saw him come from.

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