State v. Doss

• Decision Date: 15 July 2008
• Docket Number: No. 2006AP2254-CR.,2006AP2254-CR.
• Citation: 754 N.W.2d 150,2008 WI 93
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Carmen L. DOSS, Defendant-Appellant-Cross-Petitioner.
• Court: Wisconsin Supreme Court

754 N.W.2d 150

2008 WI 93

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Carmen L. DOSS, Defendant-Appellant-Cross-Petitioner.

No. 2006AP2254-CR.

Supreme Court of Wisconsin.

Argued March 5, 2008.

Decided July 15, 2008.

For the plaintiff-respondent-petitioner the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant-cross petitioner there were briefs by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

¶ 1 LOUIS B. BUTLER, JR., J

This is a review of a published court of appeals opinion¹ reversing a judgment of conviction and order by the Milwaukee County Circuit Court, the Honorable Elsa C. Lamelas presiding, denying a defendant's postconviction motion for a new trial. Carmen Doss (Doss) appealed from a judgment of conviction finding her guilty of unlawfully retaining funds from her father's estate, in violation of Wis. Stat. § 943.20(1)(b) and (3)(c) (2003-04).²

¶ 2 In 2003, Doss's father passed away. At the time of his death he lived in Wisconsin, while Doss resided in Georgia. Doss retained a Milwaukee attorney to assist in the probate of the estate, which had assets of approximately $72,000.

¶ 3 While working on the probate case, the attorney learned that Doss's father's State income taxes had not been paid for over eight years. The attorney filed a tax return with the Wisconsin Department of Revenue (DOR) and sent the DOR checks totaling $39,865. Shortly thereafter, Doss contacted the DOR agent responsible for the audit of her father's taxes and persuaded the agent to hold the checks. The next day, Doss withdrew all of the money in the estate's account. When the DOR subsequently submitted the checks, they were returned unpaid because the account had been closed.

¶ 4 Doss was charged with theft as a trustee/bailee in a business setting, pursuant to Wis. Stat. § 943.20(1)(b) and (3)(c). A jury found her guilty, and Doss was sentenced to six years' imprisonment, consisting of one year of initial confinement and five years of extended supervision. Doss was also ordered to pay restitution.

¶ 5 Doss filed an appeal, arguing that certain bank records should not have been allowed into evidence and that the evidence was insufficient to prove a crime was committed. The court of appeals found that admission of the bank records via affidavits of bank officials violated both statutory procedure and Doss's constitutional right of confrontation. The court also concluded that the evidence was sufficient to support the verdict. State v. Doss, 2007 WI App 208, ¶ 28, 305 Wis.2d 414, 740 N.W.2d 410. The court of appeals reversed the judgment of conviction and the order denying Doss's postconviction motion.³

¶ 6 On review, we conclude that the circuit court did not commit either statutory or constitutional error in admitting the bank records at issue, and that there was sufficient evidence in this case to sustain a conviction. We further conclude that the prosecutor did not violate a court order excluding evidence of the DOR complaint; that evidence of the DOR lawsuit against Doss was not irrelevant and unfairly prejudicial; that Doss waived her challenge that the prosecutor did not improperly comment upon Doss's lack of testimony; that reversal in the interest of justice is not appropriate; and that the circuit court did not erroneously deny Doss's postconviction ineffective assistance of counsel motion. We therefore reverse the decision of the court of appeals.

I

¶ 7 Carmen Doss's father died on August 14, 2003. At the time of his death, Doss's father resided in Wisconsin, and Doss resided in Georgia. Diane Loftus, a Milwaukee attorney, was retained to assist Doss in probating the estate, and she and Doss were named as co-personal representatives. The assets of the estate, totaling approximately $72,000, were deposited into an account at M & I Bank under the joint control of Loftus and Doss.

¶ 8 In the process of trying to finalize estate matters, Loftus was informed by the DOR that Doss's father had failed to pay Wisconsin income taxes for the final eight years of his life. The DOR letter, which was copied to Doss, stated that "[o]nce the above issue is satisfied (returns filed with full payment of tax liabilities), only then can a Closing Certificate ... be issued." Doss responded by claiming that her father was not a resident of Wisconsin and therefore did not owe the Wisconsin taxes.

¶ 9 On February 6, 2004, after advising Doss of the estate's tax liability and the need to file the income taxes, Loftus filed tax returns for 1995 to 2002 and included with the returns checks totaling $39,865.87 for taxes, interest, and late fees. However, Doss directly contacted the DOR two weeks later asking that the checks be held because, she stated, Loftus had acted without Doss's knowledge or approval.

¶ 10 On February 20, 2004, Doss then withdrew every penny of the $70,555.47 in the estate's M & I account and closed the account, telling the DOR that she had closed the account but had "every intention of satisfying [her] father's obligations to The State of Wisconsin." On March 1, 2004, Doss opened a new account with SunTrust Bank of Atlanta, Georgia, and deposited the money into that account. On March 15, 2004, after receiving a final determination from the DOR that the estate owed income taxes, Doss closed the SunTrust estate account and deposited the account's balance into her personal account. Four days later she again moved the funds, this time to a new money market account. The last communication Doss had with the DOR prior to this action was a March 26, 2004, letter in which Doss blamed the DOR for not contacting her father about the delinquent taxes and wrote that collecting the taxes at that point "just doesn't seem right."

¶ 11 While Doss was in the process of moving the funds from account to account, her attorney distanced herself from her client's actions, filing a motion to withdraw as attorney of record and to resign as co-personal representative. In the alternative, the motion requested an order directing Doss to return the estate funds. A hearing was held on Attorney Loftus's motion to withdraw on March 25, 2004. In an order dated April 1, 2004, the probate court allowed Loftus to withdraw as co-personal representative, but did not address the request for return of the funds.

¶ 12 When the DOR submitted the eight checks for payment, they were returned because the account had been closed. The DOR subsequently filed a lawsuit, along with a motion for summary judgment on August 23, 2004, seeking repayment of the money Doss had taken. As an alternative, the motion requested an order requiring that a $52,000 bond previously issued by the Ohio Casualty Insurance Company covering the performance of Doss and Loftus as probate personal representatives be paid to the DOR. The motion also requested that a constructive trust be imposed on Doss's assets; that Loftus be reappointed as co-personal representative; and that Doss, Loftus, and Ohio Casualty be held jointly and severally liable for payment of the taxes. The same day, the DOR also filed a separate action against Ohio Casualty, Doss, Loftus and the estate seeking payment of $48,339.81 for the income taxes owed, plus interest, fees, and check return fees.

¶ 13 After receiving notice from Ohio Casualty that she could be held liable for any loss, cost or expense to Ohio Casualty associated with this matter and after DOR arranged for personal service of the lawsuit on Doss, Doss closed the SunTrust money market account and withdrew the balance in cash. Ohio Casualty filed a motion in the estate action requesting an order directing Doss to surrender the estate funds. At an October 7, 2004, hearing, Doss told the probate court that the money was simply gone. The probate court then granted Ohio Casualty's motion and ordered Doss to pay $70,555.47 to the Milwaukee County Clerk of Courts. Doss did not do so.

¶ 14 On November 23, 2004, the State filed a complaint charging Doss with one count of theft as a trustee/bailee in a business setting, in violation of Wis. Stat. § 943.20(1)(b) and (3)(c). On October 13, 2005, a jury found her guilty. Doss was sentenced to serve a six-year prison term, consisting of one year initial confinement, followed by five years of extended supervision, and was ordered to pay restitution and costs.

¶ 15 On June 7, 2006, Doss filed a motion for postconviction relief, arguing that the court erred in admitting certified bank records and in denying a request for a mistrial, that evidence of the DOR's lawsuit was unfairly prejudicial, that the prosecutor's closing argument contained improper commentary on Doss's lack of testimony, that there was insufficient evidence to sustain a conviction, that the interest of justice required a new trial, and that she was prejudiced by ineffective assistance of counsel. On August 22, 2006, the circuit court denied her motion. Doss then filed an appeal making the same arguments that she made in her postconviction motion and that she continues to make to this court.

¶ 16 In an opinion issued on August 7, 2007, the court of appeals focused on her arguments that the circuit court erred when, on short notice to Doss, it allowed certified bank records to be entered into evidence without supporting witnesses and that the evidence was insufficient to sustain the conviction. Doss, 305 Wis.2d 414, ¶¶ 9, 23, 740 N.W.2d 410. The court of appeals concluded that the circuit court erred "because admission of the bank records via affidavit violated both statutory procedure and Doss's constitutional right of confrontation, and because admission of this evidence was not harmless." Id., ¶ 28. Based on that conclusion, the court reversed the judgment of conviction and the order denying Doss's motion for postconviction relief. Id. The court also concluded that ...