TRIAL PROCEDURES

Updated 1/28/04


Adjournment, to Allow State to Prepare for Defense Expert
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶50. We disagree with Wright that his compliance with the discovery provisions of Wis. Stat. § 971.23 trumped the trial court's ability to exercise its discretion to grant a continuance order if the circumstances otherwise called for such action. Such a holding would significantly curtail a trial court's ability to exercise the broad grant of superintending authority over the mode of the trial as conferred by Wis. Stat. § 906.11. Here, the revelation of Van Rybroek as a defense expert witness, although in compliance with § 971.23, nonetheless came at the eleventh hour before trial. Moreover, through no fault of its own, the State had not had an opportunity to review the underlying data upon which Van Rybroek's testimony would rely. Under those circumstances, the trial court was understandably concerned that the search for the truth might well be curtailed and an unfair trial might result. As such, the court properly exercised its discretion by granting a continuance to the State.
Amendment of Charge at Close of Case to Conform to Proof
State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. Derango, 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether the child enticement charge was properly amended, at the close of evidence, to allege additional mental states under §§ 948.07(3) and (4).
Holding: Under § 971.29(2), a charge may be amended to conform to the proof, so long as "the amendment does not change the crime charged and the alleged offense remains the same and results from the same transaction," ¶50; because the amendment merely added other statutorily defined possible mental states, closely related to that originally charged, and therefore "did not fundamentally change the legal or factual parameters of the case at all: Derango cannot possibly have been prejudiced, and the circuit court did not err by permitting the amendment." ¶51.
Amendment of Information at Close of Case
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place "which is resorted to by persons using controlled substances" to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
Holding: An amendment to the charge must satisfy two tests: it must not be "wholly unrelated" to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom's statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.
Closed Proceeding -- SVP
State v. Steven J. Burgess, 2002 WI App 264, PFR granted 1/14/03
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: There is neither a statutory nor constitutional basis for closing 980 proceedings. Although a 980 respondent is considered a "patient" under ¤ 51.61(1), the right to a closed proceeding is not within the rights enumerated in that section. ¶33. Nor does the failure to afford such a right to a 980 respondent violate equal protection:
¶34. In addition, we determine the legislature's failure to afford these same rights to persons committed under Wis. Stat. chs. 980 and 51 does not violate equal protection. Equal protection does not require that all persons be dealt with identically, but does require that any distinction have some relevance to the purpose for which the classification is made. Williams, 2001 WI App 263 at ¶11. In comparing ch. 980 to other involuntary commitment schemes, we apply a "strict scrutiny" standard without deciding that its application is required. Id. This standard requires the State to prove the classification is necessary to promote a compelling government interest. Id. Burgess argues denying confidentiality does not advance ch. 980's goals of treatment and protection of the public. We disagree.

¶35. We determine there are compelling interests in affording closed hearings to persons committed under Wis. Stat. ch. 51, but not to those under Wis. Stat. ch. 980. These interests are the privacy of persons committed under ch. 51 and ch. 980's goal of protecting the public. Closed proceedings under ch. 51 advance the privacy interests of those being committed. The actions of persons committed under ch. 51 are often not criminal, not necessarily a matter of public record, nor always violent toward others. Persons undergoing ch. 980 commitments are convicted violent sex offenders. The legislature has concluded sexually violent persons are more dangerous than those committed under ch. 51. Williams, 2001 WI App 263 at ¶13. By allowing open commitment proceedings, the legislature advances ch. 980's goal of protecting the public by allowing it access to information about dangerous persons. Equal protection does not require confidentiality for persons committed under ch. 980.

(For a discussion of diminished confidentiality rights of NGI subjects -- civilly committed but for underlying criminal conduct -- see In re Mental Condition of Billy Jo W., 182 Wis.2d 616, 514 N.W.2d 707 (1994).)
Closing argument -- facts not in record.
State v. Tee & Bee, Inc., 229 Wis. 2d 446, 600 N.W.2d 230 (Ct. App. 1999).
For Tee & Bee: Jeff Scott Olson.
Holding: The prosecutor's closing argument held improper for arguing facts not in the record: "We also caution the prosecutor against using, in closing argument, evidence that was not a part of the record and which constituted evidence that Super Video was prohibited from introducing. The prosecutor argued to the jury that comparable materials were not available in the community. This information was not contained in the record and, therefore, was improper. See State v. Neuser, 191 Wis.2d 131, 142, 528 N.W.2d 49, 53-54 (Ct. App. 1995). Further, the prosecutor argued exactly what Super Video was not allowed to put into evidence, which was also improper. See State v. Albright, 98 Wis.2d 663, 677, 298 N.W.2d 196, 204 (Ct. App. 1980)."
Closing Argument -- Waiver of objection.
State v. Ludwig Guzman, 2001 WI App 54
For Guzman: Robert E. Haney
ISSUE: Whether defendant waived any objection to the prosecutor’s closing argument due to failure to make a timely objection.
HOLDING: “¶25 The comments that Guzman challenges on appeal occurred during the prosecutor’s closing argument to the jury. Guzman did not object during the closing. Instead, he gave the defense closing to the jury, and allowed the prosecutor to give rebuttal closing. Only then did Guzman object to the prosecutor’s comments and move for a mistrial. In order to preserve this objection, Guzman was obligated to make a contemporaneous objection and move for a mistrial. See State v. Goodrum, 152 Wis. 2d 540, 549, 449 N.W.2d 41 (Ct. App. 1989). The purpose of the contemporaneous objection is to allow the trial court to correct any alleged error with minimal disruption. See State v. Boshcka, 178 Wis. 2d 628, 643, 496 N.W.2d 627 (Ct. App. 1992). A timely objection would have afforded the trial court the opportunity to correct any potential error. See State v. Seeley, 212 Wis. 2d 75, 81, 567 N.W.2d 897 (Ct. App. 1997). Therefore, when a timely objection is not made challenging the closing remarks of the prosecutor, a defendant waives his or her right to a review on that issue. See id. Guzman waives his right to challenge the prosecutor’s remarks here by failing to object at the time the comments were made.”
Continuance -- General
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue: Whether the trial court erroneously exercised discretion in denying a continuance based on assertions that lead counsel wanted to obtain assistance of another attorney in trying the case, and also was having difficulty locating certain witnesses.
Holding: Given that these witnesses ultimately testified, and that the desired attorney never made an appearance or filed a notice of retainer, there was no error in denying continuance (court expressing its disdain for the inconsistent positions, denial of speedy trial and continuance). ¶¶27-32.
Continuance -- Materiality of Absent Witness
State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court improperly refused to adjourn trial so that the defense could secure presence of a witness.
Holding: Because the absent witness's proposed testimony was vague as to details in support of alibi, the trial court didn't err in finding insufficient materiality to support adjournment. ¶16.
Go To Brief
Defendant's Presence -- Jury Selection
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the trial court erred in questioning prospective jurors outside the presence of defendant and counsel, on “hardship and infirmity requests” not to serve.
Holding: Questioning jurors about undue hardships “does not implicate the purposes of voir dire that are the premise for a defendant’s constitutional entitlement to be present with counsel” (namely, introduction to substantive factual and legal issue, and disclosure of information relevant to bias): “We therefore conclude that Gribble did not have a federal or state constitutional right to be present with counsel when the court questioned the prospective jurors to determine whether to excuse or defer service of any under § 756.03.” ¶16. Nor did this procedure violate any statutory right: “¶18 … The legislature could not have intended to require the defendant's presence when the judge or clerk is acting in an administrative capacity under § 756.03. In contrast, the procedure by which a court questions jurors to determine bias under Wis. Stat. § 805.08(1) takes place after the jurors are sworn in, with the jurors and parties present, and involves the judge ruling on objections-that is, functioning in a judicial capacity rather than in an administrative capacity. We conclude that the procedure described in § 805.08(1) is the ‘voir dire of the trial jury’ referred to in § 971.04(c).” (Nor is such “hardship questioning” a “proceeding” which must be reported under SCR 71.01(2). ¶19.)
Defendant's presence - civil proceeding.
City of Fond du Lac v. Scott R. Kaehne, 229 Wis.2d 323, 599 N.W.2d 870 (Ct. App. 1999).
Holding: In civil action (here, OWI 1st), appearance of defendant may be made by letter, rather than in person, therefore time limit for demanding jury trial began running when defendant sent letter to court stating intent to plead not guilty.
Defendant's Presence -- "Remote" Appearance by Video, at Plea and Sentencing
State v. Lawrence P. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, petition for rev. gr., 11/15/00
For Peters: Jane K. Smith
Issue: Whether a prior offense may be used to enhance a current one, where the plea and sentencing on the prior offense were accomplished by closed-circuit television.
Holding: Although the procedure used in the prior offense violated the § 971.04(1) statutory mandate of actual physical presence, it did not violate the constitution and therefore the prior offense could be used as a penalty enhancer.
Analysis: Peters, convicted of OAR, attempts to collaterally attack a prior OAR conviction on the ground that its plea and sentencing were accomplished by closed-circuit television rather than personal appearance.) The court begins with the assumption that a collateral attack requires a constitutional violation that affects the reliability of the prior conviction. ¶6. It's clear that a statutory violation occurred: § 971.04(1) mandates a defendant's physical presence at arraignment and sentencing. ¶7. However, this "does not automatically translate into a constitutional violation." ¶10. The closed-circuit television proceeding comported with due process, the court agreeing with foreign authority that such a remote appearance is the legal equivalent of physical presence. ¶13. The case will turn on the arcana of collateral attack procedure. Under § 974.06(1), collateral attack isn't limited to constitutional issues, but may assert a jurisdictional defect based on violation of the "laws of this state." You could argue, that is, that the statutory violation was jurisdictional in nature (more concretely, a court lacks jurisdiction to take a "remote" guilty plea and, therefore, lacks jurisdiction to enter judgment of conviction on such a plea). Nonetheless, a defendant attacking an enhancement-prior may not be able to use § 974.06, because he's not in custody under that offense. There is authority for the idea that the prior becomes entwined with the present sentence precisely because of its enhancement status.  Fawcett v. Bablitch, 962 F.2d 617 (7th Cir. 1992) ("person serving a sentence that has been enhanced because of a prior conviction may challenge the validity of that conviction by litigation against his current custodian"). But the viability of that holding may be questinable under Daniels v. U.S. and Lackawanna Co. D.A. v. Coss. And, the Wisconsin supreme court recently held that only denial of right to counsel will support an attack on an enhancer in the pending case, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528. This will make Peters' already-difficult argument even harder.
Defendant's presence -- dismissal of juror for cause -- waiver.
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999).
For Edmunds: Dean A. Strang.
Holding: Edmunds is held to have waived her right to be present when the parties and the court discussed dismissal of a juror for cause. The dismissal is upheld, where the juror conveyed opinions about the case, before hearing all evidence.
Defendant's Presence -- jury selection.
State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999).
For Harris: William S. Coleman, SPD, Milwaukee Appellate.
Issue: Whether defendant's rights to presence and counsel were violated by their absence from at least part of voir dire.
Holding: Defendant has both a nonwaivable statutory right to presence, and also a constitutional right to assistance of counsel, at jury selection.
Go to Brief
Defendant's Right to Tetsify -- Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence, to rescind the waiver and allow the defendant to testify.
Holding: The trial court’s contemporaneous colloquy with Arredondo “unequivocally demonstrates that Arredondo was aware of his right to testify, and discussed that right with his lawyer. See State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434, 464, 666 N.W.2d 485, 499 (colloquy should consist of inquiry to ensure that defendant was aware of his right to testify and discussed the right with counsel).” ¶13. And, after the last defense witness testified Arredondo told counsel that he did not want to testify (and the trial court concluded that Arredondo had made an “irrevocable decision not to testify in this case”). Though Arredondo later disputed counsel’s assertion, the trial court made a credibility determination in favor of counsel’s version, given which a second on-the-record colloquy wasn’t required. ¶¶14-17. Nor, considering that the State had dismissed its rebuttal witnesses after Arredondo’s waiver, was the court’s refusal to reopen the case to allow Arredondo to testify erroneous:
¶19. "The right to testify must be exercised at the evidence-taking stage of trial." United States v. Jones, 880 F.2d 55, 59 (8th Cir. 1989). "Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion." Ibid. A trial court must consider "whether the likely value of the defendant's testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief." United States v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000).

¶20. In this case, the trial court considered the potential for prejudice. Arredondo made his request after the trial court told the jury that the evidence-taking stage of the trial was complete, and after the State dismissed its rebuttal witnesses. The trial court determined that "substantial prejudice ... would exist to the state and the system and the sequestered jury in order to reopen the case at this time." As noted, the trial court also found that Arredondo voluntarily gave up his right to testify. Moreover, the trial court found that Arredondo was engaging in "theatrics and ... playing for the cameras, perhaps, and that this is a gross attempt to manipulate the system."2

¶21. "[T]he need for order and fairness in criminal trials is sufficient to justify firm, though not always inflexible, rules limiting the right to testify." Jones, 880 F.2d at 59. Under the circumstances, we see no infringement of Arredondo's constitutional right to testify. Further, it is clear from the context of the trial court's statements that the trial court did not mean that Arredondo's decision to waive his right to testify was irrevocable as a matter of law. Rather, it determined that it should not re-open based on what it believed was Arredondo's "attempt to manipulate the system." The trial court did not erroneously exercise its discretion in not re-opening the evidence.

(The court stresses “that Arredondo did not adequately explain what he would have said if allowed to testify,” an omission that supported the trial court’s finding that he was merely being manipulative. Para. 20, n 2.)
Defendant's Right to Testify -- Personal Waiver Required
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.
¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury. The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel.
(In this instance, the trial court held a postconviction hearing that established that Weed’s waiver had been knowing, intelligent and voluntary. ¶46. The court thus leaves open the remedy for future failure to record a contemporaneous waiver. ¶47.)
(UPDATE: For further federal support for the idea that the right to testify being personal and fundamental, its waiver must be knowing and intelligent, see Ward v. Sternes, 02-3104 (7th Cir. 8/8/03) ("the right is personal to the accused, and not capable of being waived by counsel on the defendant’s behalf ... personal waiver of this fundamental right, which protects the fairness of the criminal proceeding, must have been knowing and intelligent to be valid"); caution: Ward does not hold that the on-record procedure mandated by Weed is required under the U.S. Constitution.)
In Limine Orders -- Enforcement
State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School
Issue/Holding:
¶28. We do not end our discussion here. Instead, we are compelled to admonish the increasing pattern of witness and/or attorney violation of in limine orders. On several occasions, we have spent judicial time and resources to make a very similar admonition. Unfortunately, it appears our reproach has fallen on deaf ears because the pattern of these violations continues.

¶29. We now reiterate the message of our previous admonitions; our objective is to raise the intensity of our delivery to an appellate shout….

¶30. We are convinced that the bar, and, particularly, the bench, should be aware of the increasing phenomenon of violations and should take measures designed to increase the risks to attorneys, witnesses, parties and/or any persons who have a role in violations of motion in limine orders. See id. at 122. In our unremitting effort to eliminate this conduct, we now offer the following suggestions to the trial courts-any of which, if employed, would go a long way in avoiding violations of motion in limine orders:

(1) Prior to trial, outside the presence of the jury, the court could address the attorney bound by the motion in limine order and get that attorney's assurance that each and every witness has been instructed about the order;
(2) Prior to a pertinent witness testifying before the jury, the witness could be put on the stand, outside the presence of the jury, sworn, and then asked:
a. if he or she is aware of the motion in limine order,
b. if he or she understands what evidence is barred and,
c. if he or she will abide by the court's order;
(3) Prior to the witness testimony, reduce the motion in limine order to writing and have a copy served upon each witness.
¶31. The practice of flouting motion in limine orders has become nearly epidemic. Trial courts must be proactive in order to end this flagrant misconduct. "Suffice it to say, however, this court's warning shot across the bow, we hope, will help alert everyone in the legal profession that it is time for the judiciary to exercise more control." Id. at 124.
motion in limine, preservation of issue.
(See also Appeals, Waiver; and Evidence, Objection)
State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999).
For Benoit: Meredith J. Ross, LAIP.
Holding: "(A) defendant who makes a motion in limine preserves the right to appeal the issue raised by the motion without renewing the motion at trial," but only to "the extent that the issue was raised during the motion in limine hearing."
Unrecorded Sidebars Disfavored
State v. Derryle S. McDowell, 2003 WI App 168, PFR granted
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL
Issue/Holding: ¶9 n.4:
We remind counsel and the court of our concerns about off-the-record discussions. See Coston v. Joseph P., 222 Wis. 2d 1, 7 n.5, 586 N.W.2d 52 (Ct. App. 1998) ("Here, as in all too many cases, the record is seriously deficient and a circuit court's off-the-record informality has undermined the process of appellate review. While we recognize the many temptations to indulge in off-the-record proceedings, we again urge resistance to temptation."). (See also ¶16 n. 8, to same effect. Note, too, that a ruling arising from an unrecorded proceeding is presumptively correct. ¶29.)