STATE v. Mel: Upholding Sec. 809.32(4) and Clarifying Counsel Rights in Discretionary Appellate Review in Wisconsin

Introduction

In the landmark case of STATE of Wisconsin v. Melvin Mosley (102 Wis. 2d 636), decided on June 30, 1981, the Supreme Court of Wisconsin addressed pivotal issues concerning appellate rights and procedural fairness in the state's two-tiered appellate system. The defendant, Melvin Mosley, was convicted of two counts of armed robbery and subsequently appealed his conviction on several grounds, including the constitutionality of identification procedures and the adequacy of legal representation during his discretionary review process. This commentary delves into the court's comprehensive analysis, the precedents cited, the legal reasoning employed, and the broader implications of the decision on Wisconsin's legal landscape.

Summary of the Judgment

The Supreme Court of Wisconsin reviewed the decision of the Court of Appeals, which had affirmed Mosley's conviction on two counts of armed robbery. Mosley challenged the conviction on the basis of unconstitutional out-of-court identification procedures, impermissible multiplicitous charging, and the alleged deprivation of legal representation during his discretionary review by the Supreme Court. The Supreme Court upheld the Court of Appeals' decision, affirming both convictions and ruling that sec. 809.32(4), Statutes, does not constitutionally deprive an indigent defendant of legal representation when requesting discretionary review. The court concluded that the identification procedures were constitutionally sound and that the multiplicitous charges did not violate double jeopardy principles.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to underpin its decisions:

ANDERS v. CALIFORNIA (386 U.S. 738, 1967): Established procedures ensuring indigent defendants have meaningful access to appellate review, particularly when appointed counsel declines to pursue an appeal.
DOUGLAS v. CALIFORNIA (372 U.S. 353, 1972): Addressed the necessity of providing counsel for discretionary appeals beyond an initial appeal of right.
ROSS v. MOFFITT (417 U.S. 600, 1974): Limited the extension of Douglas, holding that states are not required to provide counsel for discretionary appellate reviews beyond the first appeal.
STATE v. RABE (96 Wis.2d 48, 291 N.W.2d 809, 1980): Discussed double jeopardy concerns in multiplicitous charging.
MANSON v. STATE (1981): Addressed impermissible multiplicitous charging in the context of double jeopardy.
POWELL v. STATE (86 Wis.2d 51, 271 N.W.2d 610, 1978): Established criteria for evaluating the permissibility of identification procedures.
STATE v. McDONALD (443 P.2d 651, 1968): Clarified what constitutes taking property from a person or their presence under robbery statutes.

These precedents were instrumental in guiding the court's interpretation of statutory provisions, particularly sec. 809.32(4), and in assessing the validity of Mosley's claims regarding identification procedures and charging practices.

Legal Reasoning

The court's legal reasoning can be dissected into two primary components: the constitutional challenge to sec. 809.32(4) and the examination of Mosley's claims regarding identification procedures and multiplicitous charging.

1. Constitutionality of Sec. 809.32(4): Mosley contended that this statute unconstitutionally deprived indigent defendants of the right to legal representation during their discretionary review by the Supreme Court. The court analyzed this claim in light of precedents like Anders and Douglas, determining that while the right to counsel is fundamental during trials and mandatory appeals, it does not extend to discretionary reviews. The reasoning was that discretionary reviews are akin to granting a favor rather than a guaranteed right, and thus, the state is not constitutionally obligated to provide counsel in these instances.

2. Identification Procedures and Multiplicitous Charging: Regarding the identification procedures, the court evaluated whether the photo-array was suggestive enough to violate due process, referencing POWELL v. STATE. It concluded that the presence of a unique identifying feature (the tattoo) did not render the identification impermissibly suggestive. Additionally, the court addressed the multiplicitous charging claim under double jeopardy principles, referencing STATE v. RABE. It determined that the two counts of robbery involved distinct facts and victims, thereby not violating double jeopardy.

Impact

This judgment has significant implications for the Wisconsin legal system, particularly in the realms of appellate procedure and constitutional rights of indigent defendants. By upholding sec. 809.32(4), the court affirmed the state's discretion in handling discretionary reviews without mandating additional legal representation. This reduces the state's burden in providing counsel for every discretionary review, allowing the appellate system to function more efficiently.

Furthermore, the affirmation of proper identification procedures and the clarification on multiplicitous charging provide clear guidelines for law enforcement and prosecutorial practices. It underscores the importance of distinguishing between different victims and property types to avoid double jeopardy violations, thereby ensuring fair and just charging practices.

Complex Concepts Simplified

Sec. 809.32(4), Statutes: This statute governs the procedures when an indigent defendant wishes to file a petition for discretionary review with the Supreme Court of Wisconsin after their appeal to the Court of Appeals has been deemed frivolous or without merit by their attorney.

Discretionary Review: Unlike mandatory reviews, discretionary reviews are not automatic and are granted based on the significance of the legal questions involved or other specific criteria.

Multiplicitous Charging: This refers to the practice of charging a defendant multiple times for the same criminal act. Under double jeopardy principles, a defendant cannot be tried multiple times for the same offense based on the same facts.

Photo-Array Identification: A method used by law enforcement where multiple photographs are shown to witnesses to help them identify a suspect. The procedure must be conducted in a manner that avoids bias or suggestiveness to ensure reliable and fair identification.

Double Jeopardy: A constitutional protection that prohibits an individual from being tried twice for the same offense in the same jurisdiction.

Conclusion

The STATE of Wisconsin v. Melvin Mosley decision serves as a critical touchstone in understanding the balance between efficient appellate procedures and the constitutional rights of defendants. By affirming the constitutionality of sec. 809.32(4), the court delineated the boundaries of legal representation in discretionary appellate reviews, reinforcing the state's authority to manage its judicial resources effectively. Additionally, the affirmation of the identification procedures and the rejection of multiplicitous charging claims provide clarity and direction for future prosecutions, ensuring that justice is administered without overstepping constitutional protections like double jeopardy.

Overall, this judgment underscores the judiciary's role in interpreting statutes within the framework of established precedents, ensuring that legal processes evolve while maintaining foundational protections for individuals within the criminal justice system.