Criminal Procedure

Disclosure of Exculpatory Evidence – Ineffective Assistance of Counsel

State v. Hineman, 2023 WI 1 (filed Jan. 10, 2023)

HOLDINGS: 1) The state did not violate the defendant’s due-process rights by failing to disclose exculpatory evidence. 2) The defendant was not denied the right to effective assistance of counsel.

SUMMARY: A jury convicted Hineman of first-degree sexual assault of a child. He raised several claims of error on appeal (discussed below). In an unpublished opinion, the court of appeals reversed the conviction. In a unanimous decision authored by Chief Justice Ziegler, the supreme court reversed the court of appeals.

The first issue the supreme court considered was whether the state suppressed evidence favorable to the defense in violation of the defendant’s due-process rights under Brady v. Maryland, 373 U.S. 83 (1963). According to the defendant, the state failed to disclose a child protective services (CPS) report, which contained “material exculpatory evidence that went to an issue at the heart of the case” (¶ 2).

The supreme court rejected the Brady claim. It concluded that the state did not violate Hineman’s due-process rights by failing to disclose the CPS report because the report was not material. In this context, evidence is “material” only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different (see ¶ 30). In this case, the court concluded that “[t]here is no reasonable probability of a different result if the State had disclosed the CPS report because Hineman had access to a police report containing the same information” (¶ 3).

The defendant also raised several claims of ineffective assistance of counsel, each of which the supreme court rejected. First, with regard to the defendant’s claim that his attorney was ineffective for failing to request the CPS report, the court concluded that the defendant was not prejudiced by this failure because any evidence derived from that request would have been cumulative (see ¶ 45).

Second, the court found that counsel was not ineffective for waiving her opening statement to the jury. Counsel did not know how or even whether Hineman would testify in his own defense, and “[i]t was perfectly reasonable for her to waive her opening statement and avoid making promises to the jury she could not keep” (¶ 48).

Third, the court concluded that counsel was not ineffective for failing to object to expert testimony, of which the state did not provide notice, by the person who conducted a forensic interview of the victim. “Trial counsel did not object because she had a reasonable alternative strategy of showing [the forensic interviewer’s] testimony did not match the State’s theory of immediate disclosure [of the crime by the victim]” (¶ 50).

Fourth, the court concluded that the trial judge’s determination that defense counsel did not concede the defendant’s guilt during closing arguments was not clearly erroneous (see ¶ 53).

The court declined to exercise its discretion to grant Hineman a new trial in the interest of justice because “there were no errors at trial that prevented the real controversy from being tried” (¶ 3).

Justice Karofsky filed a concurring opinion that was joined in by Justice R.G. Bradley.

Ineffective Assistance of Counsel – Machner Hearings

State v. Jackson, 2023 WI 3 (filed Jan. 20, 2023)

HOLDING: The circuit court erred by failing to hold a Machner hearing on one of the defendant’s three claims of ineffective assistance of counsel.

SUMMARY: The defendant was convicted of homicide. He filed a postconviction motion alleging that trial counsel had provided ineffective assistance in three different ways. The circuit court denied the motion on all three grounds without holding a Machner hearing. A Machner hearing is the evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s testimony to explain the handling of the case (see ¶ 1, n.1; State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979)). “A defendant is entitled to a Machner hearing if his postconviction motion sufficiently alleges ineffective assistance of counsel and the record fails to conclusively demonstrate that he is not entitled to relief” (¶ 1). In an unpublished decision, the court of appeals affirmed the circuit court’s denial of an evidentiary hearing.

The supreme court affirmed in part and reversed in part in a unanimous opinion authored by Justice Dallet. Two issues arise when a postconviction motion is denied without a Machner hearing. “First, we assess whether the motion on its face alleges sufficient material and non-conclusory facts that, if true, would entitle the defendant to relief. Second, we determine whether the record conclusively demonstrates that the defendant is not entitled to relief. If the defendant’s motion alleges sufficient and non-conclusory facts which would entitle the defendant to relief and the record does not conclusively establish otherwise, then the circuit court must hold a Machner hearing” (¶ 8) (citations omitted).

The supreme court concluded that reversible error occurred when the circuit court denied the defendant’s claim that trial counsel was ineffective in failing to investigate or call alibi witnesses without holding a Machner hearing. The prosecution’s case was not “overwhelming” – for example, the state’s key witness had a motive to lie and changed his story (¶ 19).

No error occurred, however, when the circuit court denied two other claims: an allegation that trial counsel had not interviewed a witness or prepared her to speak with police and an allegation that counsel had informed the defendant that he had to testify “first” in the defense case (¶¶ 23-24).

Insurance

Occurrence – Accident – Issue Preclusion – Reckless Homicide

Dostal v. Strand, 2023 WI 6 (filed Jan. 26, 2023)

HOLDING: A lawsuit over insurance coverage was not barred by issue preclusion despite the defendant’s criminal conviction for reckless homicide.

SUMMARY: Strand was convicted of second-degree reckless homicide after the death of his daughter. The child’s estate brought a civil action against Strand, whose insurer, State Farm Fire and Casualty Co., filed for summary and declaratory judgments in its favor. The circuit court agreed, ruling that Strand’s reckless-homicide conviction precluded insurance coverage because the conviction established that the child’s death was not an “accident” (see ¶ 14). In a published opinion, the court of appeals affirmed. See 2021 WI App 79.

The supreme court reversed in a majority decision authored by Justice A.W. Bradley. The court held that whether Strand’s conduct was an “accident” within the meaning of the insurance policy had not been litigated in the homicide trial; thus, issue preclusion did not bar the claim for coverage in the civil lawsuit.

Issue-preclusion analysis has two steps: “(1) whether issue preclusion can, as a matter of law, be applied, and if so, (2) whether the application of issue preclusion would be fundamentally fair” (¶ 23). “If the analysis fails on the first prong, there is no need to address the second” (id.). Issue preclusion requires that the issue “must have been actually litigated previously” (¶ 24).

After assessing the definition of reckless homicide and case law from other states, the supreme court held that whether the child’s death was an accident under the insurance policy had not been litigated in the criminal case. “The jury here was presented with a question of guilty or not guilty and did not make a determination of what events actually occurred. It was not asked to return a special verdict and made no specific factual findings aside from finding that the elements of the crime charged were proven beyond a reasonable doubt. Strand gave inconsistent accounts of the events leading to [the child’s] death. We do not know if the jury accepted either of his explanations, or if it rejected both” (¶ 40).

The majority also held that disputed issues of fact precluded summary judgment on two other issues: the “resident-relative exclusion” and the “intentional-acts exclusion.”

Chief Justice Ziegler, joined by Justice Roggensack and Justice R.G. Bradley, dissented on the ground that the homicide conviction precluded any finding that the death was an “accident” (¶ 60).

Federal Civil Rights Law

42 U.S.C. § 1983 Actions – Causation

Slabey v. Dunn Cnty., 2023 WI 2 (filed Jan. 18, 2023)

HOLDING: The circuit court did not err in granting summary judgment to Dunn County on the plaintiff’s 42 U.S.C. § 1983 claim against the county.

SUMMARY: Boigenzahn was convicted and sentenced to prison for the second-degree sexual assault of Slabey. At the time of the assault, Boigenzahn was a correctional officer for Dunn County and Slabey was an inmate of the Dunn County Jail. Slabey brought a 42 U.S.C. § 1983 (hereinafter section 1983) action against Dunn County alleging that the county violated her rights under the Eighth and 14th Amendments to the U.S. Constitution. She argued that “Dunn County was deliberately indifferent to a substantial risk of harm to [her] by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn” (¶ 21).

Dunn County moved for summary judgment, which the circuit court granted. In an unpublished decision, the court of appeals affirmed. In a majority opinion authored by Chief Justice Ziegler, the supreme court affirmed the decision of the court of appeals.

For a municipality to be liable in a section 1983 action, the plaintiff must demonstrate that the plaintiff can satisfy the exacting standards set forth in Monell v. Department of Social Services, 436 U.S. 658 (1978). Monell and its progeny “require a plaintiff to satisfy each of the following to prove municipal liability under [section] 1983: (1) identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury; (2) the municipal action was taken with the requisite degree of culpability; and (3) there is a direct causal link between the municipal action and the deprivation of federal rights” (¶ 24) (internal quotations and citation omitted).

The Wisconsin Supreme Court resolved this appeal on the third requirement: causation. Monell requires plaintiffs to demonstrate a direct causal link between the municipal action and the deprivation of federal rights (see ¶ 26). A section 1983 plaintiff must demonstrate that a municipality was not merely a cause but the “moving force” behind the constitutional deprivation (¶ 26). Monell’s causation requirement is a “high bar for plaintiffs to clear” (¶ 27).

“The requirement is applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, supervision, and deficiencies in hiring. In such cases, a [section] 1983 plaintiff must prove causation by showing that the municipal action was taken with deliberate indifference as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice. Evidence of a pattern of tortious conduct is typically necessary to establish that the municipal action rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident is the moving force behind the plaintiff’s injury. Where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish the causal connection between the policy and the constitutional deprivation” (¶ 27) (internal quotations and citations omitted).

Slabey acknowledged that this is a “single-incident” case because of the absence of prior sexual assaults of female inmates by male guards (¶ 28). “Though not impossible, it is exceedingly rare that a [section] 1983 plaintiff under Monell can prove causation based on a single incident” (¶ 29).

Turning to the facts, the majority affirmed the grant of summary judgment to Dunn County on the ground that no reasonable fact finder could conclude that the county was the causal, moving force behind the sexual assault (see ¶ 3). There was insufficient evidence demonstrating that the county acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault Slabey (id.).

When Boigenzahn was hired in 2011, he participated in Prison Rape Elimination Act of 2003 (“PREA”) training and he signed a document indicating he was aware of county policies regarding conduct (including sexual misconduct) with inmates. Throughout his career, Boigenzahn completed at least eight reviews of the county’s fraternization, sexual misconduct, or PREA policies.

In August 2015, Boigenzahn was suspended for three days for fraternization and unbecoming conduct; the principal policy violations involved passing notes between inmates and nonsexual contact with another inmate. Before that suspension, another inmate had reported that Boigenzahn was “too chummy with some of the females” and that he was getting “dangerously close” to crossing the line of prohibited conduct (¶ 7).

During the nine months after the suspension, there was no indication of noncompliance with county policies. However, on May 31, 2016, the county terminated Boigenzahn because he received a note from an inmate. About one month after the termination, the county learned about the sexual assault of the plaintiff, which had occurred on March 25, 2016. An investigation took place, and Boigenzahn was charged with and convicted of committing the assault. (Only two days before the assault, he had attended a legal update session, which included PREA training.)

The supreme court concluded that the plaintiff offered insufficient evidence regarding deliberate indifference by the county, given the county’s policies, training, investigation, discipline, and warning to Boigenzahn regarding termination for conduct unlike a sexual assault (see ¶ 39). “In short, Dunn County is entitled to summary judgment because there is insufficient evidence for a reasonable fact finder to conclude that Dunn County was the moving force behind [the plaintiff] being sexually assaulted. Boigenzahn sexually assaulting Slabey was the result of his action, which was completely forbidden by Dunn County and the criminal law. It is hindsight alone that underlies Slabey’s causation theory” (¶ 40). “Here, there is insufficient evidence that Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault Slabey” (¶ 43).

Justice Karofsky filed a dissenting opinion that was joined in by Justice A.W. Bradley.

» Cite this article: 96 Wis. Law. 42-44 (March 2023).