Supreme Court Digest

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

| Criminal Law | Criminal Procedure |
| Insurance | Torts |

Obscenity - Vagueness/Overbreadth Challenges -
Admissibility of Telephone Surveys
Regarding Community Standards - Selective Prosecution

County of Kenosha v. C&S Management Inc., No. 97-0642 (filed 22 Jan. 1999)

C&S Management (Crossroads) operates an adult bookstore in Kenosha County along an interstate highway. It was charged with violating a Kenosha County obscenity ordinance that tracks the prohibitions in the state obscenity statute. See Wis. Stat. § 944.21. The parties to the appeal explicitly or by implication noted that the constitutional challenges described below apply equally to both the ordinance and the state statute. In a unanimous decision authored by Justice Steinmetz, the supreme court first concluded that the laws in question, which prohibit the sale of obscene material, do not violate either the federal or Wisconsin constitutions when evaluated for vagueness and overbreadth.

The court next considered whether the jury instructions given defining obscenity were erroneous. In Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court articulated a definition of obscenity. Miller established the basic guidelines for the trier of fact in its evaluation of obscenity as being: 1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In this case the circuit court defined the Miller "prurient interest" standard to mean material that "appeals generally to a shameful, unhealthy, unwholesome, degrading . . . interest in sex." The underlined words in the instruction represent an expansion of the "prurient interest" definition developed in various U.S. Supreme Court cases. The Wisconsin Supreme Court in this decision concluded that the addition of these words to the jury instruction did not expand the definition to encompass protected speech. The circuit court also expanded on Miller's "serious value" definition by adding the word "genuinely" to it. Here again the court concluded that the instruction as presented to the jury was an accurate statement of the law.

Crossroads also contended that the express purpose and effect of the county's prosecution against it was to discriminate against Crossroads for exercising its right to free speech under the First Amendment and its equivalent in the Wisconsin Constitution. At a minimum Crossroads believed it was entitled to an evidentiary hearing on the matter and, preferably, that the charges should have been dismissed because the county engaged in selective and discriminatory prosecution.

The supreme court concluded that before Crossroads is entitled to a full evidentiary hearing, it must first present a prima facie showing of discriminatory prosecution. At a minimum this means that the defendant must prove that he or she has been singled out for prosecution while others similarly situated have not and that the prosecutor's discriminatory selection was based on an impermissible consideration such as race, religion, or the exercise of constitutional rights. The court concluded that Crossroads failed to make the required showing under either prong. With regard to the discriminatory effect prong, the evidence showed that other bookstores in the area sold similar material but were not prosecuted and thus Crossroads was not singled out for its exercise of First Amendment rights. Nor did Crossroads adequately establish a discriminatory purpose behind the district attorney's decision to prosecute. The evidence showed that Crossroads was selected for prosecution because most of its inventory violated the obscenity ordinance and because the bookstore was prominently located along an interstate highway at the entryway to the state.

The court concluded that Kenosha County engaged in what was an appropriate use of selective prosecution in this case. The sexually explicit nature of most of the material sold by Crossroads and its prominent location along an interstate highway were legitimate prosecutorial factors that may be considered in determining prosecution priorities. Said the court, a prosecutor does not abuse his or her discretion when he or she targets those businesses that most publicly present their sexually explicit material.

Finally, the court considered whether the circuit judge erred by excluding evidence offered by Crossroads as proof of community standards under the Miller test. Specifically, Crossroads sought admission of a telephone survey purporting to establish community standards in Wisconsin with respect to sexually explicit materials. The circuit court refused to admit the results of the survey believing they were not relevant to the question of whether the specific videotape at issue in this case was obscene and that the admission of the survey would tend to confuse the jury. The supreme court concluded that the circuit court did not erroneously exercise its discretion in reaching these conclusions. In the opinion of the supreme court, the survey respondents were not sufficiently apprised of the nature of the charged materials and thus the responses to the poll were irrelevant to the issues involved in the case. Said the court, the most serious problem in this survey and other "abstract" surveys is that they do not describe with any verisimilitude the sexual activities depicted in the video at issue and for which the current prosecution is brought.

Search Warrants - Search of Vehicle Parked on Target Premises - Post-conviction Discovery by the Defense

State v. O'Brien, No. 96-3028-CR (filed 21 Jan. 1999)

The victim claimed that he had been sexually assaulted by the defendant while staying overnight at the defendant's home. The defendant's residence was a farmstead consisting of a two-story duplex, a barn, an outbuilding, a small backyard, and two driveways. Police obtained a search warrant authorizing a search of the premises occupied by the defendant and described as "1618 Hawthorne Drive - brown in color siding with white trim, two-family residence, specifically upper flat with said residence having two driveways." The warrant authorized a search for a pair of underpants and one pair of blue jeans that may constitute evidence of a crime.

While executing the warrant, the officers first searched the upper level of the duplex that was occupied by the defendant. When the pants and underwear were not located in the residence, the officers extended the search to buildings nearby. Approximately 200 feet from the home they observed a truck registered to the defendant parked next to one of the buildings. They searched the interior of the truck and recovered the pants and underwear inside it.

One of the issues before the supreme court was whether the evidence recovered from the truck should have been suppressed as the fruits of an unlawful search. In a majority opinion authored by Justice Wilcox, the court concluded that the search was lawful. In arriving at this conclusion, the court applied the physical proximity test adopted in State v. Andrews, 201 Wis. 2d 383, 549 N.W.2d 210 (1996). Under the physical proximity test, police can search all items found on the premises that are plausible repositories for objects named in the search warrant, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, irrespective of the person's status in relation to the premises. Under this test, the cornerstone of the Fourth Amendment, the reasonableness of the search, remains.

The court concluded that the truck was a plausible repository for the objects named in the search warrant, and because the vehicle was in close proximity to the home, it held that the detectives' search of the vehicle was reasonable.

The court also considered another issue in this case: whether and under what circumstances the defense is entitled to post-conviction discovery. It concluded that a defendant has a right to post-conviction discovery but only when the sought-after evidence is consequential to the case. This remedy will not be available where the evidence would not create a reasonable probability of a different outcome. Said the court, a party who seeks post-conviction discovery must first show that the evidence is consequential to an issue in the case and, had the evidence been discovered, the result of the proceeding would have been different.

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

Confessions - Miranda - Burdens - Taint

State v. Armstrong, Nos. 97-0925-CR & 97-0926-CR (filed 21 Jan. 1999)

While incarcerated on unrelated offenses, police interrogated Armstrong about a homicide. He made incriminating statements that were used as the basis for a later homicide charge against him. Armstrong's motion to suppress the statements was denied and he eventually pleaded guilty to lesser offenses. Armstrong appealed and the court of appeals certified the issues to the supreme court.

The supreme court, in an opinion written by Justice Crooks, affirmed the conviction in an important decision that resolves several questions regarding the law of confessions. First, the court held that the State has the burden of establishing whether custodial interrogation occurred under the Miranda rule. The holding cited the State's responsibility "for creating the custodial situation" and its superior access to the evidence. The standard of proof is the preponderance of the evidence.

Second, the court held "that a person who is incarcerated is per se in custody for purposes of Miranda. Thus, it was inconsequential that Armstrong was jailed on unrelated offenses. When police questioned him about the homicide he was in custody. Third, the court determined that "interrogation" for Miranda purposes occurred when police should have reasonably known that Armstrong was a suspect in the homicide. Initially, police believed that Armstrong was not a party to the offense but might have information. But as soon as he placed himself in the store when the victim died, he had become a suspect and police should have read Armstrong his Miranda rights. Since they failed to do so, Armstrong's oral statements to police were ordered suppressed.

Third, the court held that Armstrong's later written statement about his involvement was admissible in evidence despite the earlier Miranda violation. The supreme court overruled a part of State v. Ambrosia, 208 Wis. 2d 269 (Ct. App. 1997), and held that statements made subsequent to a Miranda-defective interrogation (as occurred here) are admissible if the later interrogation complied with Miranda and the statements were "voluntary" within the meaning of the due process clause, as set forth in Oregon v. Elstad, 470 U.S. 298 (1985). Any error that involved the potential use of the Miranda-defective statements was harmless and the conviction was upheld.

Impeaching Jury Verdict - Competent Evidence -
"Extraneous Source"

State v. Broomfield, No. 97-0520-CR (filed 2 Feb. 1999)

The supreme court, in an opinion written by Justice Wilcox, affirmed the defendant's conviction for burglary and operating without owner's consent. On appeal the defendant alleged that he had been denied a fair trial because prior to trial a juror had overheard others discussing the defendant's "past alleged misconduct." The discussion stemmed from the defendant's earlier trial on different charges that had resulted in an acrimonious hung jury. Some jurors from the earlier case had found their way onto the jury panel in this case, but those jurors were removed by a combination of peremptory and "for cause" challenges.

The supreme court first applied the established analysis for determining juror bias. The court held that there was no basis for removing the particular juror for failing to reveal potentially prejudicial information during voir dire. Given the questions asked during the voir dire, the juror did not respond in an incorrect or incomplete fashion.

The court found, however, that "extraneous prejudicial information" had been improperly brought to the juror's attention. The juror obtained the information from a "nonevidentiary source" and it was potentially prejudicial. In sum, the evidence was competent to impeach the verdict under Wis. Stat. section 906.06(2). It also constituted "clear, satisfactory, and convincing evidence that the juror made or heard the statements or engaged in the conduct alleged."

Finally, the court addressed whether the extraneous information constituted prejudicial error requiring a reversal. The court held that it did not: "Overhearing comments between two displeased panel members is quite unlike a potential juror reading information in the newspaper or hearing it on the news." The information carried "little indication of untrustworthiness," the juror testified that he "shrugged it off," and the incriminating evidence against the defendant was overwhelming.

Impeaching Verdict - Biased Juror - Inferred Bias

State v. Delgado, No. 96-2194-CR (filed 21 Jan. 1999)

The defendant was convicted of multiple sexual assaults involving young girls. During the voir dire, juror C did not disclose that she had been a victim of sexual assault as a child. The supreme court, in an opinion written by Chief Justice Abrahamson, reversed the lower courts and remanded the matter.

The supreme court applied a two-part test developed in prior cases. First, did the juror incorrectly or incompletely respond to a material question on voir dire? Second, if she did, is it more probable than not under the circumstances that the juror was biased against the moving party? The sole issue concerned the second question: Was juror C biased? The court agreed that there was no showing of "actual bias." Juror C "was honest, acted in good faith, and did not purposely give an incorrect or incomplete answer." The supreme court next addressed whether bias could be inferred. Clearly, "a juror's honesty is an important factor in determining inferred bias and . . . being a victim of sexual assault does not per se predispose the person to a particular result in a sexual assault case." The court held, however, that the trial judge erroneously exercised his discretion in declining to find inferred bias: "The record leaves no doubt that bias is to be inferred from the facts and circumstances of this case."

Medical Malpractice - Patients Compensation Fund -
Subrogation - "Health-care Providers"

Patients Compensation Fund v. Lutheran Hospital - La Crosse Inc., No. 96-1344 (filed 26 Jan. 1999)

The Patients Compensation Fund (the Fund) settled a medical malpractice claim by paying $10 million to the persons damaged. The Fund then brought this action seeking contribution against the hospital and various other defendants, including a nurse who carried a professional liability rider to her homeowner's policy. The circuit court ruled that the Fund had a subrogated right to maintain a contribution claim against the nurse, assuming she was negligent. The court of appeals reversed.

The supreme court, in an opinion written by Justice Crooks, affirmed the court of appeals. Clearly, the Fund could not bring a contribution action against the nurse unless it was subrogated to one of the joint tortfeasors. The court held that "the Fund does not have subrogation rights which would permit it to pursue a claim for contribution against one whose alleged negligence arose while he or she was conducting a health-care provider's business, when that person is not a Wis. Stat. Ch. 655 health-care provider or a health-care provider's insurer." No provision in chapter 655 suggested that "the assets or insurance of the employee of the health-care provider are relevant in determining the limit on the employee's liability or the amount of excess coverage which the Fund must provide." The court further held "that any liability of a nonhealth-care provider which arises while he or she is conducting a health-care provider's business, together with the liability of the health-care provider itself, is limited to the amount of primary coverage mandated by Wis. Stat. sec. 655.23(4) or the amount of coverage actually carried by the health-care provider, whichever is greater."

In this case the nurse, a hospital employee, was conducting hospital business when the negligence occurred. She was not a "health-care provider" as defined in chapter 655.

Governmental Entities - Statutory Notice - Prospective Application

Snopek v. Lakeland Medical Center, No. 96-3645 (filed 21 Jan. 1999)

Snopek received treatment at a county-owned medical facility in 1979. Following surgery for knee trouble in 1995 she learned that a piece of plastic may have been left in her knee during the 1979 treatment. On July 31, 1995, she filed a request for mediation and on Dec. 8, 1995, she filed this action alleging medical negligence. The defendant moved to dismiss on the ground that the notice of claim statute in effect at the time of the 1979 incident required the plaintiff to give notice of injury within 120 days after the occurrence of the event. Snopek countered that her claim was governed by the 180-day notice provision that was in effect when she discovered her injury in 1995. The circuit court agreed with Snopek, and the court of appeals affirmed.

The supreme court, in an opinion written by Justice Bablitch, reversed. A single issue was before the court: "whether the 1986 amendment which changed the prescribed time within which to give notice of injury for medical malpractice claims from 120 days after the injury-causing event to 180 days after the injury is discovered or should have been discovered, can be applied retroactively." The court held that the Legislature intended a prospective application only. A "nonstatutory provision" clearly explained that the new 180-day notice applied to occurrences happening on or after the act's effective date, June 14, 1986. Although "occurrence" was undefined, the court held that term refers to "the event or accident which causes the harm."

Chief Justice Abrahamson, joined by Justice Bradley, concurred but would have preferred giving the parties an opportunity to brief their views on the Legislature's intent.

Justice Wilcox, joined by Justice Prosser, also concurred but concluded that the 180-day waiting period is a statute of limitations, not a procedural rule.

Medical Malpractice - Informed Consent -
Withdrawal of Consent

Schreiber v. Physicians Ins. Co., No. 96-3676 (filed 26 Jan. 1999)

In 1987 Janice Schreiber delivered her third child, who was born a spastic quadriplegic. Her first two children had been born via cesarean delivery. During her prenatal care she was informed that a vaginal birth after cesarean (VBAC) was no more dangerous than another cesarean delivery. Janice testified that she agreed to the VBAC with the understanding that she could change her mind during labor and request a cesarean delivery. Once in labor, Janice experienced excruciating pain and requested a cesarean delivery on several occasions. Her doctor repeatedly refused the requests until the baby's heart rate dropped. He then performed a cesarean. The parties stipulated that had the doctor performed the delivery a half-hour earlier, the child would have been healthy. The case proceeded to a trial to the court on a theory of informed consent. The circuit court ruled that the doctor was under no obligation to readvise Janice of her options. The court of appeals reversed.

The supreme court, in an opinion written by Justice Ann Walsh Bradley, affirmed the court of appeals. The decision begins with the caution that it should not be interpreted "as creating a patient's right to demand any treatment she desires." The court's opinion addressed three "narrow and discrete issues." First, did Janice withdraw her consent? Second, if so, did Janice's withdrawal coupled with the existence of viable medical options "trigger" the doctor's duty to again discuss the benefits and risks of her medical options? Third, should a subjective or objective standard govern whether the doctor's failure to conduct another informed consent discussion caused the child's injuries?

As to the first issue, the court was satisfied that Janice had withdrawn her consent to the VBAC. Although the doctor contended that he would have performed the cesarean earlier had Janice "persisted," the court held that "after three unsuccessful personal attempts and a fourth unsuccessful attempt through the nurse," it was unclear what more she could have done. Second, the court agreed that upon withdrawal of consent, the doctor was obligated to conduct another informed consent discussion. The withdrawal returned doctor and patient to their "original position" and created "a blank slate upon which the parties must again diagram their plan." The supreme court rejected the trial judge's position that only a change in "medical circumstances" triggers the right to a new informed consent discussion: "Either a substantial medical or substantial legal change of circumstances results in an alteration of the universe of options a patient has and alters the agreed upon course of navigation through that universe." Here the legal change was "the withdrawal of an option [the VBAC] previously foreseen."

On the third issue, the supreme court reaffirmed its commitment to an objective test for informed consent cases generally, but concluded that in cases such as this the rationale supported a subjective approach. The problem was not a lack of information; rather, her claim was entirely subjective: "What did the patient himself or herself want?" Had the doctor engaged in a new informed consent discussion, Janice would have selected the cesarean delivery and the child would have been healthy.

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.