Wisconsin Lawyer
Vol. 80, No. 4, April 2007

Criminal Procedure Torts

Worker's Compensation

Criminal Procedure

State v. Jensen, 2007 WI 26 (filed 23 Feb. 2007)

Jensen was charged with murdering his wife by poisoning her. The victim had made a series of oral and written statements to various persons in the weeks before her death that allegedly reflected her suspicion that her husband intended to harm her. The trial court ruled on the admissibility of these statements before trial. Both the state and the defendant appealed.

Taking the case on bypass from the court of appeals, the supreme court, in a majority decision authored by Justice Wilcox, affirmed in part and reversed in part the trial court. The opinion addresses the state's use of hearsay in light of the Crawford-Davis line of cases, including the definition of testimonial hearsay and application of the forfeiture-by-wrongdoing doctrine.

First, the court reaffirmed the three basic formulations of testimonial hearsay set forth in State v. Manuel, 281 Wis. 2d 554, in light of Davis v. Washington, 126 S. Ct. 2266 (2006) (see¶ 20). Only the third formulation applied here, namely, "whether a statement was `made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" (¶ 21). In refining this conceptualization, the court adopted a "broad definition" used in other cases: "a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime" (¶ 25). Thus, statements volunteered to police (even if not prompted by interrogation) or intended for communication by third parties to law enforcement are likely testimonial. In this case, for example, a letter written by the victim, addressed to police, and given to a neighbor with instructions that it was to be opened only on her death was testimonial because it accused her husband of plotting to murder her (see ¶¶ 26-27). The same held for voicemail messages the victim left on a police officer's answering machine. Other "informal" statements made by the victim to her neighbor and her son's teacher were not, however, testimonial. (The supreme court's opinion carefully applies the definition to multiple oral and written statements.)

Next, the court considered the forfeiture-by-wrongdoing doctrine in the context of the admissibility of the testimonial hearsay. Under Crawford-Davis, testimonial hearsay may be used against the accused only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine her. This privilege, however, "is lost if the accuser causes the witness's unavailability at trial" (¶ 39). In construing the contours of the forfeiture-by-wrongdoing doctrine in the "post-Crawford world," the court adopted a "broad view" (¶ 52) that does not require proof that the defendant acted with the specific intent of silencing a witness. Rather, "[i]f the circuit court determines in a pre-trial decision by the court, that Jensen caused his wife's unavailability, then the forfeiture by wrongdoing doctrine applies to Jensen's confrontation rights, and other testimonial evidence may be admitted" (¶ 51). Put differently, the trial court must hold a pretrial admissibility hearing, governed by Wis. Stat. section 901.04(1), in which the prosecution must convince the trial judge that it is more likely than not that the defendant committed the murder. The forfeiture doctrine's contours are roughly circumscribed by Federal Rule of Evidence 804(b)(6) (see ¶ 43).

Justice Butler concurred in part and dissented in part. He would have found that other hearsay statements were nontestimonial, and he argued in favor of a narrower construction of forfeiture by wrongdoing, which would require proof that 1) "the defendant caused the absence of the witness" and 2) the defendant "did so for purpose of preventing the witness from testifying" (¶ 63).

State v. Bruski, 2007 WI 25 (filed 22 Feb. 2007)

Police officers responded to a call regarding a suspicious occupied vehicle. They found Bruski (the defendant) passed out behind the wheel of the vehicle; the engine was not running. After being awoken by an officer, the defendant indicated that he was waiting for a friend and had no idea how he had gotten to his current location. The vehicle was registered to Smith. The police communications center contacted Smith to inform her of the whereabouts of her vehicle. Smith did not request that any action be taken with reference to the vehicle. She speculated that her daughter, who had been allowed to use the vehicle, may have allowed a friend to operate it.

A couple of hours later, Smith became concerned about her daughter and her vehicle. She went to the police department. From there, an officer escorted her to the scene where her car was located. The defendant, who remained passed out in the vehicle, woke up after Smith arrived. She did not recognize him and had never heard his name. The defendant reported that he knew the daughter but did not know her last name.

Smith wanted to take possession of her vehicle but did not have the keys. When the defendant stated that he did not have the keys, an officer opened the front passenger door and began searching for them. Before looking for the keys, the officer had not asked Smith for permission to look for the keys in the car. Smith had neither given nor denied permission for the officer to search her vehicle.

Unable to locate the keys on the seats, between the seats, in the glove compartment, or in the ashtray, the officer then opened a travel case that was in plain view on the floor in front of the front passenger seat. The travel case was approximately 10 inches wide, 16 inches long, and 8 inches deep, was hard and opaque, and had no identifying information on it. Although both Smith and the defendant stood in view of the vehicle's interior, neither said anything when the officer opened the case. The officer did not find the keys inside the case. However, he did find a glass smoking pipe, a cigarette box with a green leafy substance that appeared to be marijuana, plastic bags, weights, a digital scale, and a notebook. Smith said she had never seen the case before. The officer arrested the defendant. During a search incident to arrest the officer discovered drugs, a knife, the daughter's cell phone, and the keys to the vehicle on the defendant's person.

Charged with drug and weapon offenses, the defendant moved to suppress the evidence found in the travel case and the evidence found on his person, claiming that they were obtained in violation of his Fourth Amendment right against unreasonable searches. The circuit court granted the motion. The court of appeals reversed, concluding that the defendant lacked standing to assert a Fourth Amendment claim because he lacked a reasonable expectation of privacy in either the vehicle or the travel case. See 2006 WI App 53. In a majority decision authored by Justice Wilcox, the supreme court affirmed the court of appeals.

The court concluded that, with respect to the vehicle, there was no indication from the defendant's conduct that the defendant had an actual expectation of privacy in the vehicle. Further, even if he had an actual expectation of privacy in the vehicle, there was no support for a conclusion that such an expectation was one that society is willing to recognize as reasonable. First, the defendant had no property interest in the vehicle. Second, he took no precautions of the type customarily associated with people seeking privacy. Third, he lacked the right to exclude others from the vehicle: he did not own the vehicle and did not establish any possessory interest in it. Finally, his claim of privacy in the vehicle was not consistent with historical notions of privacy (that is, several courts have concluded that the relationship between the nonowner driver and the vehicle or the vehicle's owner can be too attenuated to allow a court to hold that the accused has a reasonable expectation of privacy in the vehicle) (see ¶¶ 26-30).

With regard to whether the defendant had a reasonable expectation of privacy in his travel case, the court noted that "[t]he question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court. It is a matter of first impression in this state" (¶ 32). Rejecting a bright-line rule that an individual who does not have a reasonable expectation of privacy in a vehicle cannot have a reasonable expectation of privacy in personal property found inside the vehicle, the Wisconsin Supreme Court instead looked for guidance in the following principles derived from U.S. Supreme Court decisions. "First, personal property found in vehicles is treated differently than personal property found in dwellings. There is a lesser expectation of privacy in vehicles. Second, neither ownership nor possession of an item alone establishes a reasonable expectation of privacy. It is an individual's expectation of privacy in the space, rather than concepts of property law, that is critical" (¶ 37) (citations omitted).

With these principles in mind, the majority concluded that the defendant did not have a reasonable expectation of privacy in the travel case. Not only was there no evidence from his conduct that he thought he had a reasonable expectation of privacy in the travel case, but the totality of the circumstances established that any expectation of privacy he did have was illegitimate and unjustifiable (see ¶ 38). "[The defendant] left the travel case in a vehicle that he did not own. He left it in a vehicle in which he had established no connection. He left it in a vehicle where he had no reasonable expectation of privacy" (¶ 40).

Further, he had not done anything to protect any privacy interest he may have had. The travel case was not locked. It did not have identifying information on its exterior. Nothing indicated that the defendant had an expectation of privacy in the travel case. Even when the officer was in the process of opening it, the defendant gave neither a verbal nor a nonverbal response. "One factor going in [the defendant's] favor is his ownership of the travel case. However, neither ownership nor possession of an item alone establishes a reasonable expectation of privacy" (¶ 42) (citation omitted).

Accordingly, the court concluded that the defendant lacked standing to assert a Fourth Amendment claim because he failed to prove that he had a reasonable expectation of privacy in either the vehicle in which the police found his travel case or the travel case itself (see ¶ 44).

Justice Bradley filed a dissenting opinion that was joined in by Chief Justice Abrahamson.

Top of page

Torts

Shannon E. T. v. Alicia M. V.M., 2007 WI 29 (filed 9 March 2007)

When Alicia was 27 weeks pregnant, she was involved in a motor vehicle accident that rendered her legally incompetent and caused the stillbirth of her son. Shannon initiated a wrongful death action in which he alleged that he was the child's father and that both Alicia and the other driver had been negligent. The Wood County Circuit Court stayed the wrongful death action while Shannon pursued this paternity action in Monroe County. The Monroe County Circuit Court granted Alicia's motion to dismiss the paternity action "because Wis. Stat. § 767.45(1) requires the birth of a child and that stillbirth did not qualify as a birth" (¶ 10). The court of appeals affirmed.

The question before the supreme court was "whether Shannon, as an unmarried man alleging himself to be the father of a stillborn, may bring a paternity action under Wis. Stat. § 767.45(1) to establish paternity for purposes of bringing a claim for the wrongful death of a viable fetus that was stillborn. We answer this question in the negative. However, we hold that, under such circumstances, Shannon, who is alleging that he is the father, may bring a motion under Wis. Stat. § 885.23 to determine his parentage in the pending wrongful death action" (¶ 4). Writing for the court, Justice Crooks explained that both judicial economy and Wisconsin law supported the conclusion (see ¶¶ 33-34).

The supreme court held that the lower courts correctly determined that the paternity statutes "relate to the care and support of a mother during pregnancy and the birth, care, and custody of a child," concerns that are not germane to a wrongful death action (¶ 36). Although section 885.23 uses the word "parentage" instead of "paternity," "case law indicates that the two words are used interchangeably"(¶ 38). Finally, a determination of parentage is a factual issue, which may be established by genetic testing, when practicable, or by other means of proof (see ¶ 40).

Justice Prosser dissented. He agreed with the decision to permit Shannon to establish paternity but disagreed with the majority's legal analysis. "Nothing in § 885.23 provides an independent basis for a party to establish paternity. The section speaks of genetic tests as evidence in an already initiated civil action in which parentage is an issue. It does not suggest that parentage may not be established by testimony or other evidence _ in the absence of a genetic test _ but the section does not itself authorize a party to initiate a proceeding to prove paternity or to present other kinds of evidence to prove paternity. In sum, the majority's reliance on § 885.23 as the statutory basis for a party to establish paternity is shaky at best" (¶ 50).

Top of page

Worker's Compensation

DaimlerChrysler v. Labor & Indus. Rev. Comm'n, 2007 WI 15 (filed 2 Feb. 2007)

An employee was injured at work when an engine that he was carrying hit his left knee. He underwent anterior cruciate ligament (ACL) reconstruction surgery, after which his surgeon assessed a 15 percent permanent partial disability (PPD) of the left knee. The surgeon subsequently performed a second ACL reconstruction surgery on the knee and thereafter assessed the minimum 10 percent PPD, reporting that the employee had reached a healing plateau and that his PPD had not changed due to the second surgery. The employer paid the employee 10 percent PPD, and the employee then filed a worker's compensation claim for additional compensation. An administrative law judge awarded 25 percent PPD (the amount determined by adding together the surgeon's assessments from each of the two surgeries as described above).

DaimlerChrysler petitioned the Labor and Industry Review Commission (LIRC) for review. LIRC affirmed in part and reversed in part. LIRC concluded that the evidence did not establish that the employee was entitled to 25 percent PPD because the surgeon stated, after the second ACL surgery, that the employee had regained full strength in his knee and had 10 percent PPD. LIRC assessed 20 percent PPD to the knee, concluding that Wisconsin Administrative Code section DWD 80.32 provides a 10 percent minimum for an ACL reconstruction and that, because the employee underwent two ACL surgeries, he was entitled to a minimum 10 percent recovery for each knee surgery. The circuit court affirmed LIRC. DaimlerChrysler appealed to the court of appeals, which certified the case to the supreme court. In a majority decision authored by Justice Crooks, the supreme court affirmed.

The certified question before the supreme court was whether LIRC may interpret Wisconsin Administrative Code section DWD 80.32(4) to award a cumulative minimum PPD for multiple ligament repair procedures, if the resulting award is higher than the highest medical estimate of PPD in evidence. Said the majority, "[w]e answer this question in the affirmative. We hold that § DWD 80.32(4) may be interpreted to award a cumulative minimum PPD for multiple ligament repair procedures, even though the award by … LIRC is higher than the highest medical estimate in the record. We further hold that Wis. Stat. § 102.18(1)(d) does not prohibit determinations in excess of the highest medical assessment in evidence, but rather creates a presumption of reasonableness for PPD awards that fall within the prescribed range. We therefore affirm the decision of the circuit court which affirmed … LIRC's award of 20 percent PPD to [the employee]" (¶ 3).

Crucial to the holdings in this case was the determination of the appropriate standard of review to be employed in the review of the LIRC's decisions. The court concluded that "LIRC's interpretation of § 102.18(1)(d) is entitled to great weight deference, and that … LIRC's interpretation of § DWD 80.32(4) is entitled to controlling weight deference….[C]ontrolling weight deference is similar to great weight deference, despite the difference in terminology, because both standards turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Controlling weight describes a level of deference given to an agency's interpretation and application of administrative rules and regulations, while great weight deference describes a level of deference given to an agency's interpretation and application of a statute" (¶ 19) (citation omitted).

Justice Roggensack filed a dissenting opinion that was joined in by Justices Wilcox and Prosser.

Top of page