Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton

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Category: Criminal Law & Process, Wisconsin Criminal Law & Process, Wisconsin Supreme Court

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.

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8 Responses to “Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton”

  1. Jennifer Wiers Says:

    I actually came across a similar scenario to the Minnesota case a couple years ago while interning in the felony court in Milwaukee County. Several cases came up where the defendant was charged with felony possession of a firearm and the defense counsel was arguing that the jury could not be told about the prior felony conviction because that would be inadmissible other acts evidence. I know that at least one Milwaukee County judge bought this argument and ended up having the prosecution “prove up” the prior felony conviction to the bench outside the presence of the jury and then the jury only determined whether the defendant had in fact possessed the firearm. I am not sure if any other courts followed suit on this, and I only vaguely remember the discussions that occurred in the courthouse about this but I think it does play into this discussion. Like with an OWI offense, it would seem to me that a jury would be likely to infer that the prior felony conviction was also for guns or perhaps drugs (since everyone knows drugs and guns go together) and may end up seeing a pattern like the court was concerned about in Alexander.

    I will really be interested to see how it plays out with respect to other types of cases.

  2. Brent Simerson Says:

    Thank you very much for the comment, Jen. I was unaware that courts in Milwaukee Co. have addressed this question (although it seems to me that this argument would come up every now and then). Most extra-jurisdictional cases I read addressed the procedure that you mentioned–a court bifurcating the trial into a jury trial for possession of a firearm followed by either a jury or bench trial on the felony status. However, most jurisdictions find this type of procedure to be an abuse of the trial court’s discretion. I agree with your comment on the similarities between how a jury inteprets a prior felony in a FPF case and how a jury would intepret a conviction, suspension, or revocation in an OWI case. In this narrow context, I believe that adherence to tradition and formality could deprive the defendant of a fair trial.

  3. Ron Tusler Says:

    I’m not sure I agree with our sister state. Is there any other reason why someone is not allowed to possess a firearm other than being a felon? If there is not, at least one in twelve jurors will likely figure out that the defendant is a felon, and share the information during deliberations. If it is obvious to the jury that the defendant is a felon, why add another hoop that could be reversible error for the judge to jump through. The cost of appeal and re-trial on a matter obvious to the jury is prohibitive.

    This is a well-written article. Great Job!

  4. Brent Simerson Says:

    Thanks for contributing to the discussion on this issue. Under Wis. Stat. § 941.29, possession of a firearm, an individual may be ordered not to possess a firearm if he or she is involuntarily committed for mental illness or drug dependance under Wis. Stat. § 51.20, or if he or she is ordered not to do so pursuant to a harassment restraining order under Wis. Stat. § 813.125. These are the only two situations under the statute that I am aware of where an individual is not entitled to possess a firearm absent a felony conviction (or felony conviction analog). As a practical matter, I agree with your statement that jurors might infer that the reason the individual is not entitled to possess a firearm is because he or she is a felon. After all, this formulation of a violation of the statute is undoubtedly the most common, and I think the public is aware that felons are prohibited from possessing firearms. However, as an evidentiary matter, I don’t think the court should allow the State to submit evidence to that effect. There should be a division between how the State may affirmatively influence the jury’s decision (through, i.e., submitting evidence) and the jurors’ own assumptions concerning why the individual is being prosecuted. I don’t believe that the evidence is relevant (beyond proving a stipulated and undisputed element), nor do I believe that it is sufficiently probative to outweigh the attending prejudice. On the other hand, all seven Wisconsin Supreme Court Justices disagree with me in the context of the stalking offense. Your point is well-taken. Thanks for taking the time to respond.

  5. Matt Plummer Says:

    There is also a federal statute, 18 USC 922(g)(9) that prohibits possession of a firearm by any person convicted of an act of domestic violence, even if a misdemeanor. This year the Supreme Court interpreted this statute to also cover those convicted of crimes that were not charged as domestic violence, but where the victim was in a domestic relationship with the perpetrator. United States v. Hayes, 129 S. Ct. 1079 (U.S. 2009). Like a felony conviction, this prohibition sticks with the person for life.

  6. Brent Simerson Says:

    To add to what Matt contributed, I believe that the federal statute also contains a host of other firearm prohibitions not contained in the Wisconsin statute, such as a prohibition on individuals who have been dishonorably discharged from the military. Although I don’t confess to know very much about federal courts’ treatment of the statute, many federal circuits have concluded that a trial court abuses its discretion when it withholds an element of a crime from the jury. My guess is that, for the most part, federal case law parallels Wisconsin case law on this issue.

  7. Peter Heyne Says:

    Brent, Ron,

    I recently wrote a memo on disabilities for carrying firearms both under Wisconsin and federal law. On the federal level, a convicted felon has only two forms of relief if he or she wants to possess a firearm: (1) get the felony overturned or (2) get a Presidential pardon. 18 USC 925(c) establishes a two-tier way for relief: first, petition the Attorney General, and second, if denied, petition the local federal district court. However, there is a Catch-22. In 2003, the AG delegated his power under 18 USC 925(c) to restore firearms rights of convicted felons to the ATF. In the ATF’s own words, “Since October 1992, however, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals.” Thus, Congress has tied the ATF’s hands. As stated previously, 18 USC 925(c) permits a person to seek judicial review after a denial by the Attorney General (or now, the ATF). However, the Supreme Court held that “an actual adverse action on the application by ATF is a prerequisite for judicial review.” U.S. v. Bean, 537 U.S. 71, 76 (2002). “Inaction by ATF does not amount to a ‘denial’ within the meaning of § 925(c).” Id. at 75. Thus, until Congress decides to change its appropriation laws, the ATF will continue its inaction, and judicial review will not be available. As such, a person with a federal felony conviction cannot possess firearms, short of collaterally attacking his conviction or obtaining a Presidential pardon.

  8. Peter Heyne Says:

    Following up on the prior post, in Wisconsin a convicted felon has only two remedies: (1) getting the felony conviction overturned and (2) (illusory) federal relief. The not-absolute right to bear arms is guaranteed by Art I, sec. 25 of the Wisconsin Constitution. Wis. Stat. § 304.078 states that “every person who is convicted of a crime obtains a restoration of his or her civil rights by serving out his or her term of imprisonment or otherwise satisfying his or her sentence.” Further, “[t]he department or other agency [such as the WI Dept. of Corrections] shall list in the person’s certificate rights which have been restored and which have not been restored.”

    A recent federal case indicates that the WI DOC could and did restore a convicted felon’s right to bear arms. Hill v. United States, 118 F.Supp. 2d 910 (E.D. Wis. 2000). In his appeal of a federal felon-in-possession conviction, Hill argued that he had had his civil rights restored, including the right to bear arms, after serving the sentence for his underlying WI felony conviction. (18 U.S.C. 921(a)(20) removes the federal firearms ineligibility for any person who has had civil rights restored under the law of the jurisdiction of the conviction.) Hill filed an affidavit from Walter Dickey, Secretary of the WI DOC between 1983 and 1987 and a participant in the drafting of DOC’s administrative rules. In the affidavit Dickey stated that “all inmates who finished parole were issued discharge certificates as required by law,” and that DOC “discharge contained language to the effect that ‘Any civil rights lost as result of such judgments of conviction are restored by virtue of this discharge.’” Id. at 915. Dickey continued that “such discharge would not contain any express reservation regarding the right to own or possess a firearm.” Id. Hill also filed two discharges from two other individuals who satisfied their sentences and received discharge certificates without a firearms reservation. The district court noted that “Dickey’s uncontroverted affidavit establishes that it was the practice of the Wisconsin Department of Corrections to issue discharge certificates without stating any reservation concerning firearms.” Id. at 916. Accordingly, even though Hill could not produce his own such certificate, the court noted that it was reasonable to infer that Hill had received a certificate without a firearms reservation, and as such vacated Hill’s sentence for felon-in-possession. Nonetheless, it appears that the federal judge erred.

    Six year prior to Hill, when interpreting 18 U.S.C. 921(a)(20), a unanimous Supreme Court reached the opposite conclusion. Beecham v. United States, 511 U.S. 368 (1994). The facts of Beecham closely resemble those of Hill: in Beecham, one of the petitioners, Jones, had prior felony convictions from West Virginia, and West Virginia later restored his civil rights, presumably including the right to bear arms. Id. at 370. Jones was later convicted under the federal felon-in-possession statute. The District Court for the Northern District of West Virginia held that the state restoration of civil rights freed Jones from his federal disability, and so dismissed the indictment charging him with being a felon-in-possession. The Supreme Court affirmed the Fourth Circuit’s reversal, because a “state restoration of civil rights could not undo the federal disability flowing from a federal conviction.” Id. The Court concluded that persons with a federal felon-in-possession conviction can “take advantage of § 921(a)(20) only if they have had their civil rights restored under federal law.” Id. at 374. The Court did note that “[w]e express no opinion on whether a federal felon cannot have his civil rights restored under federal law,” though it did state that 18 USC 925(c) still provided the recourse of federal judicial review. Id. at 373 n.*. As previously discussed, federal judicial review is now impossible.

    Likewise, in the same year as Beecham, the Wisconsin Supreme Court upheld a felon-in-possession conviction despite a DOC certificate restoring any civil rights without a firearms reservation. State v. Thiel, 188 Wis.2d 695, 708, 524 N.W.2d 641 (1994). Though the court did not overtly address this issue, one can infer from its conclusion that § 941.29 preempts any DOC certificate restoring civil rights, and that in fact the DOC cannot restore a convicted felon’s right to bear arms. (I also confirmed this conclusion by speaking with the DOC’s chief legal counsel.) In sum, de facto, a Wisconsin convicted felon cannot possess firearms in perpetuity.

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