Whether a state appellate court's revision of procedural historical facts contrary to the record, evidence, and understanding of the court and parties below, with no notice or opportunity for them to be heard, violates a criminal defendant's right to due process

QUESTIONS PRESENTED In the case at bar, the alleged victim levied numerous allegations against Petitioner to law enforcement, many of which had occurred months before being reported. At trial, the alleged victim recanted her allegations, stating she fabricated the allegations and lied to law enforcement in making the prior statements. The State proffered her out-of-court statements made to law enforcement as substantive evidence to support the charges. Though the jury acquitted Petitioner of most of the related charges, Petitioner ultimately stood convicted of some charges—including one count of possession of a firearm as a felon. The alleged victim’s recanted, out-of-court allegations supporting this conviction were uncorroborated by any independent, reliable evidence that would support a finding of guilt on each element of the offense. One piece of evidence offered in relation to the felon in possession of a firearm charge was a photograph of the gun that the State offered, and the parties understood the circuit court to admit, as demonstrative evidence only. The State’s examination of the alleged victim and another witness at trial then suggested the photograph was more than demonstrative and the photograph was sent back to the jury during deliberations with no cautionary or limiting instruction to the jury. Postconviction, contrary to the record, evidence, and circuit court’s and parties’ understandings, the Wisconsin Court of Appeals, sua sponte, held that the circuit court admitted the photograph without limitation The questions presented are: i 1. Does a State appellate court violate a criminal defendant’s right to due process on appeal under the Fourteenth Amendment—by denying the defendant meaningful review of the merits of his case and effectively rendering his appeal meaningless— when it revises procedural historical facts contrary to the record, evidence, and circuit court’s and parties’ understanding with no notice or opportunity for the circuit court or parties to be heard on the issue? 2. To sustain a criminal conviction consistent with the due process guaranteed under the Fourteenth Amendment, must a prior inconsistent statement, recanted by the declarant at trial and utilized against a defendant as substantive evidence at a state trial be corroborated by reliable, independent evidence substantiating each element of the crime charged? ii