State v. Braun

• Decision Date: 22 June 1994
• Docket Number: No. 91-0923,91-0923
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kathleen BRAUN, Defendant-Appellant-Petitioner. d
• Court: Wisconsin Supreme Court

Page 740

516 N.W.2d 740

185 Wis.2d 152

STATE of Wisconsin, Plaintiff-Respondent, v. Kathleen BRAUN, Defendant-Appellant-Petitioner. ^d

No. 91-0923.

Supreme Court of Wisconsin.

Argued April 26, 1994.

Decided June 22, 1994.

For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

GESKE, Justice.

This is a review of a published opinion of the court of appeals, State v. Braun, 178 Wis.2d 249, 504 N.W.2d 118 (Ct.App.1993), which affirmed orders of the circuit court for Milwaukee County, Ted E. Wedemeyer, Jr., Circuit Judge, denying a sec. 974.06, Stats., ¹ motion for postconviction relief.

Following her 1976 conviction and sentencing for first-degree murder, party to a crime, the defendant, Kathleen Braun (Braun), filed a motion for postconviction relief under sec. 974.02, Stats., ² asserting denial of a public trial; prosecutorial misconduct; denial of her right of confrontation; limitations on the cross-examination of the state's chief witness; and alleged misconduct in the prosecutor's closing argument to the jury. During the In 1988, four years after she was returned to custody, Braun filed a motion to vacate the 1976 judgment of conviction, pursuant to sec. 974.06, Stats. The basis for the sec. 974.06 postconviction motion was the claim that the state had failed to disclose exculpatory evidence regarding the state's primary witness. Judge Wedemeyer denied Braun's motion, concluding that Braun had received a fair trial.

time the motion was pending before Circuit Judge Max Raskin, Braun escaped from the Taycheedah Correctional Institution. Judge Raskin subsequently dismissed the postconviction motion, based upon Braun's escape.

In 1993, the court of appeals affirmed the 1991 decision rendered by Judge Wedemeyer. Further, the court concluded that Judge Raskin's dismissal of Braun's initial sec. 974.02 postconviction motion, because of her escape, had the effect of finally adjudicating the issues raised in that motion. Consequently, Braun was precluded under sec. 974.06(4), Stats., from raising the same issues which could have been raised on direct appeal.

The following issues have been presented for review:

(1) Whether dismissal of Braun's postconviction motion due to her escape from custody acted as a "final adjudication" of the substantive issues raised in that motion and precluded her from raising those issues a second time in a subsequent postconviction motion upon her return to custody.

(2) Whether the circuit court's exclusion of a spectator, based upon the court's per se rule to exclude members of the venire panel not chosen for the jury, denied Braun the right to a public trial.

(3) Whether Braun was denied her right to due process and a fair trial resulting from prosecutorial misconduct consisting of (a) concealment of false statements concerning the nature of the state's plea agreement with a primary witness; (b) bad-faith cross-examination of Braun; and (c) the presentation of an improper rebuttal argument which encouraged speculation about facts not in evidence.

(4) Whether the circuit court violated Braun's right to confrontation by denying her the opportunity to effectively cross-examine a witness who connected her to the crime for which she was convicted.

(5) Whether the circuit court violated Braun's right to confrontation by denying her the opportunity to effectively cross-examine a corroborating witness for the state.

We now hold the following: (1) Braun's escape during the pendency of the initial postconviction motion constituted a forfeiture of the review of her claims; (2) the circuit court's dismissal of her sec. 974.02 motion due to this forfeiture served as a final adjudication of those claims; and (3) the court of appeals was correct when it concluded that Braun could not relitigate her postconviction claims under sec. 974.06, Stats. Our holding makes it unnecessary to review the remaining issues.

In December, 1973, Earl Jeffrey Seymour was arrested for the murder of a Milwaukee drug trafficker, William Weber. Weber had been shot three times, his arms severed at the wrists, and his body disposed of in Cook County, Illinois. Seymour entered into a plea agreement with the Milwaukee County District Attorney, pleading guilty to second-degree murder and agreeing to testify against Braun, whom he connected to the murder of Weber.

According to Seymour, Weber had threatened to cut off a drug supply to Seymour, Braun, and her husband, Tim Braun. As a result, they met to discuss various ways of killing Weber. Seymour then recounted the following sequence of events. Tim Braun obtained a pistol on November 12, 1973, and on the same day went to see his probation officer in order to establish an alibi. While Tim was gone, Weber arrived at the apartment where Kathleen Braun and Seymour had remained, to collect his money for drugs. Weber was led into a bedroom where Kathleen Braun was waiting. Seymour shot Weber once in the back and once in the heart. Kathleen Braun then took the gun and shot Weber in the head. Weber's body was placed in Kathleen Braun's car and taken to Seymour's father's home in Racine. Thereafter During Braun's trial, she testified that she was not involved in the shooting or dismemberment of Weber and, in fact, was not home at the time of the murder. At the conclusion of the trial, however, the jury found Braun guilty of first-degree murder, party to a crime. She subsequently was sentenced to life imprisonment at the Taycheedah Correctional Institution. Braun filed a motion for a new trial under sec. 974.02, Stats., alleging (a) denial of a public trial, (b) prosecutorial misconduct, (c) improper limitations on cross-examination, and (d) denial of the right of confrontation.

the body was dismembered and transported to Illinois.

While Braun's postconviction motion was pending in 1977, she escaped from prison. The state sought to have Braun's motion dismissed because of her escape. The circuit court granted the state's motion on the merits, but noted that it would set aside its decision and allow Braun to petition the court to reopen her motion if she appeared within 60 days. During that 60-day period, Braun neither voluntarily returned to custody nor did she file a direct appeal from the circuit court's dismissal of her postconviction motion.

In 1984, Braun was involuntarily returned to custody. Four years later, she filed a sec. 974.06 motion requesting that her judgment of conviction be vacated. In 1991, the circuit court denied Braun's sec. 974.06 motion, concluding that she had received a fair trial.

The court of appeals concluded that the circuit court had the authority to dismiss a claim for failure to prosecute or failure to obey a court order. Braun's escape from prison resulted in her failure to prosecute claims of error alleged in the pre-escape motion for a new trial. Consequently, " '[a]ny dismissal' for such failure 'operates as an adjudication on the merits unless the court ... otherwise specifies....' " Braun, 178 Wis.2d at 258, 504 N.W.2d 118 (quoting sec. 805.03, Stats. Dismissal of the pre-escape sec. 974.02 motion precluded Braun from renewing the same claims under sec. 974.06.

This case involves the construction of sec. 974.06, Stats. A question of statutory construction is a question of law which this court decides independently and without deference to the reasoning of the lower courts. Pulsfus Farms v. Town of Leeds, 149 Wis.2d 797, 803-04, 440 N.W.2d 329 (1989) (citing Sacotte v. Ideal-Werk King & Priester, 121 Wis.2d 401, 405, 359 N.W.2d 393 (1984), and Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984)). See also City of Muskego v. Godec, 167 Wis.2d 536, 545, 482 N.W.2d 79 (1992) (with the construction of a statute, an appellate court is not bound by a trial court's conclusions of law and decides the matter de novo ).

In the case before us, Braun concedes that her escape from prison has the effect of denying her the right to direct appeal. However, she argues that (a) her right to collateral relief on constitutional claims under sec. 974.06 is not lost, and (b) Judge Raskin's dismissal of her postconviction motion under sec. 974.02 did not finally adjudicate the issues, since they were not considered on the merits. We disagree and conclude that Braun's fugitive status during the pendency of her initial postconviction motion constituted a forfeiture ³ of relief sought pursuant to sec. 974.02. Additionally, Judge Raskin's dismissal of Braun's postconviction motion after her escape and failure to return to custody within 60 days served as a final adjudication on the motion. Judge Raskin's

ruling had the effect of a dismissal with prejudice. Finally, Braun is not entitled to pursue any further postconviction relief by virtue of subsection (4) of sec. 974.06 because she has not established a sufficient reason as to why issues now raised were not previously raised in original, supplemental or amended motions.

FUGITIVE STATUS

The effect of a defendant's fugitive status on his or her appellate proceedings is not a new question to state and federal courts. In 1876, the United States Supreme Court ordered that unless the petitioner-escapee submitted himself to the highest state court's jurisdiction on or before the first day of the next term, the case would be deleted from the Supreme Court's docket. Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). See also Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887) (fugitive's case would be deleted from the appellate docket on the last day of the U.S. Supreme Court's term unless the fugitive came within the jurisdiction of the state appellate court before that date). In 1949, the Supreme Court took off its docket, and later dismissed, the case of an accused who fled the United States after being held in contempt of Congress. Eisler v. United States, ...