In January of this year, the Wisconsin Supreme Court unanimously affirmed the defendant’s conviction for stalking in State v. Warbelton, 2009 WI 6, 759 N.W.2d 557. In doing so, the court held that a defendant in a stalking case cannot prevent the State from submitting evidence of the existence of the defendant’s prior violent felony conviction, an element of the crime, by stipulating to the conviction before trial.
Stipulations to prior convictions became a powerful tool for defense attorneys in Wisconsin following State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989). A precursor to the United States Supreme Court’s ruling in Old Chief v. United States, the McAllister court held that the State could not submit evidence of the details of the defendant’s prior felony conviction if the defendant offered to stipulate to that element before trial. The court concluded that the details of the conviction were no longer relevant once the defendant stipulated to it. The State could satisfy the element by submitting a certified record of the defendant’s conviction to the jury.
The court in State v. Alexander addressed the derivative question left by McAllister: may the defendant completely prevent the jury from considering the prior conviction element by stipulating to the prior conviction before trial?
The Alexander court answered in the affirmative. The case concerned a defendant charged with operating a motor vehicle while intoxicated, third or subsequent offense. The State had to prove that the defendant had two or more convictions, suspensions, or revocations under Wisconsin’s vehicle laws. The Wisconsin Supreme Court found that, when the defendant stipulated to the prior offenses, the prejudicial effect of informing the jury of the prior offenses outweighed any probative value. Therefore, the jury should only have determined whether the defendant operated the motor vehicle while intoxicated.
The defendant in Warbelton argued that Alexander precluded the State or the court from informing the jury about his prior violent felony conviction. The Wisconsin Supreme Court disagreed, expressly limiting Alexander to OWI cases. The court found that, in terms of the convictions, suspensions, or revocations element in the OWI offense, (1) jurors were likely to infer that the prior convictions were also for an OWI offense; (2) jurors were likely to infer from the prior convictions that the OWI offense was part of a pattern of behavior; and (3) jurors were likely to infer from the prior convictions that the defendant likely committed an OWI offense on many other occasions without being caught. The court concluded that these prejudicial features did not exist in the context of a stalking offense and therefore refused to extend Alexander. As an aside, the court’s reasoning appears to leave the door open for courts to apply the Alexander rule to other offenses so long as the above factors are present. The court, however, was not clear on this point.
In the end, the Warbelton court held that the McAllister requirement — that the details of prior convictions, rather than the existence of the prior convictions, be withheld from jury — was sufficient to safeguard the defendant from the prejudice that attends prior convictions. Is this sound legal doctrine? Is it necessary in a felon in possession of a firearm case that the jury know that the defendant is a felon?
Other jurisdictions seem to think so. Six federal circuits and several states have concluded that the jury must be apprised of all elements of the offense, even status elements. The U.S. Court of Appeals for the First Circuit noted that if jurors are left in the dark about a key element of the crime, then jurors might question whether the elements submitted to them should constitute a crime at all. Jurors might question why a defendant is being charged with merely possessing a firearm when, under ordinary circumstances, possessing a firearm is legal.
One jurisdiction that strayed away from the majority was our sister state, Minnesota. In State v. Davidson, 351 N.W.2d 8 (Minn. 1984), the court found that the prejudice that attends the prior conviction element outweighed any probative value once the defendant stipulated to it. The proper procedure in a felon in possession of firearm case, the court explained, was to inform the jury that the defendant was not entitled to carry a firearm and that the sole determination the jury must make was whether the defendant possessed a firearm.
I personally find Minnesota’s approach persuasive, as it satisfies the argument made by the First Circuit while preventing the jury from knowing of the defendant’s prior conviction. After all, there are several statutory reasons why a defendant may not carry a firearm, such as issues with mental health. Other offenses, such as stalking, could be handled in a similar fashion. The jury need only know that, under Wisconsin law, the defendant is subject to prosecution under the given statute. The defendant’s status is irrelevant and should not be submitted to the jury.
I welcome any comments or responses to my take on this issue.
You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.