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COURT OF APPEALS
DECISION
DATED AND FILED
October 21, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin
ex rel. John M. Campbell,
Petitioner-Appellant,
v.
David H. Schwarz,
Respondent-Respondent.
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APPEAL
from an order of the circuit court for Adams County: patrick
j. taggart, Judge. Reversed
and cause remanded with directions.
Before Vergeront, P.J., Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. John Campbell appeals a
certiorari decision affirming the administrative denial of his motion to reopen
a probation revocation hearing based upon newly discovered evidence. For the reasons discussed below, we conclude
that Campbell
was entitled to have his revocation hearing reopened. Accordingly, we reverse the trial court’s
order and remand with directions that it grant the writ of certiorari.
BACKGROUND
¶2 Campbell
was convicted of three drug-related felony charges in Adams County Case No.
2001CF89, for which he was sentenced to one bifurcated prison term and two concurrent
terms of probation.
He was released to extended supervision
in 2003. The
Department of Corrections Division of Probation and Parole notified Campbell early in 2007 that it would seek to revoke his
extended supervision and probation based upon an altercation that had occurred in
Iowa, during which Campbell’s girlfriend was stabbed.
¶3 The only witness at the revocation hearing was a probation
agent who introduced a packet of revocation materials that included an Iowa police report of the incident, a summary of the
testimony Iowa prosecutors intended to
introduce at Campbell’s trial, and Campbell’s written
statement.
¶4 The Iowa police report related that the victim, Stacy
Russell, said she went into Campbell’s
house and found him in bed with another woman, Elisha Koppman. Russell got very upset and started a verbal
fight with Campbell. She then tried to leave the house, but Campbell followed her
outside, came up behind her and stabbed her in the back. Koppman told the police that Russell “went
crazy” upon finding her in bed with Campbell,
so she got up and left. Koppman also
said Campbell
told her the following day that he had stabbed Russell either by accident or to
protect himself. Campbell’s
stepmother, Marie Grems, informed police that Campbell called and told her that he had
stabbed Russell after she found him in bed with Koppman and he asked for her
help. When Grems arrived, Russell
refused to go to the hospital, so Grems stitched her up herself. The summary of anticipated testimony appears
to have been based nearly verbatim upon the statements contained in the police
reports.
¶5 Campbell’s
statement in the revocation materials asserted that the verbal argument that
followed Russell’s discovery of him in bed with Koppman
escalated into [Russell] coming after me. I saw [Russell] come at me w/ the knife. I rolled her off me. I then got up and went to the kitchen. [Russell] put the knife down and grabbed
another knife. She got a buck knife &
fell into a chair. She started swinging
at me w/ the other hand. She then went
at me with the hand. She then got
stabbed in the back.
Campbell
went on to state that he denied stabbing Russell. Counsel picked up on that last portion of Campbell’s statement, and
argued:
He indicates that she was coming at him when she was
stabbed. (inaudible) someone else may have done the actual injury to this
victim. There was another person in the
room who may have had incentive to act in the matter and that is Mr. Campbell’s
position is that, that [Russell] was injured by the other individual in the room,
that he had backed up and was, was facing her at the time but did not have
access to her back while this occurred.
The other person did.
¶6 The administrative law judge noted that Campbell “did not enter any evidence to
refute the Department’s hearsay, but argued that a third person caused the stab
wound. This version of events is
inconsistent with the statements of Russell, Koppman, and the client’s own
written explanation.” The ALJ then made a factual finding
that “Campbell
was out of control and used a knife to attack his girlfriend.” Based on that conduct, he concluded that Campbell had violated his
rules of supervision, and that single proven allegation was sufficiently
serious to warrant revocation.
¶7 Two months after Campbell’s
supervision and probation were revoked, an Iowa jury found him not guilty of stabbing
Russell based upon a claim of self-defense. According to Russell’s deposition and trial
testimony, neither of which were available at the time of the revocation,
Russell said she “went nuts” or “went into a rage” and “started breaking
things” when she found them in bed. She
said “I continued to break things and throw shit at John, and I grabbed the
knife and I started cutting up our bed and our pillows.” Next, “I remember we started wrestling in our
house, but when we finished we were out on the road somewhere.” The reason they were wrestling was that “he
was trying to stop me from breaking things and cutting things up.” She thought he must have disarmed her at some
point, because she didn’t have the knife anymore, but she was not sure when
that was. She also did not know exactly
at what point during the encounter she was actually stabbed, and admitted that
it could have been at a point when the knife was in her own hand or being
wrestled away from her. She could not
even say with certainty that Campbell
had stabbed her, but “assumed” he did.
¶8 Koppman testified that Russell was “really pissed off and
kind of irate, and she was yelling and stuff” when she discovered them in bed
together. As
Koppman was getting dressed and leaving, Russell was trying to pull Campbell out of the bed. When Koppman
went over to Campbell’s
place the next day, she saw the slashed bed, the bloody chair, and the mess
from the fight. Campbell
told Koppman that Russell had come at him with a knife and he thought he had
stabbed her while he was grabbing her hand with the knife. Koppman went
back later after Campbell
had been arrested and took pictures of the bed and chair, which were introduced
into evidence.
¶9 Grems testified that Campbell
called her to say that he had stabbed Russell, that she was bleeding, and that
he needed help. When Grems arrived, she
heard Russell saying that Campbell
had stabbed her. Grems tried to get Russell to go to the
hospital, but Russell refused because she was afraid she would be arrested and
she also did not want to get Campbell
in trouble. Campbell was crying the whole time Grems was
stitching Russell up, and Russell kept telling him it was not his fault. Russell told Grems that she had thrown glasses
and a deep-fat fryer at Campbell
and had taken a knife from the kitchen and cut up the bed. Later than night, Grems herself observed the
slashed bed with blood on it, a chair with blood on it, and glass all over the
place.
¶10 Campbell
testified that Russell was “drunk and yelling and screaming and getting all
crazy” when she found them in bed together. He said Russell chased Koppman out the door,
throwing stuff at her, then he heard her breaking glasses in the kitchen. Russell came back into the bedroom with a
fillet knife and tried to stab Campbell
while he was still in the bed. She
slashed the bed several times as Campbell
scooted away. Russell then ran back into
the kitchen, and Campbell
followed her. Russell set the fillet knife
down, threw a fryer at him, and then grabbed a foldable pocketknife and came at
him again. He pushed her down in a chair
while she was still trying to stab him, and was finally able to control her
arms. At that point Russell told Campbell that he had
stabbed her. He said he did not
intentionally stab her, and did not even know when she got hurt.
¶11 While considering an evidentiary issue during the trial, the Iowa trial court commented that, “when I look at the
facts of this case, it’s clear that [Campbell]
was not the initiator or the aggressor here.
She came into the -- the facts are undisputed that she entered the
house, unbeknownst to anybody, possibly without permission, and she immediately
started into a rage ….” The jury acquitted.
¶12 Campbell moved to reopen the
revocation proceeding based upon “both the acquittal and the evidence adduced
at [his] Iowa
trial regarding the stabbing incident.” Campbell’s
motion highlighted portions of the testimony of Russell, Koppman and Grems—as
well as his own testimony—that he argued undermined or contradicted the statements
contained in the police report and witness summaries presented at the
revocation hearing.
¶13 David Schwartz, the Administrator of the Division of Hearings
and Appeals, denied the motion to reopen. He first cited Wis. Admin. Code § DOC 331.08 for the proposition that
an acquittal on criminal charges for the conduct underlying an alleged
violation “shall not preclude” revocation for that same conduct. From that he reasoned that “the [Iowa] not guilty verdict
is not relevant and has no bearing on the outcome of these proceedings.” The
administrator then stated that the idea “that the argument of self-defense was
not known to Mr. Campbell and therefore, he was not able to argue this
defense at his revocation hearing” made no sense because “Campbell would have
known if he had acted in self-defense no matter what had happened at the
criminal trial.” The administrator
concluded that there was no legally compelling basis in the record to reopen
the hearing, without directly addressing why the trial testimony of Russell,
Koppman or Grems would not satisfy the criteria of newly discovered evidence.
¶14 Campbell
sought certiorari review. The circuit court denied his petition, and he
appeals.
STANDARD OF REVIEW
¶15 Our certiorari review of a revocation determination is limited
to considering: (1) whether the Division of Hearings and Appeal kept within its
jurisdiction; (2) whether it acted according to law; (3) whether its actions
were arbitrary, oppressive or unreasonable and represented its will rather than
its judgment; (4) and whether the evidence was such that the division might
reasonably make the decision in question. State ex rel. Simpson v. Schwarz,
2002 WI App 7, ¶10, 250 Wis. 2d 214, 640 N.W.2d 527.
DISCUSSION
¶16 The parties agree that a probationer seeking to reopen a
revocation hearing based upon newly discovered evidence must make a showing
analogous to that required to obtain a new trial in a criminal case. State ex rel. Booker v. Schwarz,
2004 WI App 50, ¶14, 270 Wis. 2d 745, 678 N.W.2d 361. Specifically:
(1) [t]he evidence must have come to the moving party’s
knowledge after [the revocation hearing]; (2) the moving party must not have
been negligent in seeking to discover it; (3) the evidence must be material to
the issue; (4) the testimony must not be merely cumulative to the testimony
which was introduced at [the hearing]; and (5) it must be reasonably probable
that a different result would be reached [at a new revocation hearing].
Id., ¶¶12, 15.
¶17 Campbell
asserts that it was not reasonable for the division to deny his motion to
reopen the revocation hearing in light of the sworn testimony produced at his subsequent
trial on the charge underlying the revocation, which resulted in acquittal. We will therefore examine the application of
the newly discovered evidence test to the acquittal itself, to the defendant’s
testimony at trial, and to the trial testimony of the prosecution’s witnesses,
Russell, Koppman and Grems.
¶18 It is beyond question that the acquittal itself came to Campbell’s attention after
the revocation hearing; that he was not negligent in failing to obtain it
sooner; and that it was noncumulative.
The division determined that the acquittal was not relevant (and thus,
we infer, not material and/or reasonably probable to lead to a different result
in the division’s view) because an administrative rule specifies that it would
not preclude revocation. See Wis.
Admin. Code § DOC 331.08. The fact that an acquittal would not, in and
of itself, preclude revocation,
however, does not mean that it would not be relevant
to the question whether revocation was warranted. See,
e.g., State v. Verstoppen, 185 Wis. 2d 728, 739, 519
N.W.2d 653 (Ct. App. 1993) (noting that an acquittal on criminal charges
following the revocation of probation “implicates the propriety of [the]
probation revocation”). Therefore, the
division was not acting according to law when it refused to take the acquittal
into consideration and examine whether it undermined confidence in the strength
of the evidence at the revocation proceeding.
¶19 Neither party presented testimonial evidence at the revocation
hearing, so the division had no opportunity to independently examine the
credibility of Campbell or the prosecution witnesses and make its own judgment
as to the weight of the evidence in relation to the applicable burdens of proof
in the two proceedings. Rather, the
revocation decision was based entirely on documentary evidence about what the
state of Iowa
intended to prove at trial. The fact that the state of Iowa
subsequently failed to prove the
crime charged is therefore plainly material to the question whether Campbell did or did not
commit the alleged probation violation leading to his revocation. We will consider whether the acquittal was
reasonably probable to lead to a different result at a reopened revocation
hearing in conjunction with the other evidence Campbell sought to introduce as newly
discovered.
¶20 The second piece of evidence Campbell sought to introduce at a reopened
revocation hearing was his own trial testimony that he either inadvertently
stabbed Russell or caused her to stab herself while he was attempting to
protect himself from her knife attack. We
conclude the division reasonably determined that Campbell’s trial testimony did not satisfy
the test for newly discovered evidence.
As the division observed, Campbell
obviously would have known already at the time of the revocation hearing
whether he had acted in self-defense.
Indeed, his written statement in the revocation proceeding asserted that
Russell had come at him with a knife and that he denied stabbing her. Therefore, Campbell’s own trial testimony could not
satisfy even the first element of the newly discovered evidence test.
¶21 The third piece of evidence Campbell sought to introduce at a reopened
revocation hearing was the trial testimony of the prosecution’s witnesses. The division’s decision failed to address the
significance of the testimony of Russell, Koppman and Grems, even though that evidence
was the crux of Campbell’s
motion. On appeal, the division concedes
that Campbell
learned of these witnesses’ trial testimony after the revocation proceeding;
that he could not have discovered it earlier because it did not yet exist; and
that it was not cumulative since no one testified at the revocation hearing. The division maintains, however, that the
trial testimony of the prosecution witnesses was neither material nor reasonably
probable to produce a different outcome.
¶22 The division characterizes the prosecution witness statements
contained in the police reports and the testimony given at trial as “remarkably
consistent,” and argues they “did not vary in any material way.” We disagree.
According to the statement the victim gave to police, the victim provided
only verbal provocation and was
attempting to leave when the defendant followed her outside and stabbed her there with a knife he presumably produced on his own. According to the victim’s trial testimony, she herself grabbed a knife at two
different points during the incident, slashed the bed and physically attacked Campbell, and
was then stabbed inside the house,
when Campbell
tried to disarm her. The victim’s trial
testimony that she had slashed the bed with a knife and physically attacked
Campbell before he stabbed her inside the house was further bolstered by Koppman’s
testimony that she saw Russell physically trying to pull Campbell from the bed before
she left and saw the slashed bed and bloody chair the following day, and by
Grems’ testimony that Russell said she was afraid she herself would be arrested
if she reported the incident and that Grems also saw the slashed bed, broken glass
and oil from the fryer.
¶23 The division specifically noted in its original decision that
there was no evidence at the revocation proceeding to refute the version of
events related in the statements to police. The victim’s subsequent admission
that she was the one who instigated the fight and introduced a knife into it,
and additional statements from other witnesses that supported that version of
events but were not included in the police report, directly contradict the
division’s finding that Campbell
stabbed Russell while he was “out of control.”
We therefore conclude that the trial testimony of the prosecution
witnesses was material to the question whether Campbell violated the conditions of his
supervision and parole.
¶24 Taking into account both the material evidence that the victim
testified she went into a rage and grabbed a knife and Campbell wrestled with
her to disarm her, and the material fact that a jury found the testimony of the
victim and other witnesses at trial sufficiently credible to acquit Campbell, there
is at least a reasonable probability that a decision maker looking at both the
information available during the revocation proceeding and the subsequent
information would conclude that Campbell had not violated the rules of his
supervision by stabbing Russell without justification. We therefore conclude the evidence does not
reasonably support the division’s determination that Campbell failed to satisfy all five elements
of the newly discovered evidence test.
¶25 Finally, the division argues that its refusal to reopen the
hearing was justified, even if all five factors of the newly discovered evidence
test were satisfied, because Campbell presented an alternate theory at the
revocation hearing that someone else may have stabbed Russell. Campbell
characterizes the division’s argument as attempting to add a sixth element to
the newly discovered evidence test. We
view it as more akin to a judicial estoppel argument—i.e., that Campbell
should be precluded from obtaining a new hearing at which he could present
testimony from the victim that would support his self-defense claim because he
previously argued an inconsistent theory that someone else stabbed her.
¶26 The doctrine of judicial estoppel precludes a party from
asserting one position during the course of litigation, only to later argue the
opposite. State v. Gove, 148 Wis. 2d 936, 944, 437
N.W.2d 218 (1989). A party asserting judicial estoppel must show: “(1) the
later position is clearly inconsistent with the earlier position; (2) the facts
at issue are the same in both cases; and (3) the party to be estopped convinced
the first court to adopt its position.” Mrozek
v. Intra Financial Corp., 2005 WI 73, ¶22, 281 Wis. 2d 448, 699 N.W.2d 54 (citation
omitted). We are not persuaded that
these elements have been established here.
¶27 First, it is not clear that Campbell’s revocation statement and trial
testimony are entirely inconsistent. It
has been his position all along that he was not even aware of when the victim
was stabbed, much less that he himself had stabbed her. The victim herself could not say when she was
stabbed or whether the knife might actually have been in her hand at the
time. If Campbell did not know when exactly the victim
was stabbed, he might also not have been aware whether Koppman was still
present at that time, since she had to get dressed before she left. Even assuming that a suggestion that a third
party might have actually stabbed the victim was clearly inconsistent with a
claim of self-defense, and that the basic facts were still the same, Campbell
certainly never persuaded the revocation official to adopt his position that a
third party had stabbed Russell.
¶28 We conclude that Campbell
was entitled to have his revocation hearing reopened based upon newly
discovered evidence. We therefore
reverse the order of the circuit court and remand with directions that it enter
a writ of certiorari to that effect.
By the Court.—Order reversed and cause
remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.