State v. Hudson, 2010AP1598–CR.

• Decision Date: 13 September 2012
• Docket Number: No. 2010AP1598–CR.,2010AP1598–CR.
• Citation: 2012 WI App 118,344 Wis.2d 518,822 N.W.2d 736
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. William Thomas HUDSON, III, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

344 Wis.2d 518

822 N.W.2d 736

2012 WI App 118

STATE of Wisconsin, Plaintiff–Respondent,

v.William Thomas HUDSON, III, Defendant–Appellant.

No. 2010AP1598–CR.

Court of Appeals of Wisconsin.

Sept. 13, 2012.

OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Sauk County: Patrick Taggart, Judge. Affirmed.

Before HIGGINBOTHAM, SHERMAN and BLANCHARD, JJ.¶ 1SHERMAN, J.

William Hudson appeals from a judgment convicting him of conspiracy to commit first-degree intentional homicide and conspiracy to commit arson. He also appeals from an order denying his motion for postconviction relief without an evidentiary hearing. Hudson contends that his convictions were the product of outrageous governmental conduct and that he was denied effective assistance of counsel because his trial attorney failed to seek suppression of statements he made to police, which were the product of outrageous governmental conduct, and failed to request a jury instruction on outrageous governmental conduct. He argues that his postconviction motion contained sufficient facts that, if true, entitle him to relief and that the circuit court thus erred in denying his motion without holding a Machner¹ hearing. He also argues that he is entitled to the reversal of his convictions in the interest of justice based on his claim that his convictions were the product of outrageous governmental conduct. We affirm.

BACKGROUND

¶ 2 In 2002, Hudson was incarcerated at the Wisconsin Secure Program Facility (WSPF) in Boscobel. Scott Seal, another inmate, was housed in the cell adjoining Hudson's. At the behest of law enforcement officers, including Thomas Fassbender, an agent with the Wisconsin Department of Justice, Seal began to gather information on Hudson and another inmate. After Seal agreed to act as an informant, Seal and Hudson discussed the possibility of Hudson killing certain individuals and committing arson in exchange for money from Seal.

¶ 3 While discussions were still taking place between Hudson and Seal regarding those proposed illegal acts, Hudson was transferred from the WSPF to the Columbia Correctional Institute in Portage and Seal was transferred to a prison in Racine. It was later arranged for Fassbender to call Hudson from Racine and pretend to be an attorney named Dave Michaels, who was able to facilitate conversations between Hudson and Seal while those men were incarcerated. During one of those conversations, Seal and Hudson agreed that, in exchange for payment from Seal, Hudson would murder one individual and burn down the house of another individual.²

¶ 4 Hudson was released from prison on parole in July 2003. Hudson's parole agent gave Hudson a note with the name “Attorney Dave Michaels” on it, a telephone number, and a date and time that Hudson could call. Hudson called the number on July 17, 2003, and spoke with Fassbender, whom he believed to be Attorney Michaels. They discussed plans for Hudson to meet an agent posing as another member of the conspiracy in order to obtain money and information to carry out the murders and arson. Hudson also told “Attorney Michaels” about his parole conditions, including house confinement and electronic monitoring. Fassbender, posing as Attorney Michaels, expressed sympathy and asked Hudson whether he had asked his parole officer about the restrictions.

¶ 5 During that conversation, Fassbender and Hudson discussed a plan for Hudson to meet a friend of Seal's, who would provide Hudson with the money and information from Seal about the targets and their locations. Hudson asked “Attorney Michaels” some questions about Seal's legal situation and about a friend's civil suit. Fassbender encouraged the discussion and stated only: “I'll see what I can do and pass it along” to an imaginary legal associate.

¶ 6 Hudson was convicted of one count of conspiracy to commit first-degree intentional homicide and one count of conspiracy to commit arson. Hudson sought postconviction relief, arguing the case should be dismissed because his convictions were the result of outrageous governmental conduct. The circuit court denied Hudson's motion without an evidentiary hearing. Hudson appeals.

DISCUSSION

¶ 7 Hudson contends the circuit court erred in denying his motion for postconviction relief without an evidentiary hearing. A defendant is not entitled to an evidentiary hearing on a postconviction motion as of right. To obtain an evidentiary hearing, the defendant must allege sufficient facts in the postconviction motion that, if true, would entitle the defendant to relief. State v. Thorn ton, 2002 WI App 294, ¶ 27, 259 Wis.2d 157, 656 N.W.2d 45. If the record conclusively demonstrates that the defendant is not entitled to relief, no hearing need be held. See State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50 (1996). Hudson argues that his postconviction motion contained sufficient facts that, if true, established that his convictions were the product of outrageous governmental conduct and ineffective assistance of counsel based on his trial counsel's failure to seek suppression of statements obtained as a result of the government's outrageous conduct and failure to seek a jury instruction on outrageous governmental conduct.

¶ 8 We review the sufficiency of the defendant's allegations in a postconviction relief de novo, based on the four corners of the motion. State v. Allen, 2004 WI 106, ¶¶ 9, 27, 274 Wis.2d 568, 682 N.W.2d 433. Whether the facts alleged in Hudson's motion constitute outrageous governmental conduct requires us to apply a legal standard to a fact situation, which raises an issue of law that we review de novo. See State v. Givens, 217 Wis.2d 180, 188, 580 N.W.2d 340 (Ct.App.1998).

¶ 9 “The concept of outrageous governmental conduct originates from the Due Process Clause of the Fifth Amendment.” Id. Outrageous governmental conduct may arise where the government's conduct is so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the American criminal justice system. State v. Steadman, 152 Wis.2d 293, 301, 448 N.W.2d 267 (Ct.App.1989). To successfully assert the defense of outrageous governmental conduct, “the defendant must show that ‘the prosecution ... violate[s] fundamental fairness [and is] shocking to the universal sense of justice [ ] mandated by [due process].’ ” State v. Albrecht, 184 Wis.2d 287, 297, 516 N.W.2d 776 (citation omitted). Hudson is entitled to a hearing only if he asserts sufficient facts to demonstrate that the conduct violated a specific constitutional right. See Steadman, 152 Wis.2d at 302, 448 N.W.2d 267.

¶ 10 Hudson asserts that the government's conduct in this case, an undercover agent impersonating a lawyer, violated two specific constitutional rights: (1) his right against self-incrimination, and (2) his “right to consult in private with counsel.”

¶ 11 Hudson's assertion that his right against self-incrimination was violated is conclusory and not supported by further argument. We therefore do not consider that argument. See State v. Pettit, 171 Wis.2d 627, 646–67, 492 N.W.2d 633 (Ct.App.1992) (we will not decide issues that are inadequately briefed). The resolution of the question of whether Hudson alleged sufficient facts establishing that the government engaged in outrageous conduct, therefore, turns on whether or not Hudson's right to counsel was violated by virtue of Agent Fassbender's impersonation of an attorney.

¶ 12 Hudson claims that, although he was not represented in court by the faux lawyer Fassbender/Michaels, he nonetheless consulted with “Attorney Michaels” about legal matters. Hudson does not detail in the argument section of his brief what consultation he is referring to, and therefore does not appear to present a developed argument on this issue. However, we infer from the fact section of the brief that he is referring to two specific conversations he had with “Attorney Michaels.”

¶ 13 Hudson asserts in his brief that, in the first conversation with “Attorney Michaels,” he discussed the conditions of his then probation. This conversation is not in the appellate record and therefore, we do not consider it as support for Hudson's motion.³ Hudson argues that the faux attorney asked questions and expressed sympathy, however, he does not assert that “Attorney Michaels” offered him any legal advice. The closest thing to legal advice that he claims “Attorney Michaels” offered was: “You got an attorney you can ask about that?” Even if this conversation were in the record, we would conclude that asking someone whether they have an attorney to talk to about the topic certainly does not constitute legal advice.

¶ 14 In the second conversation, Hudson asked “Attorney Michaels” about a civil suit that involved a friend of his, but that did not involve Hudson. It can be inferred from the transcript of that conversation that Hudson believed at the time that “Michaels” was a lawyer. However, it appears clear that Hudson believed that “Michaels” did not do civil legal work. As a result, not only did “Michaels” not offer any advice, but Hudson did not seem to expect any. In the end, all “Michaels” did was to say that he would “pass it along” to someone. Moreover, the civil suit alluded to in the second conversation did not even involve Hudson himself.

¶ 15 As Hudson acknowledges in his brief, in investigating crime, the police are generally permitted to use tricks, misrepresentations, and deception to obtain evidence. In Albrecht, we noted that, while courts have recognized the outrageous governmental conduct defense, it has not often been successful, absent extreme circumstances. Albrecht, 184 Wis.2d at 299, 516 N.W.2d 776. In Albrecht, we considered the application of the outrageous governmental conduct doctrine in a case in which an undercover police officer pretended to recruit Albrecht into the criminal organization that the officer pretended to head, eliciting incriminating statements from Albrecht about a...