Hicks v. Klinker

• Docket Number: 2022AP2003
• Decision Date: 25 January 2024
• Parties: Laura Hicks, Petitioner-Respondent, v. Alex G. Klinker, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

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Laura Hicks, Petitioner-Respondent, v. Alex G. Klinker, Respondent-Appellant.

No. 2022AP2003

Court of Appeals of Wisconsin, District IV

January 25, 2024

This opinion will not be published. See WIS. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Juneau County: No 2022CV160, STACY A. SMITH, Judge. Affirmed.

Before Kloppenburg, P. J., Blanchard, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. § 809.23(3).

PER CURIAM.

¶1 Alex Klinker appeals a harassment injunction entered against him for the protection of Laura Hicks. Klinker contends that the circuit court denied Klinker his due process right to fundamental fairness by not allowing him to fully put on a case, call witnesses, and otherwise be "heard in a meaningful fashion." He argues that this violation of his due process rights requires reversal and remand for a new hearing. We assume without deciding that the circuit court violated Klinker's rights by ruling on the injunction petition before allowing Klinker to present all of the evidence that he sought to present, but we conclude that reversal is not required because the assumed error is harmless.

¶2 In a related argument, Klinker contends that the circuit court demonstrated objective bias at the hearing by depriving Klinker of his right to put on a case and by disregarding evidence that Klinker described in a proffer aimed at showing that he had a legitimate purpose in communicating with Hicks as he, for the most part, admits that he did. Hicks argues that Klinker forfeited the bias argument by failing to raise it at the original hearing. We choose to overlook the potential forfeiture, but we conclude that Klinker fails to meet his burden to show that the court was objectively biased.

¶3 Accordingly, we affirm the circuit court's order.

BACKGROUND

¶4 Hicks filed a petition for an injunction against Klinker under WIS. STAT. §813.125 (2021-22) ("Harassment restraining orders and injunctions.").^[1]Hicks and Klinker share a child. The petition alleged that Klinker had violated a circuit court order in a family law action prohibiting Klinker from contacting Hicks, absent an emergency. The petition further alleged that Klinker engaged in harassment against her. Specifically Hicks alleged that he repeatedly texted and called her accusing her of illegally using drugs, and needlessly made harshly abusive comments in a notebook that the two exchanged, even though the notebook was supposed to be used exclusively to address matters related to their child. Hicks contended that this constituted "[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose." See § 813.125(1)(am)4b.

¶5 The circuit court held a hearing on the petition. Hicks, through counsel, called Klinker and examined him as an adverse witness. Klinker was then cross examined by his own counsel. During Klinker's cross examination, the circuit court concluded that there was sufficient evidence to issue the injunction and declared the evidentiary portion of the hearing to be closed. The court entered the harassment injunction against Klinker for a term of four years. Klinker appeals.

DISCUSSION

¶6 We first address Klinker's argument that reversal is merited due to the timing of the circuit court's termination of the evidentiary portion of the hearing and then we address his judicial bias argument.

I. Closure of Evidence

¶7 When the circuit court announced that evidence was closed and that it would issue the injunction, Klinker took the position that he had more evidence to present. But the court declined, after hearing a proffer of that evidence, to allow him to more fully present it. Klinker argues that this violated his due process rights. Hicks contends that there was no error of any kind, including no due process violation. We assume without deciding that the court violated Klinker's due process rights by closing evidence before Klinker was able to put on his own case. This raises the following issues: (1) whether the assumed error is subject to automatic reversal or harmless error review; and (2) if it is subject to harmless error review, whether it affects Klinker's substantial rights and therefore warrants reversal. State v. C.L.K., 2019 WI 14, ¶30, 385 Wis.2d 418, 922 N.W.2d 807 (in assessing the nature of an error, we first "determine whether the error is structural in nature[, i]f it is not, then (and only then) we assess the error's harmlessness," i.e., "consider whether it prejudiced the defense"). Determining the nature of an error presents an issue of law for our independent review. See State v. Travis, 2013 WI 38, ¶9, 347 Wis.2d 142, 832 N.W.2d 491.

¶8 To explain further, this determination relates to "a dichotomy of error types." State v. Nelson, 2014 WI 70, ¶30, 355 Wis.2d 722, 849 N.W.2d 317 (citing Arizona v. Fulminante, 499 U.S. 279, 307-10 (1991)). On one side of the dichotomy is a potentially harmless error that '"occur[s] during presentation of the case" at trial when the effect of that error "may be quantitatively assessed in the context of other evidence presented in order to determine whether [the error was] harmless beyond a reasonable doubt.'" Id. (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006)). If an error does not affect substantial rights, it must be disregarded. WIS. STAT. § 805.18; see also Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶28, 35, 246 Wis.2d 1, 629 N.W.2d 768 (stating that if the error is not sufficient to undermine the reviewing court's confidence in the outcome of the proceeding, the error is harmless).

¶9 On the other side of the dichotomy are structural errors. These "defy analysis by harmless-error standards because they affec[t] the framework within which the trial proceeds, and are not simply ... error[s] in the trial process itself." Nelson, 355 Wis.2d 722, ¶30 (quoting Gonzalez-Lopez, 548 U.S. at 148) (internal quotation marks omitted; alterations in Nelson). Structural errors are "so intrinsically harmful as to require automatic reversal." Neder v. United States, 527 U.S. 1, 7 (1999). Only a limited number of errors "require automatic reversal," because "most constitutional errors can be harmless ...." Nelson, 355 Wis.2d 722, ¶29 (quoting Fulminante, 499 U.S. at 306) (internal marks omitted).

¶10 Depending on the circumstances of a case, the testimony of an accused person (here, Klinker, accused of harassment) may be of particular importance to the issues in a case. See Nelson, 355 Wis.2d 722, ¶33. But this consideration does not necessarily mean that when a court limits such testimony in error it is impossible for a court to subsequently assess whether the error was harmless. See id.

¶11 With these standards in mind, we turn to additional pertinent background. Klinker's testimony on direct examination by Hicks's counsel included numerous admissions against his interest. The testimony included the following. Klinker contacted Hicks directly through text messages and a phone call in which he blocked caller-ID from identifying his number. In one text message, Klinker referred to Hicks as a "junkie cunt." As Klinker acknowledged in his testimony-and he also acknowledged in one text message that he sent to Hicks-his directly communicating with Hicks violated the order of the family law court. Under that order, absent an emergency, the only method of communication permitted between Klinker and Hicks was the exchange of a physical notebook, and the notebook was to be exclusively devoted to matters pertaining to their child. In the notebook, Klinker called Hicks "a junkie piece of shit" and stated "[p]erhaps you should get a 40 hour a week job, which does drug testing regularly." When asked how those messages were related to their child, Klinker testified that Hicks "is on drugs around" the child. Klinker testified: "I was trying to explain to her that she might be able to stay off drugs if she got a regular job that [includes] drug testing." Klinker repeatedly communicated with Hicks because he was "really sick of drug addicts being [the child's] babysitter." Klinker publicly (on his Facebook page) criticized Hicks, stating: "[S]he gets a shit ton of child support and welfare[,] so paying for a decent sitter shouldn't be a problem"; and "I sure have to deal with a lot of junkie bullshit from pieces of shit."

¶12 The circuit court asked Klinker if he had evidence to present showing that Hicks ever faced drug-related charges or convictions. Klinker testified that he had none. Klinker further testified that, six months before the hearing, Hicks voluntarily provided Klinker with two negative drug test results over the course of a several-month period. Klinker expressed skepticism about the validity of these two negative drug tests and expressed the view that Hicks should undergo a "hair follicle" drug test. Klinker acknowledged, however, that he had not taken steps in the family law litigation to address his purported concerns about her alleged drug use.

¶13 During Klinker's cross examination by his counsel counsel first attempted to introduce a series of text messages exchanged between Klinker and individuals who were purportedly acquainted with Hicks. One message, for example, purported to reflect that Hicks's acquaintance asserted that Hicks was involved with drugs in the presence of the child. Hicks's counsel objected based on hearsay. Klinker's counsel argued that the text messages were offered not for the truth of the matter asserted but rather for their effect on Klinker as the recipient. The court sustained the objection (in a ruling not...