COURT OF APPEALS DECISION DATED AND FILED December 1, 2009 Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2005CF356 2005CF2538 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from judgments and orders of the circuit court for
Before
¶1 FINE, J. Stephen P. Kotecki appeals judgments entered after a jury found him guilty of two counts of felony bail jumping and one count of violating a restraining order, see Wis. Stat. §§ 946.49(1)(b) and 813.125(7). He also appeals the orders denying his postconviction motions.[1] He argues that the evidence was insufficient to support the guilty verdicts, that the real controversy was not tried, see Wis. Stat. § 752.35 (discretionary reversal by the court of appeals), and that his trial lawyer gave him ineffective representation. We affirm.
I.
¶2
¶3 Before the charges were filed in this case, the State had charged
¶4 In April of 2005,
¶5 All four charges were consolidated and tried to a jury in September of 2005. The jury started its deliberations on a Friday afternoon. At about 9:00 p.m. Friday night, the jury sent two notes to the trial court; only one is pertinent to an issue raised on appeal. That note asked what would happen if the jury agreed on one or two charges, but could not agree on the others. The trial court brought the jurors into the courtroom and told them they would be sent home, and that they would resume their deliberations on Monday morning. At that point, one juror asked to speak privately to the trial court and said that she did not want to come back on Monday because of family problems:
This whole week is just such an emotional toll on
me. I’ve been having some personal
issues and things at home that I’m dealing with, and my son is down in
¶6 The trial court consulted with the lawyers, and when the trial court asked Kotecki’s lawyer “Do you want them to stay?” he said “To be honest, Judge, if they’ve come to some conclusion on some of the charges, I prefer to take what they’ve done so far” and later said “I’d like to take what they did with the twelve” and “I think it might be wise to have them put on paper what they’ve already accomplished.” Accordingly, the trial court asked the jury to deliberate for another hour to try to resolve the counts on which it had agreed. After the jury resumed its deliberations, the trial court consulted with the lawyers as to how to handle the juror who did not want to return on Monday. The State told the trial court that it “would just rather have her ordered back,” and Kotecki’s lawyer did not disagree, saying “I guess so.” The trial court decided to order the juror to return, saying “All right, that’s what I’ll do.” The jury returned a verdict on one count, finding Kotecki guilty of bail jumping based on what happened at the track meet. The trial court dismissed the jury and told it to return on Monday.
¶7 All twelve jurors returned on Monday and Kotecki was found
not guilty of stalking, but guilty of violating the injunction and guilty of
bail jumping based on the window incident.
II.
A. Sufficiency of the Evidence.
¶8 In assessing a jury’s verdict, the scope of our review is limited.
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger, 153
i. Window Incident.
¶9 Kotecki argues that there was no evidence to support the
conviction of bail jumping based on the window incident because he claims he
did not knock on the window; rather, that he only threw a snowball at it, and
that throwing a snowball from the street would not violate the “no contact with
the residence.” He supports his
insufficiency-of-evidence claim by pointing to the cross-examination of
Q. So it’s possible your father could have thrown a snowball to the window trying to get your attention, correct?
A. It’s possible.
Q. And we know that because you never saw him in the yard?
A. I never saw him in the yard.
Kotecki ignores, however, the
direct testimony of
¶10
¶11 The evidence was more than sufficient for the jury to find guilt beyond a reasonable doubt in connection with the window incident.
ii. Bail jumping.
¶12 Kotecki claims that his conviction for violating the conditions of his bail by committing the crime of violating the harassment-injunction order in connection with the window incident was improper because the State did not put into evidence the standard bail conditions that he refrain from committing any new crimes. Kotecki is wrong. The jury had before it the no-contact order, which ordered Kotecki “as a condition of [his] release in [the stalking case]” to have “ABSOLUTELY NO CONTACT with … [Ms.] KOTECKI,” at any location and that “Any violation of this Court Order is a crime.” (Bolding and uppercasing in the original.) Further, as aptly noted by the trial court,
[b]ail jumping is self-evidently a crime under
We agree.
iii. Track Meet.
¶13 Kotecki’s last insufficiency-of-the-evidence claim is that there was no evidence that he violated the harassment-injunction order at Patrick’s track meet, because he did not have direct contact with Patrick and did not ask the track members to communicate with Patrick on his behalf. Kotecki’s claim is without merit.
¶14 The no-contact order declared that it was Kotecki’s
“responsibility to avoid contact” with Patrick; that “[i]f you accidentally
come into contact with [Patrick] on any private or public place, you must leave
immediately”; and that “[i]f you go near
[Patrick], even with permission or consent, you can be arrested for violating
this no-contact order.” (Emphasis
added.) At the trial, Kotecki confirmed that
he knew of these requirements. The jury
was able to assess Kotecki’s excuses for being at the meet, talking to the
track coaches, and giving treats to all of
B. Discretionary reversal under Wis. Stat. § 752.35.
¶15 Kotecki argues that he is entitled to a discretionary reversal under Wis. Stat. § 752.35 because the no-contact orders went into the jury room even though, he contends, they were not entered into evidence. He also asserts that he is entitled to discretionary reversal because of the sequential way the verdicts were accepted. We disagree.
Wisconsin Stat. § 752.35 provides:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
¶16 There is no reason to exercise discretionary reversal in this case. First, Kotecki’s claim that the no-contact orders went into the jury room even though they were never entered into evidence is incorrect. Although the no-contact orders were not entered into evidence individually, they were part of a group of exhibits that were all admitted under the trial court’s general admission of “all marked exhibits” during its instructions to the jury. Thus, the trial court said: “So I’m just going to advise you that all of the exhibits that have been marked have been received by the Court.” Thus, when the jury asked to see the exhibits, Kotecki’s attorney did not object to sending the no-contact orders into the jury room.
¶17 Further, there is no dispute that the exhibits Kotecki
challenges here were discussed and testified about during the trial. Thus, Kotecki cannot point to any prejudice. See Manna v. State, 179
¶18 Second, as we have seen, Kotecki’s trial lawyer agreed to the
partial receipt of the verdicts, and, indeed, suggested it. Kotecki nevertheless argues on this appeal
that the procedure was declared improper in State v. Knight, 143 Wis. 2d
408, 421 N.W.2d 847 (1988) (addressing whether taking a split verdict and allowing
continued deliberations without telling the jury that additional deliberations
will occur adversely affects the fairness of the proceeding). Knight does not apply here because the
jury here was told that it would return Monday to complete the deliberations,
while in Knight the trial court’s actions gave the jury “the impression that
their deliberations were final.”
C. Ineffective Assistance.
¶19 Kotecki asserts that his trial lawyer was ineffective for not objecting to hearsay statements of Kara Garcia, the police officer who testified that Ms. Kotecki and the boys did not see anyone other than Kotecki outside the home on the day of the window incident. Kotecki also contends that Patrick’s testimony about what his teammates told him was also hearsay. Kotecki also contends that his trial lawyer was ineffective because he did not request a specific unanimity instruction, and because he did not object to the no-contact orders going to the jury room. We disagree.
¶20 To establish ineffective assistance of counsel, a
defendant must show: (1) deficient
performance; and (2) prejudice.
i. Hearsay—
¶21 Garcia answered in the negative when she was asked: “Did the boys or Linda [Kotecki] or the daughter
Carrie say that anybody else had been by the home” on the day of the window
incident. This testimony was tied to
evidence of a footprint in the snow outside the window of
¶22 The second alleged hearsay was
ii. Unanimity Instruction.
¶23 Kotecki next asserts that his trial lawyer was ineffective because he did not request a unanimity instruction for both the window incident and Kotecki’s presence at the track meet. He argues that without a unanimity instruction, the jurors could have convicted him of different acts for each incident. Again, we disagree.
¶24 We apply the following test to determine whether a unanimity
instruction is constitutionally required to “ensure[] that each juror is
convinced beyond a reasonable doubt that the prosecution has proved each
essential element of the offense,” State v. Lomagro, 113
The first step is to determine whether the jury has
been presented with evidence of multiple crimes or evidence of alternate means
of committing the actus
¶25 Unanimity instructions were not, as alleged by Kotecki on
appeal, required here. Thus, his trial
lawyer was not ineffective for not asking for them. The window incident
involved one alleged act—that Kotecki came onto the property in violation of
the injunction and knocked on the window.
The track-meet incident involved a continuous course of conduct, and
“Wisconsin has historically held that in ‘continuing course of conduct’ crimes,
the requirement of jury unanimity is satisfied even where the jury is not
required to be unanimous about which specific underlying act or acts constitute
the crime.” State v.
iii. No-contact Orders.
¶26 Finally, Kotecki’s last attack on his trial lawyer’s performance was that he did not object to the no-contact orders being submitted to the jury during deliberations. As noted, Kotecki contends that because these exhibits were marked, but never admitted into evidence, his trial lawyer should have objected to letting the exhibits into the jury room. As we have seen, however, the trial court did receive the exhibits into evidence, and so announced in open court.
By the Court.—Judgments and orders affirmed.
Publication in the official reports is not recommended.
[1] The Honorable Glenn H. Yamahiro presided over the trial and entered the judgments of conviction. The Honorable Neal Nettesheim issued the orders denying the postconviction motion.