State v. Vaylan G. Morris

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1694-CR Cir. Ct. No. 2016CF3043

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VAYLAN G. MORRIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ, Judge. Judgment affirmed;
order reversed and cause remanded.

Before Brash, P.J., Kessler and Dugan, JJ.

¶1 BRASH, P.J. Vaylan G. Morris appeals his judgment of conviction
entered after he pled guilty to second-degree recklessly endangering safety as a
party to a crime, and the trial court’s order denying his postconviction motion for
No. 2018AP1694-CR

resentencing. Morris was charged after the death of his infant daughter, O.M.,
who had been co-sleeping with Morris and O.M.’s mother, Monica Gonzalez. The
cause of O.M.’s death was undetermined, but Morris admitted to smoking
synthetic marijuana prior to co-sleeping with O.M. and thought he may have rolled
over on her. Additionally, synthetic marijuana was detected in O.M.’s stomach
contents, although it was determined not to have caused her death.

¶2 In his postconviction motion, Morris argued that the trial court relied
on inaccurate information regarding O.M.’s cause of death. Specifically, the State
represented at sentencing that the synthetic marijuana could have been the cause of
O.M.’s death; however, the medical examiner had advised the State that the
ingested synthetic marijuana was not the cause of death.

¶3 The trial court denied Morris’s postconviction motion. It stated that
the information presented by the State was not necessarily inaccurate just because
it conflicted with the medical examiner’s opinion, even though the State conceded
that point. The court also stated that it had not relied on the inaccurate information
because the sentence imposed was not based on a particular theory of the cause of
death, and thus any error relating to that inaccurate information was harmless.

¶4 We disagree. The record demonstrates that after the inaccurate
information was presented by the State, the trial court repeatedly referred to
Morris and Gonzalez as having caused O.M.’s death during Morris’s sentencing
hearing. Furthermore, the record does not reflect that the court considered any
other possible causes of death. We therefore reverse and remand this matter for
resentencing.

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No. 2018AP1694-CR

BACKGROUND

¶5 O.M. was born on October 1, 2015. On November 25, 2015,
Milwaukee police officers and other emergency personnel were dispatched to a
residence on North 46th Street in response to a call that O.M. was not breathing.
Life-saving measures were unsuccessful, and O.M. was pronounced dead at the
scene.

¶6 The responding officers noted that Gonzalez looked as though she
was “in a trance”—she had a “blank stare” and was “unsteady on her feet.” She
told officers that O.M. had been sleeping in between her and Morris. Officers then
had to wake up Morris, who was still asleep in the bed; officers had to nudge him
and call his name several times before he responded. Morris was unable to answer
the officers’ questions about O.M., and ultimately admitted that he had been
smoking synthetic marijuana. Gonzalez subsequently admitted that she too had
smoked synthetic marijuana prior to going to sleep with O.M. in the bed. She also
told police that Morris had been “so fucked up” after smoking the synthetic
marijuana that he had fallen down on the floor.

¶7 Morris was taken into custody, as he was on extended supervision at
the time of this incident from a previous criminal conviction and was prohibited
from engaging in illegal drug use. In an interview with police, Morris stated that
he believed he had rolled over onto O.M. while they were co-sleeping in the bed.

¶8 An autopsy was conducted on O.M. on November 27, 2015, by
Dr. Brian Linert of the Milwaukee County Medical Examiner’s Office. There
were detectable levels of synthetic marijuana in O.M.’s stomach contents; liquid
residue inside a baby bottle was also tested, and the presence of three types of
synthetic marijuana was discovered. However, the drug had not circulated

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No. 2018AP1694-CR

through O.M.’s blood stream or nervous system. Dr. Linert therefore concluded
that O.M.’s possible ingestion of the drug did not play a role in her death.

¶9 Additionally, the autopsy showed no signs of suffocation, nor any
indication that either adult who had been sleeping with O.M. had laid over her
body, causing her death. Dr. Linert suggested that co-sleeping could have played
a role in O.M.’s death because sudden infant death occurs more frequently in cases
of co-sleeping, but “it is not necessarily related to suffocation.” Ultimately,
Dr. Linert concluded that the cause of O.M.’s death could not be determined.

¶10 Morris was charged in July 2016 with second-degree recklessly
endangering safety as a party to a crime. Morris agreed to plead guilty to the
charge. Pursuant to the plea negotiations, the State would recommend that Morris
serve time in prison, but the length of the term was to be left to the discretion of
the trial court.

¶11 The sentencing hearing was held on October 5, 2016. During the
hearing, the State discussed the autopsy results, stating that while there were no
signs of suffocation, “in cases of overlay, there are often no signs that a child has
been suffocated.” The trial court then inquired how else O.M. would have died;
the State responded, “[t]he synthetic marijuana in the child’s system[.]” The State
continued, “[s]o we know that this child had three different types of synthetic
marijuana in her system, but we don’t know exactly how far the synthetic
marijuana made it inside her system in order to say that that was the ultimate
cause of her collapse and death.” (Emphasis added.)

¶12 Throughout the remainder of Morris’s sentencing hearing, the trial
court made several references to O.M.’s cause of death. The court called it “not a
tragedy” but “a horrible, horrible, completely preventable situation,” noting that

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No. 2018AP1694-CR

O.M. “would be alive and well today if you and her mother had not engaged in the
reckless criminal conduct the two of you chose to engage in.” The court noted that
Morris had stated he believed he had rolled over on O.M., and then further
observed:

[a]nd then we’ve got all this synthetic marijuana in
[O.M.’s] system. So not only could you have suffocated
her—you certainly had been negligent enough. And I hope
it was negligence. I hope the two of you weren’t putting
anything in her bottle to make her sleep soundly so she
wouldn’t bother you. But that certainly comes to mind.

¶13 Additionally, in response to Morris’s request for probation so that he
would be able to properly grieve for O.M. and “pay respects to her grave,” the trial
court stated, “[y]ou want to visit her grave. You know, [the] two of you killed her.
I don’t even know how you think you have the right to do that and continue to
grieve.” The court also referred to O.M.’s death as a “completely prevent[a]ble
tragedy that the two of you caused.” Ultimately, the trial court imposed a nine-
year sentence on Morris, bifurcated as four years of initial confinement and five
years of extended supervision.

¶14 Morris filed a postconviction motion in May 2018 seeking a new
sentencing hearing. He argued that the trial court relied on inaccurate information
at sentencing; specifically, the State’s misstatements about O.M.’s cause of death
being related to the synthetic marijuana found in her system. Morris contended
that the court’s remarks during the sentencing hearing demonstrated its reliance on
the State’s inaccurate statements. Morris further asserted that the State would not
be able to prove that this error was harmless due to the court’s “particular interest
in this information” at sentencing.

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No. 2018AP1694-CR

¶15 In its response, the State conceded that this information conveyed to
the trial court at sentencing was inaccurate. However, it “strongly contest[ed]”
Dr. Linert’s statements in his affidavit that he had informed the State that the
synthetic marijuana had not circulated through O.M.’s system prior to her death.
Furthermore, the State asserted that the error was harmless because “the inaccurate
information did not change the ultimate likelihood that [Morris] caused the death
of O[.]M.”

¶16 The trial court denied the motion. It stated that while the State
“misquoted Dr. Linert’s conclusion” regarding the role of synthetic marijuana in
O.M.’s death, “it was not necessarily inaccurate” because “[d]ifferent medical
examiners can disagree about the cause of death.” (Alteration in original.) The
court further held that Morris had not demonstrated that the court had relied on the
inaccurate information because the court “did not rely upon any particular theory
of the cause of death,” but rather had imposed the sentence to “punish[] [Morris]
for his reckless behavior.” (Alteration in original.) The court declared that
“[e]ven if [O.M.]’s death could be attributed to some other factor, it doesn’t
change the incredibly poor parenting and reckless behavior [Morris] showed
towards his child,” and therefore the inaccurate information presented by the State
was “truly harmless.” This appeal follows.

DISCUSSION

¶17 We first address the State’s argument that Morris forfeited his right
to make this claim because his trial counsel did not object to the presentation of
the inaccurate information during the sentencing hearing. Morris points out that
his trial counsel had no way of knowing that the information was inaccurate at the
time of sentencing, because the State had represented that the prosecutor obtained

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No. 2018AP1694-CR

the information during a discussion with Dr. Linert, and Morris’s trial counsel was
not present for that conversation.

¶18 It is within the discretion of an appellate court “to disregard alleged
forfeiture and consider the merits of any issue because the rule of forfeiture is one
of judicial administration and not of power.” State v. Wilson, 2017 WI 63,
¶51 n.7, 376 Wis. 2d 92, 896 N.W.2d 682. To the extent forfeiture may apply in
this case, we elect to disregard the alleged forfeiture and consider Morris’s claim
on the merits.1

¶19 Turning to that claim, defendants have “a constitutionally protected
due process right to be sentenced upon accurate information.” State v. Tiepelman,
2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. A defendant seeking
resentencing based on inaccurate information at sentencing “must show both that
the information was inaccurate and that the court actually relied on the inaccurate
information in the sentencing.” Id., ¶26 (citations and some quotation marks
omitted). Whether a defendant has been denied this right is a constitutional issue
that we review de novo. Id., ¶9.

¶20 In denying Morris’s postconviction motion, the trial court held that
he had not proven either prong of the Tiepelman test. First, with regard to the
inaccurate information relating to whether the synthetic marijuana was the cause
of O.M.’s death, the court stated that the information “was not necessarily

1
The State contends that because Morris forfeited the right to bring his claim on appeal,
it should instead have been framed as an ineffective assistance of counsel claim. Because we
reject the State’s forfeiture argument, we do not reach an ineffective assistance analysis.

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No. 2018AP1694-CR

inaccurate” because “[d]ifferent medical examiners can disagree about the cause
of death.”

¶21 However, in this case, Dr. Linert submitted an affidavit in support of
Morris’s postconviction motion stating that “within a degree of medical certainty”
the synthetic marijuana ingested by O.M. was not a cause of her death. There was
no other report or opinion submitted by any other medical examiner or other
expert advancing a different conclusion. Therefore, the trial court’s inference that
a different medical examiner would have come to a different conclusion regarding
cause of death is inconsistent with, and unsupported by, the record.

¶22 Moreover, the State conceded in its response to Morris’s
postconviction motion that the information presented at sentencing regarding the
synthetic marijuana as O.M.’s cause of death was inaccurate. Accordingly, Morris
met the first prong of the Tiepelman test.

¶23 The trial court also found that Morris had not proven the second
prong of the Tiepelman test—proving actual reliance on the inaccurate
information. The court acknowledged that it had inquired about O.M.’s cause of
death during the sentencing hearing, but maintained that it had not relied upon
“any particular theory of the cause of death” in imposing sentence on Morris. The
court opined that Morris had “read[] too much into the court’s sentencing
remarks.”

¶24 The trial court’s remarks, however, clearly indicate its belief that
Morris caused the death of O.M. Furthermore, those remarks were made after the
court inquired as to the cause of O.M.’s death, at which point the State presented
the inaccurate information regarding the possibility that the ingested synthetic
marijuana had been the cause of death. Therefore, we conclude that Morris has

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No. 2018AP1694-CR

met his burden of showing that the court relied on that inaccurate information at
sentencing.

¶25 If a defendant proves actual reliance on inaccurate information, “the
burden then shifts to the [S]tate to prove the error was harmless.” Id., ¶26. “‘An
error is harmless if there is no reasonable probability that it contributed to the
outcome.’” State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39, 756 N.W.2d
423 (citation omitted).

¶26 The trial court found that the error was harmless because Morris had
admitted to the reckless behavior that had endangered O.M.’s safety—smoking
synthetic marijuana prior to co-sleeping with her. The court acknowledged that
the State had conceded that it presented inaccurate information, but also
referenced the State’s argument that “the only reason [the synthetic marijuana]
would not have circulated in [O.M.]’s system is if something else had caused her
death first, and that ‘something else’ … is the ‘very real likelihood’ that [Morris]
suffocated her while co-sleeping.” The court then stated that “[e]ven if [O.M.]’s
death could be attributed to some other factor, it doesn’t change the incredibly
poor parenting and reckless behavior [Morris] showed towards his child,” and
therefore the error was “truly harmless.”

¶27 On the contrary, that statement by the trial court indicates that the
error was not harmless. In phrasing its conclusion “[e]ven if [O.M.]’s death could
be attributed to some other factor,” the court is clearly communicating its belief
that Morris caused O.M.’s death. (Emphasis added.) The record demonstrates
that the court never considered any other possible cause of death, such as sudden
infant death syndrome. Moreover, the court’s statements conflict with the autopsy
findings, which stated that a cause of death could not be determined.

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No. 2018AP1694-CR

¶28 Therefore, we conclude that there is a reasonable probability that the
inaccurate information presented by the State regarding O.M.’s cause of death
contributed to the sentence imposed on Morris by the trial court. As a result, the
error was not harmless. See id., ¶46. Accordingly, we reverse and remand this
matter for resentencing.

By the Court.—Judgment affirmed; order reversed and cause
remanded.

Not recommended for publication in the official reports.

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