This post examines a recent opinion from the Court of Appeals of Wisconsin: State v. Grover, 2017 WL 663207
(2017). The court begins the opinion by
explaining that
Vickie M. Grover was convicted of stalking S.W., a
Wisconsin State Patrol trooper. On appeal, Grover challenges the sufficiency of
the evidence and the effectiveness of trial counsel. She also asks this court
to order a new trial in the interest of justice.
State v. Grover, supra.
It goes on to explain that
S.W. first met Grover when she
approached him at a gas station and asked him a question about her damaged
windshield. S.W. worked the overnight shift, and he generally began his shift
by getting gasoline for his squad car at a Sun Prairie gas station. Grover
drove a white Nissan Cube, a `distinct’ vehicle. S.W. testified that after that
initial encounter, he started noticing Grover's car frequently, with Grover
following him to whatever gas station he happened to visit. Grover would engage
him in `one-sided’ conversation `[a]lmost every night.’
S.W. testified that he became
`concerned’ about seeing Grover so often and he `started changing [his]
patterns’ regarding where he got gas and the route he would take to the
interstate. S.W. began noticing Grover's car driving past the DeForest State
Patrol headquarters. Grover would pass him on the interstate and wave. These
encounters took place between the start of S.W.'s shift until 3:00 to 4:00 a.m.
S.W. testified that, on several occasions, Grover followed his squad into
Columbia County. At some point, S.W. ran Grover's license plate and learned her
name.
State v. Grover, supra.
The opinion goes on to explain that
S.W. often parked his squad in front of
his Sun Prairie house when not working. He testified that one night, in January
2011, he went out to the squad at the start of his shift when Grover drove up
and stopped in front of his driveway. S.W. described the incident as follows:
`After a second or two I was kind of
like sitting there in shock a little bit, like this can't be happening. She
exited the vehicle. I still was in my vehicle. I opened the driver's side door
and she walked to the driver's side door of my vehicle.’
State v. Grover, supra.
The opinion then provides more details of this encounter:
When asked how he felt, S.W. testified:
`I felt violated. I had a rush of
emotions going through me. I had my wife inside who was pregnant, about to have
a baby. I'd never had this happen before so I was—I was a little concerned to
say the least.’
. . . .
. . . `I guess I felt threatened. I had
no idea what her intentions were.’
S.W. testified that he was `pretty
sure’ he spoke first, asking Grover, `what the hell she was doing’ at his
house. S.W. was `upset’ and `probably more authoritative’ than in prior
encounters. Grover told S.W. that she wanted to give him some gifts—a
University of Wisconsin Rose Bowl hat and some pens and paper from her
employer. Grover was dressed in Wisconsin clothes and colors, looking like
she had just come from a football game. S.W. told Grover he could not accept
the items, that he was married, and that this was `inappropriate.’
State v. Grover, supra.
The court then goes on to explain that S.W.
testified that he thought that Grover
learned where he lived by following him when he returned to his house. S.W.
testified that at the end of the incident, he was `emotionally drained’ and `couldn't
believe it had happened.’ S.W. `felt threatened, . . . an unwanted person [was]
coming to my house.’ S.W. testified he was `mentally and physically and
emotionally drained’ after the incident and his `anxiety was through the roof.’
State v. Grover, supra.
The opinion then explains that
[a]fter that incident, S.W. spoke with
a sergeant, his wife, and ultimately, the Sun Prairie police department. The
discussion with a police officer led to the issuance of a `no stalking’ letter
from the police to Grover. Officer Raymond Thompson testified that he served
Grover with the letter on March 29, 2011, and read and explained the letter to
her. The letter advised Grover that her behavior towards S.W. could be
interpreted as stalking, as defined by Wisconsin Statutes §940.32 (2015-16). The letter further advised Grover that “future stalking
behavior” towards S.W. `could result in [her] arrest.’ Thompson testified that
Grover agreed to not have any further contact with S.W.
S.W. testified that after the letter
was served, he continued to see Grover in the Sun Prairie area, including in
his neighborhood. In April, while S.W. was on duty, he was buying lunch at a
grocery store. Grover approached him and started talking to him. Grover told
S.W. she was sorry, that she `wasn't trying to pick [him] up,’ and that she
followed him because she felt safe around him. S.W. told Grover that her
conduct was inappropriate and she should not be talking to him.
After that incident, S.W. continued to
see Grover but did not have any direct contact with her until August 2012. S.W.
testified that on August 9, 2012, a package was found in his home mailbox. The
package had no return address, several stamps, but no postmark. S.W. and his
wife discussed whether to open the package. S.W.'s wife was `very concerned and
upset with [S.W.],’ questioning him about whether he had a girlfriend.
Eventually, they surmised that the package might have been sent by Grover. S.W.'s
wife opened the package. Inside the package were several wax candles in the
shape of Roman numerals and a birthday card, signed, `me.’ S.W. testified that
he felt `[t]hreatened’ by the incident. S.W. explained that he `was very
concerned’ and `afraid for [his] family’ because he still did not know anything
about Grover beyond her name.
State v. Grover, supra.
The Court of Appeals concluded the initial section of its
opinion, which sets out the facts and the legal proceedings below:
Officer Timothy Lingle testified that
he spoke with Grover after the package incident. Grover admitted mailing the
package to S.W. Lingle testified that Grover told him that S.W's `body
language’ indicated that he `liked her but [he] was too shy to let her know.’
Grover admitted receiving the `no-stalking’ letter but said she was unsure
whether she was supposed to still have contact with S.W. after the letter.
Grover did
not testify at trial and the defense did not present any witnesses.
State v. Grover, supra.
The Court of Appeals then began its analysis of the two
issues Grover raised in her appeal: One was whether the evidence presented at
trial was sufficient to support the jury’s verdict; the other was whether her defense attorney was “ineffective.” State
v. Grover, supra. This post
examines each, in that order.
The Court of Appeals began it analysis of the first issue by
explaining that
We first set out the familiar standard
of review. When reviewing a challenge to the sufficiency of the evidence, we
employ a highly deferential standard of review. See Morden v. Continental AG, 2000 WI
51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659. We will not overturn a verdict if
there is any credible evidence, under any reasonable view, that leads to an
inference supporting the verdict, and we consider the evidence in the light
most favorable to the verdict. Id.,
¶¶38-39. We may not substitute our judgment for that of the jury `unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force’ that no reasonable jury `could have found guilt
beyond a reasonable doubt.’ State v.
Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We
will uphold the verdict if any possibility exists that the jury could have
drawn the inference of guilt from the evidence. See id. at 507. It is the jury's province to fairly resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences
from the facts. See id. at
506. If more than one inference can be drawn from the evidence, the inference
which supports the jury's finding must be accepted unless the testimony was
incredible as a matter of law. See State v. Witkowski, 143 Wis. 2d 216, 223, 420 N.W.2d 420 (Ct.
App. 1988).
State v. Grover, supra.
The Court of Appeals then outlined what the prosecution had
to prove to convict Grover of stalking.
It explained that the elements of stalking are set forth in in Wis.
Stat. § 940.32(2)(a)-(c):
(a) The actor intentionally engages in
a course of conduct directed at a specific person that would cause a reasonable
person under the same circumstances to suffer serious emotional distress or to
fear bodily injury to or the death of himself or herself or a member of his or
her family or household.
(b) The actor knows or should know that
at least one of the acts that constitute the course of conduct will cause the
specific person to suffer serious emotional distress or place the specific
person in reasonable fear of bodily injury to or the death of himself or
herself or a member of his or her family or household.
(c) The actor's acts cause the specific
person to suffer serious emotional distress or induce fear in the specific
person of bodily injury to or the death of himself or herself or a member of
his or her family or household.
Wisconsin Stat. § 940.32(1) defines
`course of conduct’ in pertinent part as:
(a) `Course of conduct’ means a series
of 2 or more acts carried out over time, however short or long, that show a
continuity of purpose, including any of the following:
1. Maintaining a visual or physical
proximity to the victim.
2. Approaching or confronting the
victim.
3. Appearing at the victim's workplace
or contacting the victim's employer or coworkers.
4. Appearing at the victim's home or
contacting the victim's neighbors.
. . . .
7. Sending material by any means to the
victim . . . .
8. Placing an object on or delivering
an object to property owned, leased, or occupied by the victim.
`Serious emotional distress’ is defined
as `to feel terrified, intimidated, threatened, harassed, or tormented.’ Section
940.32(1)(d).
State v. Grover, supra.
The court then began its analysis of Grover’s argument that
the evidence presented at trial was not sufficient to support her conviction:
The State established the requisite
`course of conduct.’ Grover saw S.W. nearly every night, often following him
into whatever gas station he entered. See Wis. Stat. §940.32(1)(a)1. She followed his squad car into another county and waved at
him when passing on the interstate. See § 940.32(1)(a) 1 and 3. Grover
went to S.W.'s house, uninvited, to give him gifts. See §
940.32(1)(a)4. After receiving a formal letter telling her that S.W.
considered her contact to be stalking and advising her not to have further
contact with him, she approached him and talked with him at the grocery
store. See § 940.32(1)(a)2. Also after receiving the
letter, Grover sent a package to S.W.'s house. See §
940.32(1)(a)7. and 8.
Grover argues that the State failed to
prove that S.W. suffered serious emotional distress. She emphasizes that she
never threatened S.W. and her conduct was not illegal. Grover characterizes her
conduct as merely `annoying or frustrating.’
State v. Grover, supra.
The Court then begins its analysis of Grover’s argument, explaining
that
S.W. testified repeatedly that he felt
threatened by Grover's conduct. S.W. had no way of knowing Grover's true
motivations. From S.W.'s perspective, a person he did not know was purposely
seeing him nearly every day and obviously following him as he worked his shift
for unknown reasons. Grover then amplified S.W.'s fear and apprehension when
she came to his house. When Grover sent S.W. the package in August 2012, S.W.
again felt threatened, concerned, and scared for his safety and the safety of
his family. Grover sent the package despite the `no-stalking’ letter's express
direction to stop contacting S.W. The State presented sufficient evidence that
S.W. suffered serious emotional distress. See Wis. Stat. §940.32(1)(d) (victim feeling `threatened’ defined as serious emotional
distress).
Grover contends that the State did not
prove that she knew or should have known that her conduct was causing S.W.
serious emotional distress. Grover contends that there was no `overt act’
showing her awareness `that she could create such a serious level of emotional
distress.’ That argument fails largely on the strength of the `no-stalking’
letter. Even if Grover was wholly ignorant that S.W. felt threatened by her
conduct before the letter, such ignorance was conclusively refuted by the
letter formally advising Grover that her conduct had caused S.W. serious
emotional distress. After receiving the letter, Grover continued to see S.W. in
the Sun Prairie area, approached him in the grocery store, and sent the
anonymous package to his home.
Lastly, Grover contends that the State
failed to show that a reasonable person would have suffered serious emotional
distress. See Wis. Stat. § 940.32(2)(a). Grover
emphasizes that she never directly contacted S.W.'s family and that the number
of contacts with S.W. had decreased over time. Grover characterizes S.W.'s
fears as `unreasonable’ fears of `some unknown risk’ in his `imagined vision of
the world.’
We disagree. Although Grover's
dismissive description of her conduct and criticism of S.W.'s reactions are
possible inferences that the jury could have drawn from the evidence, the
alternative inference—that S.W.'s fear was reasonable under the
circumstances—was also available to the jury. We must accept the inference chosen
by the jury. See Witkowski,
143 Wis. 2d at 223.
State v. Grover, supra.
The Court of Appeals then took up Grover’s second argument,
which she raised in what is called a “postconviction motion.” State v. Grover, supra. The motion argued that Grover’s "defense attorney
was ineffective in representing her.” State v. Grover, supra. More precisely, she argued that
her trial attorney was ineffective in
several respects: (1) improper advice on the question of whether she should
testify; (2) inadequate investigation; and (3) inadequate presentation of
exculpatory evidence. The trial court denied the motion without a hearing, stating
only that there was `no basis given’ for a hearing.
State v. Grover, supra.
The court began its analysis of Grover’s ineffective
assistance of counsel argument by explaining that
[a] postconviction hearing is necessary
to sustain a claim of ineffective assistance of counsel. See Machner, 92 Wis. 2d at 804.
However, a defendant's claim that counsel provided ineffective assistance does
not automatically trigger a right to an evidentiary hearing. See State v. Curtis, 218 Wis. 2d 550,
555 n.3, 582 N.W.2d 409 (Ct. App. 1998). A circuit court may deny a
postconviction motion without a hearing `if the motion does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is
not entitled to relief.’ State
v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Whether
a motion alleges sufficient material facts that, if true, would entitle a
defendant to an evidentiary hearing presents a legal issue that we review de
novo. See id. In
determining whether Grover is entitled to an evidentiary hearing, we accept as
true the facts alleged in the postconviction motion. See State v. Bentley, 201 Wis. 2d 303,
309, 548 N.W.2d 50 (1996).
In her postconviction brief, Grover
asserts that she wanted to testify but she `felt compelled to follow her trial
attorney's advice’ not to testify. She contends that trial counsel's
ineffectiveness rendered invalid her waiver of the right to testify. Grover
claims that counsel decided she would not testify and told her that if she did
testify, she would be found guilty and he would no longer represent her.
State v. Grover, supra.
The opinion then goes on to explain that Grover
filed several exhibits with her postconviction
motion: a lengthy history of S.W.'s gasoline purchases for his squad car from
June 2009 until August 2012; records from the Department of Motor Vehicles
showing the number of white Nissan Cubes registered in Dane County during that
time period; the bill of sale from Grover's September 2009 purchase of a Cube; Google maps showing
travel routes from Grover's house to her job; and evidence that Grover had won
a $1000 gift card to a Sun Prairie gas station in December 2010.
Grover argues that the evidence of S.W.'s
gasoline purchases would have contradicted his testimony that he changed his
habits in response to Grover's conduct. She contends that evidence of the
number of white Nissan Cubes registered in Dane County would have undercut
S.W.'s claim that the car was distinctive and that any time he saw such a car
Grover was the driver. Grover also faults trial counsel for not calling her
father, Richard Grover, as a witness. Grover claims that her father would have
testified that she `habitually’ came home from work between 11:00 p.m. and
midnight, contrary to S.W.'s testimony that he saw her frequently between 3:00
a.m. and 4:00 a.m. Lastly, Grover argues that her counsel should have presented
testimony of the manager of a video store in Sun Prairie who would have
testified that she was a regular customer dating back to 2004, giving credence
to the argument that her presence in the same areas as S.W. was purely
coincidental.
The question is whether Grover has alleged
facts, which if true, would entitle her to relief. See Bentley, 201 Wis.
2d at 310. We conclude that Grover's motion was sufficient to warrant an
evidentiary hearing. Grover claims inadequate pretrial investigation and she
has shown `”with specificity what the investigation would have revealed and how
it would have altered the outcome of the trial.”’ State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343 (Wisconsin Court of Appeals 1994) (quoted source omitted). Grover claims
that her trial counsel threatened to not represent her if she chose to testify,
thus calling into question the validity of her waiver of her right to testify.
Given those assertions, a postconviction evidentiary hearing is an appropriate
next step to ensure that a defendant acted knowingly, voluntarily, and intelligently. See State v. Denson, 2011 WI 70, ¶68, 335
Wis. 2d 681, 799 N.W.2d 831 (discussing a defendant's claim of an invalid
waiver to the right not to testify). We emphasize that we are not deciding that
Grover has established that her waiver was invalid or that she received
ineffective assistance of counsel, only that her motion was sufficient to
require an evidentiary hearing on those questions.
State v. Grover, supra.
The Court of Appeals therefore held that “sufficient
evidence supports the jury's verdict and we decline to order a new trial in the
interest of justice.” State v. Grover, supra. And it concluded the opinion by explaining that
[a]s to Grover's claim that her trial
counsel was ineffective, we conclude that the circuit court erred in denying
the postconviction motion without a hearing. Accordingly, we reverse the
postconviction order and remand for an evidentiary hearing under State v. Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979).
State v. Grover, supra.
The Court of Appeals appended a footnote to the last
sentence in the paragraph immediately above in which it explained that
We affirm the judgment of conviction at this time because
Grover has not established
that it should be reversed. If the circuit court
determines after the hearing that Grover
did receive ineffective assistance of
counsel, the judgment would, of course, be
reversed at that time.
State v. Grover, supra.
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