Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Criminal Law | Criminal Procedure | Evidence | Family Law |
| Guardianship | Highways | Insurance | Torts |

Possession of Controlled Substance – Positive Blood or Urine Tests –
Sufficiency of Evidence to Support a Conviction

State v. Griffin, No. 97-0914-CR (filed 7 May 1998) (ordered published 29 July 1998)

An issue of first impression in Wisconsin was presented in this case. It is whether the presence of a controlled substance in a person's blood or urine is sufficient, in and of itself, to support a conviction for possession of that controlled substance. Though not previously considered by a Wisconsin court, the great majority of courts in other jurisdictions have held that the presence of a controlled substance in one's urine or blood, without more, is insufficient evidence on which to base a conviction for possession.

As in other jurisdictions, to be found guilty of possession of a controlled substance, the Wisconsin defendant must have had the substance under his or her control and must have knowingly possessed the substance. Because Wisconsin's law of possession is similar to that of other jurisdictions, the court of appeals in this case followed those jurisdictions that have held that the mere presence of drugs in a person's system is insufficient to prove that the drugs were knowingly possessed by the person or that the drugs were within the person's control.

Although the presence of drugs in one's system, standing alone, is insufficient to support a conviction for possession, the presence of drugs is circumstantial evidence of prior possession. When combined with other corroborating evidence of sufficient probative value, evidence of assimilation can be sufficient to prove possession beyond a reasonable doubt. For example, in this case the court concluded that the presence of the THC metabolite in the defendant's system, when combined with other corroborating evidence of drug possession, was sufficient to support the jury's verdict convicting the defendant of possession of marijuana. [THC is the biologically active substance in marijuana.]

Police recovered THC and smelled the odor of marijuana when they served a search warrant at the apartment of a friend of the defendant. They also found several articles of the defendant's clothing at the apartment. The defendant was observed leaving the apartment a half hour before the warrant was served. While the search was in progress, the defendant returned to the apartment, where he was met outside by a police officer. As the officer approached him, the defendant turned away and placed his hands behind his back "in the classic handcuff position." While cuffing the defendant, the officer could smell marijuana on his clothing and on his breath. Said the court, based on the presence of THC in the defendant's system and other corroborating evidence, a reasonable jury could find beyond a reasonable doubt that the defendant knowingly possessed and ingested marijuana.

Failure to Pay Child Support – Affirmative Defense of Inability to Pay –
Admissibility of Incarceration Evidence

State v. Stutesman, No. 97-2991-CR (filed 30 July 1998) (ordered published 26 Aug. 1998)

During their marriage the defendant and his wife had three children. Following their divorce, and pursuant to various court orders, the defendant was directed to pay child support. He subsequently was charged with 16 counts of failure to pay child support. See Wis. Stat. § 948.22. This statute criminalizes the intentional failure to pay support that the person knows or reasonably should know he or she is legally obligated to provide. The statute contains an affirmative defense based upon inability to pay child support. However, a person may not demonstrate inability to provide support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment, or reduces his or her earnings or assets.

In this case the state filed a motion before trial to prohibit the defense from introducing evidence that he was unable to pay child support because he was incarcerated. The state argued that it was within the control of the defendant whether to commit a crime, and that the statutory affirmative defense is limited to circumstances beyond the defendant's control. Defense counsel responded that it was the state's burden to prove that the defendant intentionally engaged in criminal conduct in order to avoid paying child support, and whether that was his intent was a question for the jury. The trial court granted the state's motion, concluding that evidence of the defendant's incarceration was irrelevant.

In a decision authored by Judge Vergeront, the court of appeals reversed. It agreed with the defendant that the trial court's exclusion of all evidence of his incarceration deprived him of his Sixth Amendment right to present a defense. Inability to pay child support is an affirmative defense under the statute. Evidence of the defendant's incarceration therefore was relevant to that defense because, depending upon the circumstances of incarceration, it may prevent a person from being employed, and therefore may prevent a person from having earnings with which to pay child support. Whether a person commits a crime in order to avoid paying child support is a question of fact for the jury.

The court also concluded that the defendant's previous failure to bring a motion to reduce his child support payment because of incarceration did not preclude him as a matter of law from presenting evidence in his criminal case that he was unable to pay child support because of incarceration.

In footnote the court agreed with the state's position that evidence of incarceration does not, in itself and automatically, establish a defense of inability to pay. However, that was not the defendant's position. His argument was that he should have been permitted to present evidence of incarceration to the jury and let the jury decide whether he was unable to pay child support.

Aiding a Felon – Elements of Offense – Wis. Stat. section 946.47(1)(a)

State v. Schmidt, No. 97-3131-CR (filed 30 July 1998) (ordered published 26 Aug. 1998)

Wis. Stat. section 946.47(1)(a) provides that, whoever does the following is guilty of a Class E felony: "With intent to prevent the apprehension of a felon, harbors or aids him or her ...." In this case the critical issue on appeal was whether this statute applies to aiding a person who already has been convicted of a felony and is now wanted for a parole violation following that conviction, or alternatively, whether it should be limited to aiding persons who are now wanted for, but have not yet been convicted of, a felony.

In a decision authored by Judge Vergeront, the court of appeals concluded that, within the meaning of this statute, there is no distinction between these classes of "felons." Whether the person already has been convicted of a felony and is now wanted for a parole violation following that conviction or is now wanted for but has not yet been convicted of a felony, is not a distinction recognized by the statute. Said the court, each of these persons is a "felon" within the meaning of section 946.47(2)(a) because each "commits an act ... which constitutes a felony under the laws of this state." The quoted segment of the preceding sentence is from the definitional portion of section 946.47 and reflects a legislative decision to define the term "felon" in a way that includes persons sought to be apprehended now for the commission of a felony, as well as persons previously convicted of a felony who are now sought for other reasons such as a parole violation.

Drug Offenses – Felony Possession of THC – Elements of Offense

State v. Miles, No. 97-1364-CR (filed 21 July 1998) (ordered published 26 Aug. 1998)

The defendant was convicted of felony possession of tetrahydrocannabinols (THC), which is the biologically active substance in marijuana, contrary to Wis. Stat. sections 161.14(4)(t), 161.01(14), 161.41(3r) and 161.48(2) (1993-94). Under section 161.41(3r) it was unlawful for him to possess THC and, because this was his second offense, the crime was a felony and the minimum penalties were doubled. [Similar provisions appear in the current version of the controlled substances laws codified in Wis. Stat. chapter 961.]

The issue on appeal was whether the prior drug conviction was an element of the offense of felony possession of THC that must be proved at trial beyond a reasonable doubt. In a decision authored by Judge Curley, the court of appeals concluded that the prior drug conviction is not an element of the offense of felony possession of THC, and that neither state law nor the defendant's constitutional right to due process required the state to prove the defendant's prior drug conviction at trial beyond a reasonable doubt.

Although the drug repeater statute converted the defendant's crime of possession of THC from a misdemeanor to a felony, it did not change the substantive nature of the crime nor did it concern the factual circumstances surrounding the underlying crime. The court likened the drug repeater to those provisions of Wisconsin's OWI law that elevate the penalties for that offense if the defendant has prior alcohol-related convictions. In the latter situation the Wisconsin Supreme Court has concluded that the prior convictions do not in any way alter the nature of the substantive offense but rather are concerned only with the question of punishment. Therefore, the prior convictions do not require jury determination.

Conditions of Probation – Costs – Payment of Crime Laboratory Expenses to Analyze Drugs

State v. Neave, No. No. 97-3486-CR (filed 1 July 1998) (ordered published 26 Aug. 1998)

The defendant pled guilty to two counts of delivery of cocaine. The circuit court sentenced him to four years of imprisonment on the first count and to 10 years concurrent probation on the second. As a condition of probation, the court ordered the defendant to pay $220 for laboratory testing performed by the State Crime Lab in connection with the offenses.

The defendant appealed the requirement that he pay for the laboratory testing and the court of appeals, in a decision authored by Judge Nettesheim, reversed the circuit court. The issue before the appellate court was whether the cost of the State Crime Lab's analysis of a controlled substance may be imposed as a condition of probation. Because Wis. Stat. section 973.06(1) does not recognize such an expenditure as an allowable taxable cost, the appellate court vacated that portion of the judgment requiring the defendant to pay this expense as a condition of probation.

Sentencing – Evidence of Victim's Prior Criminal Record

State v. Spears, No. No. 97-0536-CR (filed 9 June 1998) (ordered published 26 Aug. 1998)

The victim in this homicide case stole the defendant's purse. The defendant gave chase with an automobile and ultimately ran over the purse snatcher, causing his death. Pursuant to a plea agreement, the defendant entered an Alford plea and was convicted of second-degree intentional homicide.

At sentencing, the state recommended 15 years imprisonment and presented numerous members of the victim's family who addressed the court on his behalf. The court also heard from the defendant, her attorney, and members of the defendant's family. Defense counsel also submitted a sentencing memorandum, which included a printout of the deceased's criminal record. The record showed that the deceased had convictions for burglary, attempted theft, theft and robbery, and had numerous other arrests. When the prosecutor objected to the introduction of the deceased's criminal record, the trial court agreed that the victim's prior record was not relevant to the sentencing proceedings. The court sentenced the defendant to 20 years' imprisonment.

On appeal the defendant urged that the victim's prior criminal record was relevant to rebut his family's inaccurate portrayal of him. She contended that the sentencing court erred in ruling that the victim's criminal record was irrelevant to the sentencing decision. In a decision authored by Judge Schudson, the court of appeals agreed.

Said the court, under the circumstances of this case, the victim's criminal record was relevant and should have been considered by the trial judge. The sentencing court considered the impact of the victim's death on his friends and relatives. At sentencing the relatives spoke glowingly of the deceased's character and, at times, they vigorously urged lengthy incarceration for his killer. They attempted to convey their sense that substantial incarceration was warranted for reasons including what they perceived as the deceased's good conduct and what they believed to be his virtues. In an effort to address that proposition, the defendant was entitled to attempt to counter the weight of the victim impact evidence by introducing evidence showing that the deceased's relatives may have overstated their loss, or may have misconceived the character of their loved one. "Faced with recommendations that she serve a lengthy prison sentence, in part, because of the virtue of her victim, the defendant in fairness should have had the opportunity to recommend a lesser sentence, in part, because the deceased's criminal record compromised claims about his virtue."

Search and Seizure – Attenuation – Strip Search

State v. Simmons, No. No. 97-1861-CR (filed 1 July 1998) (ordered published 26 Aug. 1998)

The defendant was convicted of possessing cocaine and sentenced to prison. The cocaine was found during a strip search conducted in 1995. He claimed that the 1995 strip search was invalid because it was based on an earlier illegal strip search in 1990.

The court of appeals, in an opinion written by Judge Brown, affirmed. In 1990 police arrested the defendant based on information that he "regularly secreted plastic bags of cocaine between the cheeks of his buttocks." Police discovered numerous bindles of cocaine in the aforementioned location while conducting a warrantless strip search. The court of appeals suppressed the evidence because the 1990 search was unlawfully based on uncorroborated statements by a confidential informant.

In 1995 police obtained information that the defendant was selling cocaine. When applying for the search warrant, police included information about the 1990 incident in order to justify their request for a strip search authorization. The search warrant authorized the search of the defendant's apartment, its curtilage, and permitted a strip search of the defendant and search of his underclothing. When executing the warrant, police discovered a "golf-ball" sized baggy of cocaine "lodged between the cheeks of Simmon's buttocks. "

Applying the attenuation doctrine, the court held that the evidence suppressed from 1990 did not taint the 1995 search. This was not a case in which police used illegally seized evidence to conduct a "confirmatory search. " Put another way, the court was "faced with a situation in which the police initiated the 1995 investigation and sought the search warrant only after they received new information from an informant that Simmons was selling cocaine from the apartment. The earlier illegal search of Simmons and discovery of cocaine did not prompt their decision to investigate Simmons; it was a separate and independent investigation. " Case law explaining the attenuation doctrine clearly rejected a "but for" relationship between the primary illegality and a later search.

Fair Trial – Impartial Jury – Strikes "For Cause"

State v. Kiernan, No. 97-2449-CR (filed 22 July 1998) (ordered published 26 Aug. 1998)

Kiernan was convicted of operating while intoxicated following a jury trial. Reversing the conviction, the court of appeals held that her due process rights were violated when the trial judge refused to strike for cause "five jurors who had earlier rejected an identical theory of defense to be employed by her. "

Prior to jury selection, Kiernan's trial counsel objected to the array of the jury. The judge put the objection aside until a jury had been picked and sworn. Two days earlier five jurors called for voir dire served on a six-person jury trial involving the same offense, before the same judge, and defended by the same lawyer. Kiernan's lawyer "pointed out that the defense theory in the earlier trial was that 'residual mouth alcohol is a problem for the Intoxilyzer 5000' and he planned to use the same defense on behalf of Kiernan. "

Writing for the court, Judge Anderson applied recent case law addressing defendants who were "arbitrarily forced" to use peremptory strikes to excuse biased jurors. Since the voir dire had not been recorded, the court could not address the jurors' subjective bias. Instead, the court looked to whether any reasonable juror, under similar circumstances, could assess Kiernan's defense fairly and impartially. In summary, the court held "that it is error to force a defendant to use his or her peremptory challenges when it has been established that: (1) one or more potential jurors have previous jury experience; (2) during their previous service the veteran jurors rejected an identical theory of defense the defendant intends to rely upon; (3) the credibility of witnesses is not crucial to the theory of defense; and (4) during voir dire the veteran jurors have stated that they will not give serious consideration to the theory of defense. "

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