State ex rel. Lee v. McCaughtry
| Decision Date | 29 May 1997 |
| Docket Number | No. 96-2719,96-2719 |
| Citation | 211 Wis.2d 891,568 N.W.2d 652 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin ex rel. Donald Lee, Petitioner-Appellant, v. Gary R. McCAUGHTRY, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Dodge County: THOMAS W. WELLS, Judge. Affirmed.
Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.
Inmate Donald Lee appeals from Waupun Correctional Institution's disciplinary decision finding him guilty of conspiring with other inmates to commit battery to, among others, a prison guard. He argues that: (1) he was denied the right to call witnesses at his disciplinary hearing; (2) he did not receive proper notice of the hearing; (3) the evidence was insufficient to convict him of conspiracy because the confidential informants' statements were inconsistent and uncorroborated; and (4) the adjustment committee failed to give adequate reasons for its decision. We affirm.
In the wake of an attempted battery of a prison guard by inmate Devin Holmes, Lee was charged with conspiracy in violation of WIS. ADM.CODE § DOC 303.21. 1 The conduct report stated the results of an investigation which revealed that, according to the investigating officer, Lee conspired with "other inmates ... in an attempt to assault both staff and inmates." The report relied on information from two confidential informants. The informants' testimony indicated that they had overheard conversations in which Lee expressed hostility toward inmates and staff and urged Holmes and other inmates to attack targeted individuals.
After conducting a hearing on the report, the committee found Lee guilty of conspiracy and sentenced him to eight days' adjustment segregation and 360 days' program segregation. Lee appealed the decision to the warden, who remanded the file to the committee for a further hearing, ordering that Lee be provided with a copy of the informants' statements. The hearing was reconvened shortly thereafter and, after hearing testimony from Lee and two witnesses Lee had called (inmates Raymond Sanders and Anthony Brock) and reviewing the informants' statements, the conduct report and various materials submitted by Lee, the committee affirmed its earlier decision, concluding that Lee "knowingly and intentionally conspired with another inmate to commit battery against a staff member," and that "he conspired with other inmates to commit battery against staff and inmates." 2 The warden affirmed the decision, and Lee sought certiorari review in circuit court. The court upheld the decision and Lee appeals. Other facts will be discussed below.
On certiorari, we review the action of the agency, not the circuit court, and our review is limited to the record made before the agency. State ex rel. Whiting v. Kolb, 158 Wis.2d 226, 233, 461 N.W.2d 816, 819 (Ct.App.1990); State ex rel. Irby v. Israel, 95 Wis.2d 697, 703, 291 N.W.2d 643, 646 (Ct.App.1980). We consider whether: (1) the agency stayed within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable, representing the agency's will, not its judgment; and (4) the evidence supported the agency's decision. Kolb, 158 Wis.2d at 233, 461 N.W.2d at 819; State ex rel. Riley v. DHSS, 151 Wis.2d 618, 623, 445 N.W.2d 693, 694 (Ct.App.1989). Our consideration of whether the committee acted according to law includes the question of whether Lee was afforded due process of law. State ex rel. Meeks v. Gagnon, 95 Wis.2d 115, 119, 289 N.W.2d 357, 361 (Ct.App.1980).
Lee argues first that his due process rights were violated because he "was denied the right to call witness[e]s" at the hearing. See WIS. ADM.CODE § DOC 303.81. 3 Lee's argument goes no further than to state the proposition; he does not indicate how or in what manner his rights were denied. Our own review of the record satisfies us that Lee was not deprived of his right to call witnesses.
When Lee received the conduct report he also acknowledged receipt of a form entitled "Notice of Major Disciplinary Hearing Rights," which stated, among other things:
At said hearing, you or your staff advocate may present ... evidence from voluntary eye witnesses. If there are persons who are eye witnesses ... to the alleged violation(s), you may request, in writing, within 2 days of this notice ... that any one or more of those witnesses be present at said hearing. You may request no more than 2 witnesses ... without good cause. The Hearing Officer may investigate your request to determine if the witnesses should be called. You will be given the ... Officer's decision in writing, which will include, if any of the witnesses are rejected, the reason for rejection.
The notice was accompanied by a "witness request form" on which the inmate may designate the witnesses he or she wishes to appear at the hearing. The form includes an acknowledgement stating: "I understand that I cannot call more than two witness[es] without good cause."
Two such forms appear in the record. Both are signed by Lee and request the same two witnesses, inmates Sanders and Brock. On the first form, in the space for "additional witnesses," Holmes's name is listed and behind it appears a notation: "Requests statement (trans. to CCI)." 4 At the foot of the form is a "reviewing staff decision," which states that Holmes would not attend because it "would only prolong the hearing." The second form, submitted to the committee two days later, also states: "Request advocate to obtain a statement from inmate Devin Holmes." A staff notation on the bottom of this form indicates that all requested witnesses would attend but that the request for a statement from Holmes "should be made to the advocate" because it was "[i]nappropriate for [a] witness form."
We assume Lee's challenge is to the committee's failure to have Holmes appear at the hearing. But we see nothing in the record suggesting that "good cause" existed to exceed the two-witness limit set forth in the administrative code. See supra note 3. The State contends that Holmes's testimony would have been cumulative within the meaning of WIS. ADM.CODE § DOC 303.86, which defines "evidence" as "any statement or object which could be presented at a disciplinary hearing ..." and states that an adjustment committee or hearing officer may refuse to hear or admit evidence if it is "merely cumulative of evidence already received at the hearing and is no more reliable than the already admitted evidence, for example: testimony of other inmates corroborating the accused's story, when corroboration has already occurred." Id. § DOC 303.86(1),(2)(b)3.
Holmes's statement appears in the record. It is a very brief affidavit, stating only that: he does not know Lee, he and Lee did not converse on August 21, 1995, and at no time did he "conspire[ ], intend[ ], plan[ ] or talk[ ] about assaulting any Prison Staff." It comports with the statement Lee submitted to the committee that he never asked Holmes to harm anyone. Holmes also said his and Lee's cells were so located that no one could have overheard any such conversation.
We are satisfied that Holmes's affidavit could properly be considered a corroborative statement that the committee could reasonably conclude rendered his actual appearance at the hearing unnecessary and that no cause had been shown for Lee to exceed the two-witness limit. See Gagnon, 95 Wis.2d at 127, 289 N.W.2d at 364 ().
We conclude, therefore, that contrary to Lee's assertion that he was denied the opportunity to present witnesses, the record establishes that both of his requested witnesses testified at both hearings and that the disciplinary committee not only granted his request for a statement from Holmes but considered it--along with the other inmates' statements--at the second hearing. We agree with the trial court's determination that "the record does not disclose any deprivation of his right, under the rules, to present witnesses...."
Lee also claims he did not receive twenty-four hours' notice of the rehearing. See Appendix note to WIS. ADM.CODE § DOC 303.76(3), at 58; Saenz v. Murphy, 153 Wis.2d 660, 680-81, 451 N.W.2d 780, 788 (Ct.App.1989) (), rev'd on other grounds, 162 Wis.2d 54, 469 N.W.2d 611 (1991). The "Notification of Disciplinary Hearing" in the record indicates that Lee received notice of the reconvened hearing on November 21, 1995, and that the hearing commenced the following day. While the notice does not state the time it was received, neither does Lee. The record--to which our review is confined--indicates that he received notice of the reconvened hearing the day before it was held. Without more, we see no violation of the notice rule.
Lee next challenges the sufficiency of the evidence to support the committee's determination that he was a party to a conspiracy to cause harm to inmates or staff. Again, our review is limited to ascertaining whether the record contains substantial evidence to support the determination. Van Ermen v. DHSS, 84 Wis.2d 57, 64, 267 N.W.2d 17, 20 (1978); State ex rel. Gibson v. DHSS, 86 Wis.2d 345, 349, 272 N.W.2d 395, 398 (Ct.App.1978). We neither weigh the evidence nor assess the credibility of the witnesses; that is the committee's task. Shoreline Park Preservation, Inc. v. Wisconsin Dep't of Admin., 195 Wis.2d 750, 761, 537 N.W.2d 388, 391-92 (Ct.App.1995). The question before us is whether reasonable minds could reach the same conclusion as the committee. Kolb, 158 Wis.2d at 233, ...
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