Petition for Writ of Certiorari — Deandre M. Smith, Petitioner v. Wisconsin

NO.

IN THE

Supreme Court of the United States

_______________

DEANDRE M. SMITH,

Petitioner,

v.

STATE OF WISCONSIN,

Respondent.

_______________

On Petition For A Writ Of Certiorari

To The Court of Appeals of Wisconsin

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

DANA LESMONDE

Counsel of Record

LESMONDE LAW OFFICE

354 W. Main St.

Madison, WI 53703

Telephone: (608) 257-3176

lesmondelaw@outlook.com

QUESTIONS PRESENTED

In the case at bar, the alleged victim levied numerous allegations against

Petitioner to law enforcement, many of which had occurred months before being

reported. At trial, the alleged victim recanted her allegations, stating she fabricated

the allegations and lied to law enforcement in making the prior statements. The State

proffered her out-of-court statements made to law enforcement as substantive

evidence to support the charges. Though the jury acquitted Petitioner of most of the

related charges, Petitioner ultimately stood convicted of some charges—including one

count of possession of a firearm as a felon. The alleged victim’s recanted, out-of-court

allegations supporting this conviction were uncorroborated by any independent,

reliable evidence that would support a finding of guilt on each element of the offense.

One piece of evidence offered in relation to the felon in possession of a firearm

charge was a photograph of the gun that the State offered, and the parties understood

the circuit court to admit, as demonstrative evidence only. The State’s examination

of the alleged victim and another witness at trial then suggested the photograph was

more than demonstrative and the photograph was sent back to the jury during

deliberations with no cautionary or limiting instruction to the jury. Postconviction,

contrary to the record, evidence, and circuit court’s and parties’ understandings, the

Wisconsin Court of Appeals, sua sponte, held that the circuit court admitted the

photograph without limitation

The questions presented are:

i

1. Does a State appellate court violate a criminal defendant’s right to due process on

appeal under the Fourteenth Amendment—by denying the defendant meaningful

review of the merits of his case and effectively rendering his appeal meaningless—

when it revises procedural historical facts contrary to the record, evidence, and

circuit court’s and parties’ understanding with no notice or opportunity for the

circuit court or parties to be heard on the issue?

2. To sustain a criminal conviction consistent with the due process guaranteed under

the Fourteenth Amendment, must a prior inconsistent statement, recanted by the

declarant at trial and utilized against a defendant as substantive evidence at a

state trial be corroborated by reliable, independent evidence substantiating each

element of the crime charged?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF AUTHORITIES .......................................................................................... v

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATEMENT ................................................................................................................. 2

Allegations ........................................................................................................... 4

Evidence at Trial ................................................................................................. 5

Postconviction Proceedings ............................................................................... 10

REASONS FOR GRANTING THE PETITION .......................................................... 17

I. This Court should hold that a State appellate court’s revision of procedural

historical facts contrary to the record, evidence, and understanding of the court

and parties below, with no notice or opportunity for them to be heard on the issue,

constitutes a denial of the defendant’s right to due process on appeal. ................ 17

II. This Court should hold that prior inconsistent statements are insufficient to

support guilt beyond a reasonable doubt consistent with due process

considerations unless such statements are accompanied by independent, reliable

evidence that corroborates each essential element of the crime. ........................... 24

A. There is significant disagreement across jurisdictions regarding whether

and what corroboration is required for a prior inconsistent statement to

constitute sufficient evidence to support a conviction. ....................................... 24

B. Whether a recanted, prior inconsistent statement alone can satisfy the due

process requirement of sufficient evidence to support a conviction is an

important constitutional question that requires this Court’s guidance. ............ 30

C. Petitioner’s case presents the ideal vehicle for this Court to address this

issue and to rectify the State courts’ violation of Petitioner’s constitutional due

process rights. ....................................................................................................... 34

CONCLUSION............................................................................................................. 36

iii

APPENDIX

APPENDIX A—Wisconsin Court of Appeals Decision

(November 27, 2019) ....................................................................................... 1a

APPENDIX B—Wisconsin Court of Appeals Order

Denying Motion for Reconsideration and Errata

Sheet (December 23, 2019) ........................................................................... 21a

APPENDIX C—Circuit Court Order Denying PostConviction Relief (August 31, 2018) ............................................................. 26a

APPENDIX D—Motion on Postconviction Relief

Hearing Tr. (partial – circuit court’s rulings)

(August 8, 2018) ............................................................................................ 28a

APPENDIX E—Circuit Court Decision and Order

(December 13, 2016) ..................................................................................... 38a

APPENDIX F—Supreme Court Order Denying

Discretionary Review (May 19, 2020) .......................................................... 40a

APPENDIX G—Jury Trial, Morning Proceedings Tr.

(partial – relevant evidentiary ruling and direct

examination of alleged victim) (May 27, 2015) ............................................ 41a

iv

TABLE OF AUTHORITIES

Cases

Acosta v. State, 417 A.2d 373 (Del. 1980) ........................................................................ 26

Ake v. Oklahoma, 470 U.S. 68 (1985) ............................................................................... 17

Alaska v. Nunn, 845 P.2d 435 (Alaska Ct. App. 1993) ..................................................... 29

Bridges v. Wixon, 326 U.S. 135 (1945) ....................................................................... 31, 33

Brower v. State, 728 P.2d 645 (Alaska Ct. App. 1986)..................................................... 29

California v. Green, 399 U.S. 149 (1970) ................................................................... 24, 31

City of Helena v. Strobel, 390 P.3d 921 (Mont. 2017) ...................................................... 29

Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012). ........................................................ 26

Douglas v. California, 372 U.S. 353 (1963) ..................................................................... 17

Evitts v. Lucey, 469 U.S. 387 (1985) ........................................................................... 17, 18

Griffin v. Illinois, 351 U.S. 12 (1956) ......................................................................... 16, 17

In re Miguel L., 649 P.2d 703 (Cal. 1982) .................................................................. 30, 31

Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................... 30, 31

Ramsey v. State, 448 S.E.2d 790 (Ga. App. 1994) ............................................................ 26

Ross v. Moffitt, 417 U.S. 600 (1974) ................................................................................. 17

State v. Betts, 559 S.W.3d 47 (Mo. App. 2018) ................................................................ 26

State v. Mancine, 590 A.2d 1107 (N.J. 1991) ................................................................... 28

State v. Moore, 485 So.2d 1279 (Fla. 1986)...................................................................... 33

State v. Perry, 401 N.W.2d 748 (Wis. 1987). ................................................................... 17

State v. Pierce, 906 S.W.2d 729 (Mo. App. 1995) ................................................ 26, 27, 32

State v. Porter, 439 S.W.3d 208 (Mo. banc 2014) ............................................................ 26

v

State v. Ramsey, 782 P.2d 480 (Utah 1989) ................................................................ 30, 31

State v. Robar, 601 A.2d 1376 (Vt. 1991) ......................................................................... 28

State v. Torres, 299 P.3d 804 (2013) ................................................................................. 30

State v. White Water, 634 P.2d 636 (Mont. 1981)............................................................. 31

Thompson v. City of Louisville, 362 U.S. 199 (1960) ....................................................... 31

United States v. Bahe, 40 F. Supp. 2d 1302 (D.N.M. 1998) ...................................... passim

United States v. Leslie, 542 F.2d 285 (5th Cir. 1976) ....................................................... 29

United States v. Orrico, 599 F.2d 113 (6th Cir. 1979) ................................................ 27, 32

United States v. Samuels, 808 F. 2d 1298 (8th Cir. 1987) ................................................ 21

United States v. Sineneng-Smith, 590 U.S. ___ (2020) (No. 19-67) ................................. 21

Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982).............................................................. 28, 29

Statutes

Wis. Stat. §908.01.......................................................................................................... 33

Wis. Stat. §909.01.............................................................................................................. 18

Constitutional Provisions

U.S. Constitution, Fourteenth Amendment ................................................................ passim

Wis. Constitution, Article I, Section 21 ............................................................................ 17

vi

OPINIONS BELOW

The Supreme Court of Wisconsin denied discretionary review in an unreported

Order. (App. 40a.) The per curiam opinion of the District IV Wisconsin Court of

Appeals —which was amended by a subsequently-issued errata upon Petitioner’s

motion for reconsideration—from which discretionary review was sought is

unpublished but reported at 389 Wis. 2d 624, 937 N.W.2d 297. (App.1a-25a.) The

conclusions of the circuit court were unreported (App. 26a-39a.)

JURISDICTION

The Supreme Court of Wisconsin denied discretionary review in an Order dated

May 19, 2020. (App. 40a.) The Petition is timely as filed on or before October 16, 2020,

pursuant to this Court’s Order dated March 19, 2020, which stated “the deadline to

file any petition for a writ of certiorari due on or after the date of this order is extended

to 150 days from the date of the lower court judgment, order denying discretionary

review, or order denying a timely petition for rehearing.”

This Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United States Constitution states:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

1

STATEMENT

In December 2014, BMJ, Petitioner’s longtime girlfriend, contacted law

enforcement and alleged Petitioner perpetrated multiple instances of domestic

violence against her over the course of the prior approximately three months. (App.

2a, 47a.) Based on BMJ’s allegations, Petitioner was tried before a jury on eleven

criminal counts relating to seven separate alleged incidents of domestic violence. (See

App. 2a-4a; Am. Info., 3/21/15.) Among these was an October 2014 incident during

which Petitioner allegedly possessed and accidentally discharged a firearm in BMJ’s

apartment, hitting BMJ in the arm. (App. 2a) Two of the charges Petitioner faced at

trial—first degree recklessly endangering safety and possession of a firearm by a

felon—were related to this incident. (Am. Info., 3/21/15.)

After a two-day trial on all eleven charges beginning May 27, 2015, at which

Petitioner was represented by Attorney Murali Jasti, the jury returned not guilty

verdicts on eight counts, including the charge of first degree recklessly endangering

safety—convicting Petitioner of just three counts. (See App. 4a, 41a.) One of those

convictions was reversed and vacated during postconviction proceedings—leaving

Petitioner convicted of just one count of possessing a firearm as a felon during the

October 2014 incident and one count of misdemeanor battery stemming from an

unrelated December 2014 incident. (See 4a; Am. J. of Conv., 3/8/17.) Petitioner was

sentenced on July 7, 2015, to consecutive sentences of 6 years in prison for Count 2

(3 years initial confinement, 3 years extended supervision) and 2 years in prison for

2

Count 10 (1 year initial confinement, 1 year extended supervision). (Am. J. of Conv.,

3/8/17.)

During postconviction and appellate proceedings, Petitioner alleged, inter alia,

that his attorney was ineffective in his handling of a photograph of a gun admitted

against him at trial and that the evidence in support of the felon in possession of a

firearm conviction was insufficient to sustain his conviction, arguing that recanted,

prior inconsistent statements are insufficient, as a matter of law, to sustain a

conviction without sufficient corroboration. (App. 4a-5a, 17a, 29a-38a.) A pre-trial

ruling, to Petitioner’s understanding, had restricted use of a photograph of a gun at

trial to demonstrative evidence. (App. 10a.) The only evidence presented at

Petitioner’s trial in support of the felon in possession of a firearm charge was that

photograph; BMJ’s out-of-court statements, which she recanted at trial; and

photographs of a hole in a wall and a scar on BMJ’s arm, that BMJ had claimed in

her recanted, out-of-court statements to have been caused by a bullet fired from a gun

in Petitioner’s possession. (App. 17a.)

Though the trial attorney, postconviction counsel for the State, appellate counsel

for the State, and circuit court all appeared to agree that the pre-trial ruling limited

use of the gun photograph to demonstrative evidence only, the Court of Appeals, sua

sponte, reinterpreted the record, including essentially excising portions of it, to

conclude that the circuit court had admitted the photograph without limitation. (App.

14a, 30a, 36a; Mot. on Postconv. Relief Hr’g Tr. 8/8/18, pp.89-92; State’s App. Resp.

Br. 1, 16-17.) Both the circuit court and the Court of Appeals found the other evidence

3

admitted sufficiently corroborated BMJ’s recanted, prior inconsistent statements to

justify sustaining the conviction. (App. 17a, 38a.)

Allegations

On December 27, 2014, Petitioner and his long-time on-again, off-again girlfriend

and mother of his children, BMJ, got into an argument when Petitioner tried to leave

BMJ’s apartment—BMJ knew Petitioner was involved with another woman and was

leaving to be with her (Jury Trial Tr. 5/27/15 PM, p.115). Upset about Petitioner’s

infidelity; concerned about the impact police contact would have on her housing and

business because Petitioner was not supposed to be at her apartment; and worried

the responding officer would not believe the allegations she made against Petitioner

that night—because she also told him nothing had happened—BMJ followed up with

law enforcement over the next three days, increasing the allegations against

Petitioner until she had alleged numerous incidents going back several months. (App.

45a-47a.)

One such incident, as alleged by BMJ, prompted the felon in possession charge

that underlies both questions presented in this petition. BMJ alleged that on October

28, 2014, she and Petitioner were arguing in her apartment and she asked Petitioner

to leave. (App. 2a, 50a.) As Petitioner was packing, he retrieved a handgun stored

above the cabinets in the kitchen and began to “taunt” BMJ with it. (App. 2a, 50a51a.) In response, BMJ grabbed a paring knife from a nearby drawer. (App. 53a.)

Eventually, the two ended up in BMJ’s bedroom in a kind of “standoff”—each facing

the other and walking around the room, telling the other to put their weapon down.

4

(App. 54a-56a.) In response to Petitioner telling her she needed to drop the knife,

BMJ said “This is a knife in a gun fight.” (App. 55a.)

When BMJ, standing between Petitioner and the only means of egress, grabbed a

bottle of perfume from her dresser and tried to spray it in Petitioner’s face, Petitioner

turned away and the gun went off. (App. 56a-57a, 69a.) The bullet passed through

BMJ’s arm, continuing into the bedroom wall. (App. 59a-60a.) Petitioner and BMJ

wrapped BMJ’s arm in a sweater but did not go to the hospital. (App. 60a-64a.)

Law enforcement officers photographed the purported bullet hole in the bedroom

wall and scars on BMJ’s arm which she claimed were bullet entry and exit wounds.

(App. 2a, 19a, 59a, 68a.)

Evidence at Trial

No gun was ever recovered. BMJ did, however, provide law enforcement with a

photograph of a gun. (App. 2a, 68a-71a.)

In a motion in limine addressed at a hearing on the morning of the first day of

trial, Petitioner sought to prohibit the State from introducing this photograph at trial:

THE COURT: Yeah. Number 4, "…State…prohibited from introducing

the picture of the purported gun involved, as the source of that picture

has not been determined except by an alias." What do you mean by that?

ATTORNEY JASTI: There was a sequence of events in which the alleged

victim here e-mailed Officer Peterson a picture of a gun that she

purported was the gun that was used in the incident. There was no

identifying markers on that picture. It was something that she had

pulled from an Instagram account that was not associated with my

client in any way. The user name was gibberish if nothing else. It was

some kind of fictional name, and so there was no opportunity for us to

inquire as to what the source of that picture fundamentally was. So

those were our primary concerns with introducing that photograph of

5

some otherwise unknown picture of a gun and trying to tie that to my

client.

THE COURT: All right. I'm assuming that there was no bullet

recovered; is that right?

ATTORNEY THROCKMORTON: That's correct.

THE COURT: All right. And I'm assuming that, police officers, that if

they're going to testify that what appears to be a hole in the front and

back of the purported victim's arm was made by a bullet, that they would

not be able to accurately or with any measure or degree of accuracy state

that that's the type of bullet that came from that type of gun; is that

right?

ATTORNEY THROCKMORTON: I think they can say it's consistent

because she described the gun and she described the picture that she

sent was-- She said that that was consistent with the gun that the

defendant used, and I believe that there could be testimony that the size

of the hole in the wall and the size of the scar could be consistent with

the type of bullet from the gun that she was describing.

THE COURT: All right. This photograph, is there someone that's going

to authenticate that photograph, or is it just at random?

ATTORNEY THROCKMORTON: Yes. We do intend to authenticate it

through Breana, and it's demonstrative, just saying that the gun was

consistent with that. We're not claiming that it was the gun, but that

she--she gave the photograph to say that the gun was consistent with

this gun.

THE COURT: Is she the one that sent the photograph?

ATTORNEY THROCKMORTON: She did. She e-mailed it to our

detective.

THE COURT: And, if that can be established foundationally, then the

photograph comes in. If it can't be, the photograph is out.

ATTORNEY JASTI: Just a follow-up to that, there was no information

in any of the discovery talking about any kind of correlation between the

size of the hole in the wall and the size of her scars and, you know, the

caliber of this gun that's in the photograph, so we've not been provided

notice of any of that proposed testimony that the State has just indicated

that they would be offering.

6

THE COURT: Yeah. I'm sorry I asked those questions. I'm going to

remain very skeptical if you offer evidence regarding the caliber of the

bullets based on the size of the hole in the wall or the size of the hole in

the arm. Just be aware, and I know that Attorney Jasti will be on his

toes; correct?

ATTORNEY JASTI: Yes.

THE COURT: But my ruling is confined here to the motion in limine

that was just evaluated here, the photograph of the gun. That's number

4.

(App. 42a-44a.) Thereafter, Jasti offered no further objections to the photograph’s

admission.

The State’s primary witness was BMJ, who testified under a grant of use

immunity. (Jury Trial Tr. 5/27/15 AM, pp.39-40.) The State’s examination of BMJ

was largely comprised of reading BMJ’s prior, unsworn, out-of-court statements to

law enforcement into the record and asking BMJ to confirm whether she made those

statements. (App. 49a-72a.) While BMJ largely did not deny making the prior

statements, she repeatedly stated the prior statements were lies, fabricated out of

spite in an attempt to get Petitioner in trouble. (App. 3a, 45a-72a.)

The State introduced the gun photograph through BMJ’s testimony:

Q. Didn't you tell Detective Peterson that a friend of the defendant's had

taken a picture of a gun while it was sitting on her couch and posted it

somewhere?

A. Of a gun? Or what are you saying? Say that again. I'm sorry.

Q. Yes. Didn't you tell Detective Peterson that a friend of the defendant had

taken a picture of a gun while it was sitting on your couch and posted it to

I think it was Instagram or something like that?

A. I said they took a picture of a gun. Yes, I did say that, or they had a

picture of a gun on their wall.

Q. And didn't you e-mail that picture of a gun to Detective Peterson?

7

A. Yes, I did, of a gun, mm-hmm.

ATTORNEY SCHLIPPER: May I approach?

THE COURT: Yes.

BY ATTORNEY SCHLIPPER:

Q. I'm showing you what's been marked as State's Exhibit Number 12. Do

you recognize that?

A. Um, like have I seen this in person? I recognize me sending this to her,

but no, I haven't seen that gun in person.

Q. Is this the e-mail--the photo that you sent to Detective Peterson?

A. Yeah. I just said that.

Q. So it is a true and accurate representation of the photo that you sent to

Detective Peterson?

A. Yes.

ATTORNEY SCHLIPPER: State moves Exhibit 12 into evidence.

THE COURT: Any objection?

ATTORNEY JASTI: No.

THE COURT: Received.

ATTORNEY SCHLIPPER: Permission to publish?

THE COURT: Objection?

ATTORNEY JASTI: No.

THE COURT: You may.

…

BY ATTORNEY SCHLIPPER:

Q. And isn't it true, pointing to the Exhibit 12 that is up on the screen, isn't

that true that that is the photo that you sent to Detective Peterson and said

it's consistent with the gun that the defendant had?

A. Are you saying did I say that it looked like that gun or something?

8

Q. Yes.

A. Um, I probably did, and again, that's something that I told her, not that

he did have a gun, but that's consistent with the lie that I told her, yes.

(App. 15a, 68a-71a.) During cross-examination, BMJ confirmed that the photograph

was obtained from a social media website:

Q. Ms. Schlipper mentioned a couple of photographs you sent to Officer

Peterson, one of those photographs was a picture of a handgun, do you

recall that?

A. Um-hum. Yes.

Q. That was a picture you had found on a friend's Instagram?

A. Yes.

(Jury Trial Tr. 5/27/15 PM, pp.50-51.) The State then elicited testimony from

Detective Kathy Peterson about the gun photograph:

Q. Showing you what has already been admitted as Exhibit Number 12,

what is that a photo of?

A. That's a photo that Breana had emailed me, that she said that she

found on an Instagram account, which she said might be the gun that

was used by the defendant in the October 28th incident. But at a

minimum, it resembled the gun.

(App. 15a; Jury Trial Tr. 5/27/15 PM, p.92.)

The gun photograph was sent back to the jury during deliberations, upon the jury’s

request and with no objection from Jasti. (App. 4a, 16a.) At no point did Jasti request,

or did the court give, a limiting instruction identifying the gun photograph as

demonstrative evidence only. (App. 4a, 16a.)

9

Postconviction Proceedings

During postconviction proceedings in the circuit court, Petitioner alleged, inter

alia, that (1) he was denied the effective assistance of counsel by Jasti’s handling of

the gun photograph, including his failure to object to the State’s use of the photograph

as exceeding the limited scope for which the photograph was admitted, move to strike

to offending testimony, and request that the jury be instructed on the photograph’s

limited admissibility; and (2) there was insufficient evidence to sustain his conviction

for felon in possession of a firearm because it was based solely on BMJ’s prior

inconsistent statements, uncorroborated by any independent, reliable evidence and—

relying on the court’s analysis and case review in United States v. Bahe, 40 F. Supp.

2d 1302 (D.N.M. 1998), cases in other jurisdictions, and other literature on the

issue—urged the court to follow the example of other jurisdictions which had

concluded such evidence is insufficient, as a matter of law, to sustain a conviction

(App. 9a-10a, 15a-17a, 38a)—which is the second question presented by this Petition.

During an August 8, 2018, postconviction evidentiary hearing on Petitioner’s

supplemental postconviction motion, Jasti testified that the circuit court limited the

use of the photograph to demonstrative evidence. (App. 14a.) The attorney on behalf

of the State argued that there were no grounds for objection because the State did not

exceed the limited scope ruling, acknowledging the photograph was merely

demonstrative evidence, that that was the purpose for which the State offered it, and

never claiming it was admissible as substantive evidence under the court’s motion in

limine ruling. (Mot. on Postconv. Relief Hr’g Tr. 8/8/18, pp.89-92.) At the conclusion

10

of the hearing, the circuit court—which was the same court to preside over

Petitioner’s trial—determined the State complied with the court’s pretrial ruling

limiting the photograph’s admissibility and, therefore, Jasti was not ineffective for

failing to object or move to strike the related testimony 1:

First of all, a gun, the gun situation, I've got to say I'm still wrapping

my head around that. You know, countless trials involve someone

testifying, yes, that's the type of car or that's the type of stop sign that I

observed or that's the type of knife or that's the type of shoes or that's

the type of gun. And that testimony, of course, is admissible, the

testimony itself, and then often times demonstrative exhibits are offered

so that the jury has a concept of what it is that the witness is describing,

and the more inarticulate the witness, the more lack of precision in the

witness's vocabulary, the more likely the court is to admit a

demonstrative exhibit to support the witness's testimony, and in I.D.

cases, the sketch artist that I spoke of, that looks like the guy. I'm

emphasizing the word "like," a simile, not saying that is the guy. That

might be the car or the type of car. Right on down the line.

The testimony here, I think it's replete in the record that nobody

identified this as the gun, and in fact this mysterious friend that posted

it on their wall or took a picture of it or may have set it on the victim's

couch, I don't think there was any inference throughout the trial that

that friend was the defendant and posted it on his wall. I don't recall

him having a wall or anyone attributing that gun to him. That was a

picture of the type that was relevant evidence that was offered by the

purported victim in her statement in describing the firearm, and

relevant, and the court's pretrial ruling I find was complied with. There

was no failure to object. There was no grounds for objection.

…

…Not deficient performance when it comes to any failure to object to the

exceeding the scope of the use of the demonstrative evidence, the picture

of the gun…

(App. 29a-30a, 36a.)

1

The circuit court did not directly address Jasti’s failure to request a limiting instruction in its

comments disposing of Petitioner’s postconviction claims. (See App. 28a-37a.)

11

Petitioner’s sufficiency claim—which had been made in Petitioner’s original

postconviction motion—was denied without a hearing. (See App. 38a.) In a written

order, the circuit court concluded BMJ’s prior inconsistent statements were

corroborated: “Having a gunshot wound in her arm and a bullet hole in the wall of

her apartment, sufficiently corroborates her earlier claims that the defendant caused

her bodily harm while in the possession of a firearm.” (App. 38a.)

After entry of a written order denying postconviction relief (App. 26a-27a),

Petitioner challenged the circuit court’s denial of his postconviction motions in

District 4 of the Wisconsin Court of Appeals. In his appeal, Petitioner, inter alia,

challenged the circuit court’s conclusions that Jasti was not ineffective because the

State had not violated its pretrial limited admissibility ruling relating to the gun

photograph and that the evidence was insufficient to sustain Petitioner’s conviction

for possessing a firearm as a felon, again urging the court to adopt a rule, as had

other jurisdictions, that such statements alone are insufficient to sustain a conviction

and to conclude that no evidence sufficient to sustain BMJ’s prior inconsistent

statements was presented to the jury. (App. 9a-10a, 15a-17a.) In its response brief to

the Court of Appeals, the State explicitly stated that the “circuit court allowed the

State to use the photo only as demonstrative evidence.” (State’s App. Resp. Br. 1, 1617.)

The Court of Appeals affirmed the circuit court’s ultimate conclusion that Jasti

was not ineffective but did so on different grounds. Contrary to the circuit court—

which had issued the evidentiary ruling at issue—the Court of Appeals, sua sponte,

12

determined the circuit court had not limited use of the photograph to demonstrative

evidence, but admitted it as substantive evidence. (App. 10a-13a.) The means by

which the Court of Appeals arrived at this conclusion are central to the first question

presented to this Court. To so conclude, the Court of Appeals dismissed the State’s

on-the-record offer of proof at the motion in limine hearing as “puzzling.” (App. 10a.)

But the Court of Appeals did not merely dismiss the State’s offer of proof for its own

purposes—it also reached back in time to the motion in limine hearing and, without

any basis in the record or evidence for its conclusion, decided that the circuit court

had also disregarded the State’s comments:

The State’s reference to the photo as “demonstrative” is puzzling, given

the reported source of the photo, its appearance, and the nature of the

felon in possession charge against Smith. Under the circumstances, we

have difficulty seeing how this photo could reasonably have been

presented to the jury as mere demonstrative evidence, and the State’s

reference may well have puzzled the circuit court for the same reasons.

More importantly, our independent review of the record reveals that the

circuit court did not understand the prosecutor to be stipulating that the

gun photo would be merely “demonstrative” evidence, and we conclude

that no reasonable attorney in trial counsel’s position would have

believed that the court limited the photo to demonstrative use. Instead,

a reasonable attorney, knowing what trial counsel knew at the time and

having heard the circuit court’s ruling, would have concluded that the

photo was admissible as substantive evidence, provided that the State

was able to establish foundation. We now explain in more detail why the

record supports this conclusion, and then show how a proper reading of

the record disposes of Smith’s arguments.

First, it is apparent from the record that trial counsel knew that B.M.J.

had told the police that the photo depicted the gun Smith had threatened

her with—not some unknown gun that was merely “consistent” with

that gun. In accordance with what he appeared to understand at this

time, trial counsel’s motion in limine described the gun photo as a

photograph “of the purported gun involved.” Then, during the motion

hearing, trial counsel explained his understanding of the facts: “the

alleged victim here e-mailed [the detective] a picture of a gun that she

13

purported was the gun that was used in the incident.” Thus, it is

apparent that trial counsel understood and represented to the circuit

court that the State would not offer the photo merely as demonstrative

evidence, but instead as substantive evidence depicting the gun that

B.M.J. accused Smith of possessing.

Second, it is also apparent from the transcript7 that the circuit court

based its admissibility ruling on the foundation grounds argued by trial

counsel—not on any possible stipulation by the State about how it

intended to refer to the photo once it was in evidence. The court asked

how the photograph would be authenticated, and the prosecutor

represented that B.M.J. would provide the foundation. The prosecutor

then made the puzzling assertion that the photo was “demonstrative,”

but the court did not acknowledge this comment. Instead, the court ruled

on the topic that had been presented to it, namely, foundation. On that

topic, the court ruled that the photo could be admitted if the State

established that B.M.J. provided it to police.8 Thus, there is no

suggestion that the court understood the State to be stipulating that it

would use the gun photo exclusively as “demonstrative” evidence or that

the court limited the gun photo to demonstrative use, and trial counsel

had no basis to think that the photo was in fact admitted only for

demonstrative purposes.

(App. 10a-13a.) The Court of Appeals speculated that neither the circuit court nor

trial counsel possessed any independent recollection of the ruling and had not

reviewed the relevant portion of the transcript, but had merely been hoodwinked by

Petitioner’s postconviction counsel’s alleged “mistaken representations” of the record.

(App. 13a-14a.) While concluding no reasonable attorney with trial counsel’s

knowledge regarding the photograph would have believed the court limited use of the

photograph to demonstrative evidence, the Court of Appeals was notably silent about

why neither attorney for the State—postconviction or appellate—challenged

postconviction counsel’s representation of the ruling. Having concluded the ruling did

not limit admissibility of the photograph, the Court of Appeals further concluded

Jasti was not ineffective in his handling of that evidence. (App. 14a-16a.)

14

Regarding Petitioner’s sufficiency claim, the Court of Appeals, like the circuit

court, did not address the question of whether corroboration of prior inconsistent

statements was necessary as a matter of law, but concluded that “there was ample

evidence introduced at trial to corroborate B.M.J.’s prior statement to police that

Smith possessed a firearm, including photos of B.M.J.’s alleged bullet wound, photos

of the alleged bullet hole, and the gun photo.” (App. 17a.) While Petitioner had pointed

out that the only evidence that the hole or the scars were made by a bullet—much

less one fired from a gun in Petitioner’s possession on the date in question, a crucial

element of the offense—came from BMJ’s recanted, admittedly fabricated, out-ofcourt statements, the Court of Appeals found that irrelevant and, confusingly,

pointed to the lack of “authority for the proposition that once a victim recants

inculpatory statements, evidence that would be relevant to corroborate the original

statement is no longer admissible.” (App. 17a.)

Petitioner filed a motion for reconsideration in the Court of Appeals pointing out

that the Court of Appeals had erroneously used the incorrect standard for review of

ineffective assistance of counsel claims and requesting the Court of Appeals

reconsider

its

determination

regarding

the

evidentiary

ruling—with

full

consideration of the facts of record, which undermined it conclusions regarding the

evidentiary ruling admitting the gun photograph—or remand the case to the circuit

court for clarification. (Mot. for Recons. 12/17/19.) The Court of Appeals denied the

motion but issued an errata sheet correcting those portions of its opinion that applied

an erroneous standard of review. (App. 21a-25a.)

15

The argument alleging a violation of Petitioner’s federal constitutional right to

due process on appeal—the first question Petitioner presents to this Court—was

raised for the first time in his petition for review in the Wisconsin Supreme Court

because the violation first occurred with issuance of the opinion of the Wisconsin

Court of Appeals. In Petitioner’s January 22, 2020, petition to the Wisconsin Supreme

Court, seeking discretionary review of the Court of Appeals decision, Petitioner, inter

alia, alleged the Court of Appeals violated Petitioner’s right to due process on appeal

by changing the record and “finding”—without notice to the parties or an opportunity

to respond and in contradiction of the facts in evidence—procedural historical facts

in contradiction to the circuit court and to the understanding of every preceding

attorney who had addressed the issue. (Pet. for Review 1/22/20, pp.1-2, 16-17.)

Petitioner alleged that this violated a defendant’s right to due process on appeal, as

recognized in Griffin v. Illinois, 351 U.S. 12, 18 (1956), because it effectively

rendered his appeal meaningless. (Pet. for Review 1/22/20, pp.1-2, 16-17.)

In his petition to the Wisconsin Supreme Court, Petitioner also again challenged

the sufficiency of the evidence in this case, urging the court to require corroboration

for prior inconsistent statements that form the basis for a conviction, and asserting

that there was no independent evidence sufficient to corroborate BMJ’s recanted, outof-court statements in this case to sustain Petitioner’s conviction for felon in

possession of a firearm. (Pet. for Review 1/22/20, pp.2-3, 26-29.) The Wisconsin

Supreme Court denied discretionary review. (App. 40a.)

16

REASONS FOR GRANTING THE PETITION

I.

This Court should hold that a State appellate court’s revision of

procedural historical facts contrary to the record, evidence, and

understanding of the court and parties below, with no notice or

opportunity for them to be heard on the issue, constitutes a denial of

the defendant’s right to due process on appeal.

The State of Wisconsin has created appellate courts and guarantees criminal

defendants the right to a direct appeal from a conviction. Wis. Const. art I, §21(1);

State v. Perry, 401 N.W.2d 748, 751 (Wis. 1987). “[I]f a State has created appellate

courts as ‘an integral part of the…system for finally adjudicating the guilt or

innocence of a defendant,’ Griffin v. Illinois, 351 U.S., at 18, the procedures used in

deciding appeals must comport with the demands of the Due Process and Equal

Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393 (1985).

Consequently, “the Fourteenth Amendment guarantees a criminal appellate

pursuing a first appeal as of right certain minimum safeguards necessary to make

that appeal ‘adequate and effective’….” Id. at 392 (quoting Griffin v. Illinois, 351

U.S. 12, 20 (1956)).

The Due Process Clause of the Fourteenth Amendment guarantees “fundamental

fairness.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985). “[F]undamental fairness

entitles…defendants to ‘an adequate opportunity to present their claims fairly within

the adversary system….’” Id. at 77 (quoting Ross v. Moffitt, 417 U.S. 600, 612

(1974)). For each defendant, this means the opportunity for a meaningful appeal.

Ross, 417 U.S. at 612 (quoting Douglas v. California, 372 U.S. 353, 358 (1963)).

17

Due process guarantees to each defendant a “fair opportunity to obtain an

adjudication on the merits of his appeal.” Evitts, 469 U.S. at 405.

Here, the Court of Appeals denied Petitioner the fair treatment and meaningful

review of the merits of his appeal guaranteed to him by the Due Process Clause. The

Court did so by changing an established procedural historical fact. And it did so by

excising, disregarding, or rendering meaningless portions of the record because the

record and evidence before it was inconsistent with the court’s newly found,

procedural historical fact.

First, the court claims, based on Jasti’s description of the photograph, that Jasti

“knew that B.M.J. had told the police that the photo depicted the gun Smith had

threatened her with—not some unknown gun that was merely ‘consistent’ with that

gun.” (App. 11a.) In so claiming, the court ignores what else Jasti knew—evidenced

by his next comments at the hearing—that the State could not sufficiently establish

a foundation for the photograph’s admission for that purpose. (App. 42a.) To

authenticate the photograph as being of the gun in question, the State had the burden

of producing “evidence sufficient to support a finding that the matter in question is

what its proponent claims.” Wis. Stat. §909.01 (2017-18). Neither Jasti’s

characterization of the photograph, nor his knowledge could establish that.

Furthermore, the Court of Appeals ignores the evidence subsequently presented

at trial that further establishes the State’s inability to authenticate the photograph

as substantive evidence. The testimony merely established that BMJ found the

photograph on her friend’s social media account, emailed it to law enforcement and

18

said the gun therein resembled or might be the gun Petitioner allegedly possessed,

but that she had never personally seen the gun depicted therein. (App. 15a, 68a-69a;

Jury Trial Tr. 5/27/15 PM, pp.50-51, 92.) This was not “evidence sufficient to support

a finding that” the photograph depicted the gun Petitioner was alleged to have

possessed. Rather, consistent with the State’s offer of proof, the testimony established

a foundation sufficient to admit the photograph only as demonstrative evidence.

Here, the State did not even try to lay such a foundation. Rather, when the circuit

court inquired whether the photograph could be authenticated, it asserted that it

could be authenticated through BMJ only as demonstrative evidence—“she gave the

photograph to say that the gun was consistent with this gun” (App. 43a)—conceding

it could not establish the foundation necessary for admission as substantive evidence.

To get around that, the Court of Appeals more than disregarded a portion of the

record—it reached back in time to the circuit court and excised that portion of the

record, concluding the circuit court disregarded the State’s offer of proof on a piece of

its evidence, the admissibility of which was in question. (App. 11a-12a.) The basis for

its conclusion was that “the court did not acknowledge” the State’s assertion that the

photograph was demonstrative. (App. 12a.) The Court of Appeals goes on to state that

the circuit court “ruled that the photograph could be admitted if the State established

that B.M.J. provided it to police” (App. 12a-13a), even though that, in and of itself,

would be insufficient to authenticate the photograph as substantive evidence and the

State offered nothing during the motion in limine hearing to challenge Jasti’s

explanation for why this photograph could not be authenticated as substantive

19

evidence. The Court of Appeals instead believes it more likely that the circuit court

asked the State, the proponent of the evidence in question, for the foundational

prerequisites for admitting the evidence for purpose A; did not get the necessary

foundational prerequisites for admitting the evidence for purpose A but was directly

told it would be offered for a different, more limited purpose B; and largely ignored

the State’s response to its question and admitted the evidence, without the necessary

foundational prerequisites, for purpose A.

Lastly, the Court of Appeals conclusion regarding the circuit court’s ruling runs

contrary to the understanding of Petitioner’s trial and appellate counsel, the trial and

appellate attorneys representing the State, and, even, the circuit court. This makes

it difficult to swallow the Court of Appeals assertion that “no reasonable attorney in

trial counsel’s position would have believed that the court limited the photo to

demonstrative use.”

Not only was the Court of Appeals the first and only entity to raise this

argument—it also was the only one to weigh in on it. Though the Court of Appeals

saw ambiguity where no one else had, the Court of Appeals did not give the circuit

court or the parties notice of or an opportunity to be heard on this issue. In fact, in a

motion for reconsideration, Petitioner challenged the Court of Appeals determination

in this regard and requested, at the very least, that the Court of Appeals remand the

case to the circuit court so the circuit court could tell the Court of Appeals what the

ruling was, rather than vice versa, and the Court of Appeals refused. (App. 21a; Mot.

For Recons. 12/17/19.)

20

Permitting the Court of Appeals to revise procedural historical facts poses

substantial problems evidenced by this case. On appeal, the record is king. What the

Court of Appeals has essentially done here is change the record on appeal. It not only

“found” the circuit court’s ruling to be contrary to the parties’ and the circuit court’s

understanding, but, in doing so, it rendered portions of the record essentially

nonexistent by finding that the circuit court disregarded the balance of the State’s

offer of proof. How can a party preserve and formulate issues for appeal if the Court

of Appeals is permitted to reinterpret, alter, or excise portions of the record?

Permitting the Court of Appeals to rewrite the record and revise procedural historical

facts without deference to the circuit court renders a defendant’s right to appeal

meaningless.

This Court recently decided United States v. Sineneng-Smith, 590 U.S. ___

(2020) (No. 19-67), in which it held that the Ninth Circuit panel’s drastic departure

from the principle of party presentation—by reframing the issues and inviting other

organizations to file amicus briefs on the reframed issues, pushing Sineneng-Smith

and the issues she raised to the side—constituted an abuse of discretion. The Court

pointed out that in our justice system, the courts are designed to be neutral arbiters

who “do not, or should not, sally forth each day looking for wrongs to right.” Id.

(quoting United States v. Samuels, 808 F. 2d 1298, 1301 (8th Cir. 1987) (Arnold,

J., concurring in denial of reh'g en banc)). If it is contrary to the design of our system

to have appellate courts act as advocates by reframing the legal issues on appeal, does

21

it not break our system to have appellate courts rewriting the historical record of a

case to the benefit of one party over another?

The actions of the Court of Appeals in disregarding and manipulating the record

so it could change the rules of the game to fix the outcome was the antithesis of fair.

By doing so, the Court of Appeals denied Petitioner the fundamental fairness and

meaningful review of the merits of his appeal guaranteed to him by the Due Process

Clause. There was a fair way to resolve the issue if the Court of Appeals really had

concerns about the meaning of the evidentiary ruling—it could have remanded the

case to the circuit court for further proceedings. Instead, the Court of Appeals tossed

aside process and fair play and wrote the record it wanted.

Since the Court of Appeals refused to reconsider its erroneous holding or remand

this case to the circuit court for clarification and the Supreme Court of Wisconsin

then denied discretionary review, Petitioner may never be able to obtain meaningful

review of the merits of his appeal if he is denied relief in federal court. While he could

attempt to postconviction relief in the circuit court—possibly by alleging

postconviction counsel was ineffective for misconstruing the ruling and therefore not

properly identifying trial counsel’s errors—he would be relying on the circuit court,

which already agreed with Petitioner’s construction of the evidentiary ruling, to

revise its ruling to match the Court of Appeals decision. Unless it did so and concluded

Petitioner’s postconviction counsel was ineffective in misconstruing that ruling,

Petitioner would again be denied meaningful appellate review on the merits.

22

Being denied review on the merits is particularly unjust here considering the

Court of Appeals acknowledged that, had it not changed the circuit court’s evidentiary

ruling, Petitioner would have suffered prejudice if the jury was led to consider the

photograph as substantive evidence and this factored into its verdict. (App. 16a.) The

Court of Appeals itself relied on the gun photograph as evidence corroborating BMJ’s

recanted prior inconsistent statements in upholding the sufficiency of Petitioner’s

felon in possession of a firearm conviction and stated that the State’s direct

examination of BMJ “arguably raised the inference that the photo showed the gun

Smith allegedly possessed when he allegedly used it to threaten her.” (App. 15a, 17a.)

Considering the State’s direct suggested the photograph was taken on BMJ’s couch,

the background of the gun photograph was red, and the jury saw a photograph of

BMJ’s red living room furniture, the likelihood the jury made this inference was made

is rather high. (2a, 68a-69a; Jury Trial Exs. 2, 12.)

Petitioner asks that this Court protect his right to due process on appeal and

reaffirm the integrity of the justice system by granting review and holding that due

process prohibits appellate courts from revising the historical record on appeal.

23

II.

This Court should hold that prior inconsistent statements are

insufficient to support guilt beyond a reasonable doubt consistent

with due process considerations unless such statements are

accompanied by independent, reliable evidence that corroborates

each essential element of the crime.

A. There is significant disagreement across jurisdictions regarding

whether and what corroboration is required for a prior inconsistent

statement to constitute sufficient evidence to support a conviction.

In California v. Green, 399 U.S. 149, 151-52, 170 n.19 (1970), this Court was

presented with a case in which the evidence in support of the conviction “rest[ed]

almost entirely” on a witness’s prior statements which were deemed inconsistent with

his trial testimony and admitted as substantive evidence against the defendant. The

Court therein did not confront whether prior inconsistent statements alone may

sustain a conviction consistent with due process. Rather, the narrow question this

Court confronted, and its concomitant holding, was limited to whether such

statements could be admissible as substantive evidence of guilt consistent with the

Confrontation Clause. Id. at 155, 164, 170. This Court ultimately held that the use of

prior inconsistent statements as substantive evidence of guilt at criminal trials does

not violate the Confrontation Clause—but did not address whether such evidence,

alone, could suffice to support a conviction consistent with due process. Id. at 164,

170. Though, in its parting, the Court did note the sufficiency concerns, under the

facts of the case, were “not insubstantial.” Id. at 170 n.19.

Jurisdictions have since struggled with whether and what corroboration is

necessary for such statements to constitute sufficient evidence to support a criminal

conviction and whether a certain level of corroboration is necessary to comport with

24

the requirements of due process. Numerous jurisdictions have addressed such issues

with mixed results.

In 1998, the court in United States v. Bahe, 40 F. Supp. 2d 1302 (D.N.M. 1998),

addressed such questions in the course of reviewing a conviction for aggravated

sexual abuse of a child. While other evidence was introduced which established that

the defendant had sexually molested another niece in the past, the defendant had the

opportunity to commit the crime charged, and children often recant abuse allegations,

“the only substantive evidence of the sexual abuse charged in the indictment was a

prior, inconsistent out-of-court statement, recanted at trial by the complaining

witness.” Id. at 1305. Faced with a case so lacking in evidence, the district court

looked to other jurisdictions, reviewing “well over 100 cases challenging the

sufficiency of the evidence,” largely in child sexual abuse cases. Id. The court was

“unable to find a single case in which a conviction was sustained with as little

evidence of the crime charged as in the case at bar” and noted that “state and federal

courts have nearly uniformly concluded that there was insufficient evidence to

support the conviction” in cases where an inconsistent out-of-court statement

admitted as substantive evidence was the only evidence presented. Id. at 1305, 1307.

While most jurisdictions in the cases digested by the court consistently concluded on

appeal that such evidence was insufficient to support the conviction, there exists no

general consensus and some disagreement over whether such evidence, standing

alone, can ever be sufficient to sustain a conviction.

25

The Bahe court identified just one case—Ramsey v. State, 448 S.E.2d 790 (Ga.

App. 1994)—that affirmed a conviction based solely on a recanted out-of-court

statement. Bahe, 40 F. Supp. 2d at 1308. More recently, the Pennsylvania Supreme

Court has similarly held that “a conviction which rests solely on the prior inconsistent

statements of witnesses who testify at trial, where such statements were properly

admitted, but recanted at trial, does not offend due process….” Commonwealth v.

Brown, 52 A.3d 1139, 1184 (Pa. 2012).

Another court—in Acosta v. State, 417 A.2d 373, 377-78 (Del. 1980)—concluded

such evidence alone could support a conviction, but, at least under the facts of that

case, it was reversible error to not first caution the jury “as to the unusual care that

must be taken before convicting a defendant of a particular offense solely on the outof-court statement of the victim inconsistent with her own in-court testimony.”

The Bahe court concluded that “the majority of states to address the issue have

gone so far as to adopt a per se rule that a prior inconsistent statement, recanted at

trial, is alone insufficient to support a conviction”—specifically identifying Alaska,

California, Florida, Missouri, Montana, Utah, and Wisconsin. Bahe, 40 F. Supp. 2d

at 1308. However, even in many of those states, the law is not quite so clear-cut. For

instance, though State v. Pierce, 906 S.W.2d 729, 735 (Mo. App. 1995), held that “a

conviction based solely on a prior statement, though admissible via statute, falls short

of due process protection,” Missouri has apparently since abandoned the requirement

of corroboration in such cases. See State v. Betts, 559 S.W.3d 47, 54-55 (Mo. App.

2018) (“[I]n State v. Porter, [439 S.W.3d 208, 212-13 (Mo. banc 2014),] the Missouri

26

Supreme Court rejected the Western District’s reasoning in Pierce, and expressly

abolished the corroboration rule and the doctrine of destructive contradictions, which

were the legal basis of the court’s holding in Pierce.”). Furthermore, the Wisconsin

case cited by Bahe, 40 F. Supp. 2d at 1308, was an unpublished case with no

precedential value and Wisconsin has not since addressed this issue.

Three states—Hawaii, Vermont, and New Jersey—“declined to adopt a per se rule

but have concluded that a prior inconsistent statement may be sufficient to support

a conviction only if it possesses certain indicia of reliability,” and identified “fifteen

factors for the trial court to consider in assessing the reliability of an inconsistent outof-court statement presented as the only substantive evidence of the offense in order

to determine whether the statement was sufficient to sustain the conviction.” Bahe,

40 F. Supp. 2d at 1308-09.

A few federal courts, aside from the Bahe court, have addressed this issue. In

United States v. Orrico, 599 F.2d 113, 118-19 (6th Cir. 1979), the Sixth Circuit did

not establish a per se rule requiring corroboration for prior inconsistent statements,

but did conclude, under the facts of that case, that the Government, “having offered

such statements as the sole evidence of a central element of the crime charged,…has

failed to sustain its burden of proving guilt beyond a reasonable doubt.” The Bahe

court similarly did not adopt a per se rule, but concluded that it could not allow the

conviction to stand as the evidence presented by the Government failed to

demonstrate anything more than “mere suspicion or possibility of guilt.” Bahe, 40 F.

Supp. 2d at 1310-11, 1313-14.

27

As evidenced by the above, there is disagreement among jurisdictions as to

whether corroboration is necessary for a prior inconsistent statement to constitute

sufficient evidence of guilt. But it is not merely whether such corroboration is

necessary—courts also disagree about what corroboration is required. As noted

above, some jurisdictions merely require that the prior inconsistent statement, to be

sufficient to sustain the conviction alone, must be found to meet certain standards of

reliability. State v. Mancine, 590 A.2d 1107, 1115-16, 1119 (N.J. 1991) (holding

“substantive elements of a criminal charge may be proven through a prior

inconsistent statement alone” and corroboration of the contents is not necessary

provided the statement meets the evidentiary requirements for admission as

substantive evidence, including a requirement that the statement be audio-recorded,

signed, or under oath if offered by the party calling the witness and survive

application of a fifteen factor test designed to further assess the reliability of such

statements); State v. Robar, 601 A.2d 1376, 1380-81 (Vt. 1991) (adopting the holding

of Mancine and concluding the witness’s prior inconsistent inquest testimony—the

sole evidence identifying the defendant as the perpetrator of the burglary—was

insufficient to sustain the defendant’s conviction).

Regarding reliability, the timing of the prior statement has been found to be of

significant import. See Robar, 601 A.2d at 1380-81 (finding the witness’s prior

inquest testimony did not meet the test for reliability in part because it was given six

months after the event in question). In Vogel v. Percy, 691 F.2d 843, 846-47 (7th Cir.

1982), the Seventh Circuit applied the five-factor test established in United States

28

v. Leslie, 542 F.2d 285 (5th Cir. 1976), for determining whether substantive use of a

prior inconsistent statement would comport with due process, which test includes a

requirement that the “statement was made shortly after the events related and was

transcribed promptly.” Finding the statement given on the morning after the robbery

to satisfy the timing factor, the court further noted “[t]he opportunity for fabrication

and concomitant problems of reliability are minimized where a statement is given to

the police promptly following the events related therein.” Vogel, 691 F.2d at 847.

Other jurisdictions have required some evidence corroborating the contents of the

prior inconsistent statement, though insufficient on its own to establish each element

of the crime. Alaska v. Nunn, 845 P.2d 435, 441 (Alaska Ct. App. 1993) (clarifying

corroborating evidence required by Brower v. State, 728 P.2d 645 (Alaska Ct. App.

1986) “need not take any specific form, and it need not independently establish the

crime” but is sufficient when it “induces a rational belief in the truthfulness of a

witness’ testimony”); City of Helena v. Strobel, 390 P.3d 921, ¶18 (Mont. 2017)

(“The corroborating testimony does not have to be sufficient, standing alone, to prove

guilt. It instead must ‘support’ the elements of the offense established by the

substantive evidence that the prior inconsistent statement supplies.”). The Montana

Supreme Court did, however, note the need for the corroborating evidence to be

reliable and independent of the prior inconsistent statement:

In Giant, we further clarified that sufficient corroboration of a prior

inconsistent statement could not be found in other evidence that, by

itself, could not constitute sufficient evidence of guilt. [State v.] Giant,

[37 P.3d 49] ¶¶ 39-40….“Holding that two forms of evidence, each

unreliable in its own right, nonetheless, when taken together, are

sufficient to prove guilt beyond a reasonable doubt, accords the sum of

29

the evidence a characteristic trustworthiness that neither of its

constituent parts possesses.” Giant, ¶ 39.

By contrast, when independent evidence corroborates a prior statement,

the fact-finder may use that evidence in evaluating witness credibility

and decide which statement is believable.

State v. Torres, 299 P.3d 804, ¶¶25-26 (2013).

Still others have found insufficient corroboration where there is no evidence, aside

from the prior inconsistent statement, that corroborates an essential element of the

offense. See In re Miguel L., 649 P.2d 703 (Cal. 1982) (though testimony was

presented that substantiated a burglary had occurred and items had been taken, the

evidence was insufficient to sustain guilt as “[n]o evidence other than [an alleged

accomplice’s] prior unsworn statements, which were repudiated at trial, tends to

connect appellant to the [] burglary.”); State v. Ramsey, 782 P.2d 480, 482-83, 48485 (Utah 1989) (though there was “substantial evidence that the daughter had been

abused, that defendant had abused her directly, that the boy had also abused her

directly, and that defendant had ‘taught’ his son to simulate intercourse,” the court

concluded the evidence was insufficient to establish a critical element of the charge—

that defendant caused the boy to take indecent liberties with the girl—as the only

evidence thereof was the boy’s recanted, unsworn prior inconsistent statement).

B. Whether a recanted, prior inconsistent statement alone can satisfy

the due process requirement of sufficient evidence to support a

conviction is an important constitutional question that requires this

Court’s guidance.

In Jackson v. Virginia, 443 U.S. 307, 316, 317-318 (1979), this Court concluded

that “the due process guaranteed by the Fourteenth Amendment [necessitates] that

no person shall be made to suffer the onus of a criminal conviction except upon

30

sufficient proof—defined as evidence necessary to convince a trier of fact beyond a

reasonable doubt of the existence of every element of the offense” and that a state

conviction that does not meet this standard “cannot constitutionally stand.”

Consequently, the sufficiency of evidence necessary to sustain a conviction is a

constitutional due process issue. Numerous courts have raised constitutional due

process concerns when addressing whether recanted, prior inconsistent statements

alone can sustain a conviction, with some explicitly concluding that such evidence

alone could not constitutionally sustain convictions. In re Miguel L., 649 P.2d at 709

(“To affirm appellant’s wardship adjudication would require this court to hold that a

finding of criminal conduct may be based solely on an accusation which not only lacks

the traditional indicia of trustworthiness, but also comes from an unreliable source.

Constitutional requirements of due process preclude this court from reaching such a

holding.” (citing Jackson, 443 U.S. at 316)); State v. White Water, 634 P.2d 636,

639 (Mont. 1981) (citing to Green, 399 U.S. at 163-64 n.15 (1970), and Bridges v.

Wixon, 326 U.S. 135, 153-54 (1945),in noting that “such evidence may be barred by

due process considerations regarding the reliability of the evidence”); Ramsey, 782

P.2d at 483 (“A conviction not based on substantial reliable evidence cannot stand. It

is a ‘violation of due process to convict and punish a man without evidence of his

guilt.’” (quoting Thompson v. City of Louisville, 362 U.S. 199, 206 (1960))). The

Bahe court itself raised due process as a concern:

…Similarly, the Missouri Supreme Court explained, “[t]he United

States Supreme Court’s language in Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979), looms like a cloud over

the idea that, somehow, a conviction based solely on a out-of-court

31

inconsistent statement, satisfies due process. Due process limits the

jury’s ability to convict. Id. at 319, 99 S.Ct. at 2789. The Court has long

acknowledged that due process prohibits a criminal conviction except on

proof beyond a reasonable doubt. Id. at 316, 99 S.Ct. at 2789. This rule

requires more than a ritualistic trial. Id.” State v. Pierce, 906 S.W.2d

[729] at 735.

….

…Likewise, the most basic component of due process in our system of

criminal justice – the requirement that the government must prove its

case beyond a reasonable doubt – cannot be disregarded, no matter how

offensive the crimes alleged. This court cannot allow a conviction to

stand “based on mere suspicion or possibility of guilt.” United State v.

Yoakam, 116 F.3d [1346] at 1349 [(10th Cir. 1997)]; United States v.

Plenty Arrows, 946 F.2d [62] at 65 [(8th Cir. 1991)].

Bahe, 40 F.Supp at 1310-11, 1313.

Until relatively recently, concerns over convictions resting solely on recanted,

prior inconsistent statements would not have been an issue. As the Orrico court

noted, at common law, such statements could have only been used as impeachment

evidence, not as substantive evidence. Orrico, 599 F.2d at 117. Consequently, it was

clear that they could not have provided sufficient evidence, standing on their own, to

support a conviction. Only in modern jurisprudence have we seen state and federal

courts, in varying forms with varying conditions and attendant rules, begin to permit

utilization of prior inconsistent statements as substantive evidence of guilt. In

jurisdictions like Wisconsin, wholesale inadmissibility of such statements as

substantive evidence was nearly immediately replaced with wholesale admissibility

as substantive evidence—with no restriction on the type or quality of the prior

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statement at issue. 2 As the review of cases in Bahe shows, convictions are being

based solely on prior inconsistent statements—then being challenged and largely

overturned due to the dearth of evidence. Bahe, 40 F. Supp. at 1307-09. As the Bahe

court noted in addressing the cases it reviewed that had confronted this issue:

All of these courts have recognized that a conviction based solely on an

inconsistent, unsworn and uncross-examined out-of-court statement

runs contrary to the most basic premise of our criminal justice system.

Long ago the Supreme Court expressed its fear that the admission of

unsworn prior inconsistent statements “would allow men to be convicted

on unsworn testimony of witnesses — a practice which runs counter to

the notions of fairness on which our legal system is founded.” Bridges v.

Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, p. (1945); see also

United States v. Shoupe, 548 F.2d 636, 643-44 (6th Cir.1977) (“Foremost

among [the notions of fairness upon which our system is based] is the

principle that man should not be allowed to be convicted on the basis of

unsworn testimony.” Quoting United States v. Morlang, 531 F.2d 183,

190 (4th Cir.1975)).

40 F. Supp. at 1309.

The court in State v. Moore, 485 So.2d 1279, 1281 (Fla. 1986), noted that “the

risk of convicting an innocent accused is simply too great when the conviction is based

entirely on prior inconsistent statements.” The use of recanted, prior inconsistent

statements to sustain a conviction without reliable, independent evidence

corroborating the essential elements of the offense raises serious constitutional due

process concerns that should be addressed by this Court.

2

Under Wis. Stat. §908.01(4), a prior statement is not hearsay if the statement is inconsistent with

the declarant’s testimony and the declarant testifies at the trial or hearing and is subject to crossexamination—there are no limits regarding the circumstances under which the prior statement was

made (e.g., written, recorded, signed, under oath, or subject to cross-examination).

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C. Petitioner’s case presents the ideal vehicle for this Court to address

this issue and to rectify the State courts’ violation of Petitioner’s

constitutional due process rights.

In the case at bar, BMJ did not deny making the prior statements at issue, but

repeatedly testified that they were lies and that she had fabricated the entire

situation that was the subject of those statements—offering a full recantation of her

prior statements regarding the October 28, 2014, incident that prompted the felon in

possession of a firearm charge. (App. 3a, 45-72.) The prior statements were unsworn,

made to a law enforcement officer more than two months after the alleged incident

purportedly occurred. (App. 2a, 49a.)

While the State presented, and the circuit court and Wisconsin Court of Appeals 3

credited as corroborative, photographs of a hole in a wall and a scar on BMJ’s arm as

evidence in support (App. 17a, 38a), this evidence only obtains its relevance from

BMJ’s recanted, prior inconsistent statement. The State offered no independent

evidence establishing that the hole in the wall or the scar on BMJ’s arm were made

by a bullet. Without BMJ’s recanted, out-of-court statements, the hole in the wall was

just a hole and the scar on her arm was just a scar—with unknown origins. During

her trial testimony, BMJ specifically testified that no bullet went into the wall. (App.

60a.) BMJ further testified that she did not have bullet wounds on her arm and that

the scars were on her arm were the result of some other injury. (App. 59a, 66a.)

3

The Wisconsin Court of Appeals also credited the gun photograph as corroborative. (App. 17a.)

However, as further discussed in section I above, this was not substantive evidence that could

corroborate BMJ’s recanted, unsworn, prior inconsistent statements and the conclusion of the Court

of Appeals to the contrary was erroneous and contrary to the record.

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Furthermore, the photographs did not corroborate an essential element of the crime—

that Petitioner possessed a firearm.

Such unreliable evidence—an old scar and a hole in a wall documented two

months after the alleged incident—cannot corroborate other unreliable evidence—

BMJ’s recanted, unsworn, prior inconsistent statements made two months after the

alleged event—sufficient to sustain a conviction consistent with due process. No

independent, reliable evidence was presented that could corroborate BMJ’s recanted,

prior inconsistent statements on an essential element of the offense—Petitioner’s

possession of a firearm on the date in question. The conclusions of the postconviction

and appellate courts that there was sufficient evidence to uphold Petitioner’s

conviction were errors of constitutional magnitude. A conclusion contrary to the lower

courts would be dispositively reverse Petitioner’s conviction for felon in possession of

a firearm and due process concerns mandate that disposition.

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CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully submitted this 16th day of October, 2020.

________________________________

Dana L. LesMonde

State Bar No. 1067888

Attorney for Petitioner Deandre M. Smith

LesMonde Law Office

354 W. Main St.

Madison, WI 53703

(608) 257-3176

lesmondelaw@outlook.com

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