Vol. 71, No. 2, February
1998
Court of Appeals Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Arbitration | Attorneys
| Attorney Fees | Civil
Procedure |
| Contracts | Criminal Law
| Criminal Procedure |
| Family Law | Insurance
| Motor Vehicle Law |
| Torts |
Criminal
Law
Bail Jumping - Multiple Violations of Same Bond
Arising Out of Single Episode
State v. Anderson, Nos. 96-0087-CR
and 96-0088-CR (filed 8 Oct.
1997) (ordered published 20 Nov. 1997)
The defendant was on bail pending trial on a substantial battery charge.
He was under the supervision of a single bond. Among the conditions
of his bond was one prohibiting him from consuming alcohol and another prohibiting
contact with his girlfriend, the battery victim. While the defendant was
on bail, the police were called to the girlfriend's residence. When they
arrived, the defendant was there and it was apparent that he had been drinking.
Both the drinking and his presence at the residence violated bond provisions.
As a result, he was charged and subsequently convicted of two counts of
felony bail jumping.
The court of appeals reversed. In a decision authored by Judge Snyder,
the court agreed with the defendant that, because he was under a single
bond, and the two bail jumping charges were for "an act of contact
and drinking at the same time on the same day and at the same place,"
charging him twice for bail jumping was multiplicitous.
Burglary - Arming Oneself While in Burglarized
Premises - "Trigger-locked" Firearm
State v. Norris, No.
96-2158 (filed 23 Sept. 1997) (ordered published 20 Nov. 1997)
The defendant was convicted of aggravated burglary contrary to Wis. Stat.
section 943.10(2)(b), which makes it a Class B felony to commit a burglary
under the following circumstances: "While unarmed, but arms himself
with a dangerous weapon ... while still in the burglarized enclosure."
In an opinion authored by Judge Hoover affirming the conviction, the
court of appeals rejected the defendant's argument that the state was required
to prove that he armed himself while in the burglarized enclosure to
facilitate the commission of the burglary. This is not an element of
the offense. The court also rejected the defendant's contention that, because
the gun he armed himself with had a trigger lock, it could not be considered
a "dangerous weapon." The statutory definition of "dangerous
weapon" includes "any firearm." See Wis. Stat. §
939.22(10). Said the court, case law demonstrates that a firearm need not
be operational to be considered a dangerous weapon. The gun the defendant
armed himself with did not cease to be a dangerous weapon simply because
it had a trigger lock. The court also pointed out that "a gun with
a trigger lock remains a dangerous weapon because of its appearance and
its potential use as a bludgeoning instrument."
Controlled Substances - Conspiracy to Delivery Drugs
State v. Cavallari,
No. 96-3391-CR (filed 1 Oct. 1997) (ordered published 20 Nov. 1997)
The defendant was convicted of conspiracy to deliver a controlled substance
under Wis. Stat. section 161.41(1x) (a statute since renumbered to section
961.41(1x) without substantive change). On appeal he argued that the evidence
introduced at trial was insufficient to prove a conspiracy to deliver controlled
substances because the evidence established nothing more than a buy-sell
agreement between himself and another. In State v. Smith, 189 Wis.
2d 496, 525 N.W.2d 264 (1995), the supreme court addressed the issue of
whether an agreement between a buyer and a seller for delivery of a small
amount of a controlled substance for personal use by the buyer constituted
a conspiracy to deliver a controlled substance. The court concluded that
it did not.
Although Smith definitively stated when a buyer-seller relationship is
not a conspiracy, it did not expressly identify when such a relationship
might ripen into, or constitute, a conspiracy. In this case the court of
appeals concluded that, in order to establish a conspiracy for purposes
of section 161.41(1x), the state must present evidence that an agreement
existed between the seller and the buyer that the buyer will deliver at
least some of the controlled substances to a third party.
Escape from Custody - Failure of Person Jailed
for Failing to Pay Forfeiture to Return from Work Release
State v. Smith, No.
97-0266-CR, and State v. Dybdal,
No. 97-1038-CR (filed 29 Oct. 1997) (ordered published 20 Nov. 1997)
The defendants were placed in the county jail after failing to pay a
forfeiture following their convictions for noncriminal municipal violations.
While jailed, they were granted Huber work release privileges. Neither
returned to the county jail after being temporarily released for work. They
both were convicted of escape and the court of appeals affirmed.
In a decision authored by Judge Brown, the appellate court concluded
that the Legislature meant to include those persons incarcerated due to
nonpayment of a forfeiture as being subject to a misdemeanor escape charge
if they abscond from work release.
Sexual Assault - Constitutionality of Wis. Stat.
Section 940.225(2)(c) - Sexual Assault of a Person
Suffering from Mental Illness or Deficiency
State v. Smith, No.
96-2961-CR (filed 6 Nov. 1997)(ordered published 17 Dec. 1997)
The defendant was convicted of violating Wis. Stat. section 940.225(2)(c),
which prohibits "sexual contact or sexual intercourse with a person
who suffers from a mental illness or deficiency which renders that person
temporarily or permanently incapable of appraising the person's conduct,
and the defendant knows of such condition." The circuit court dismissed
the case after concluding that the statute is unconstitutionally vague.
The court of appeals, in a decision authored by Judge Roggensack, reversed.
It concluded that the statute provides fair notice of the prohibited conduct
and also provides an objective standard for enforcement of violations.
To convict a defendant under section 940.225(2)(c), the state must prove
all of the following: 1) that the defendant had sexual contact or sexual
intercourse with the victim; 2) that the victim suffered from a mental illness
or deficiency; 3) that the mental illness or deficiency rendered the victim
temporarily or permanently incapable of appraising his or her own conduct;
and 4) that the defendant knew that the victim had a mental illness or deficiency
that rendered the victim temporarily or permanently incapable of appraising
his or her own conduct.
In this case the defendant did not assert that he had a First Amendment
right to have sexual contact or sexual intercourse with the victim. Therefore,
he could not make a challenge based on hypothetical facts. Based on the
facts of his own case, the defendant contended that the statute is unconstitutionally
vague because the words "incapable" and "appraising"
did not give him fair notice of what type of conduct is proscribed.
The appellate court rejected the defendant's position for three reasons.
First, the defendant could not be found guilty absent proof of his knowledge
that the victim's mental illness or deficiency rendered the victim temporarily
or permanently incapable of evaluating the proposed sexual acts. Secondly,
the commonly used definitions of "incapable" and "appraising"
are not unconstitutionally vague. And third, when read in context, the statute
evinces a clear legislative intention to protect those vulnerable citizens
who may lack the capacity, temporarily or permanently, to protect themselves
and to thereby put the defendant on notice to consider his own conduct differently
than he otherwise may have done.
Because the statute provides fair notice of the prohibited conduct and
provides an objective standard for enforcement of violations, the court
concluded that the defendant did not meet his burden of proving that it
is unconstitutionally vague beyond a reasonable doubt. Accordingly, it reversed
the order of the circuit court and remanded for further proceedings.
Sexual Exploitation of Children -
Constitutionality of Wis. Stat. Section 948.05(1)(c)
State v. Zarnke, No.
97-1664-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)
The defendant was charged under Wis. Stat. section 948.05 with capturing
off the Internet sexually explicit images of young boys and then distributing
copies of the pictures to others. The statute under which he was prosecuted
provides that one commits a Class C felony if, with knowledge of the character
and content of the sexually explicit conduct involving the child, he or
she "produces, performs in, profits from, promotes, imports into the
state, reproduces, advertises, sells, distributes or possesses with intent
to sell or distribute, any undeveloped film, photographic negative, photograph,
motion picture, videotape, sound recording or other reproduction of a child
engaging in sexually explicit conduct." The statute goes on to provide
that "it is an affirmative defense to prosecution for violation of
this section if the defendant had reasonable cause to believe that the child
had attained the age of l8 years, and the child exhibited to the defendant,
or the defendant's agent or client, a draft card, driver's license, birth
certificate or other official or apparently official document purporting
to establish that the child had attained the age of l8 years. A defendant
who raises this affirmative defense has the burden of proving this defense
by a preponderance of the evidence."
The parties to this litigation agreed that controlling precedent from
the U.S. Supreme Court requires the state to prove that the defendant knew
the age of the child involved as an element of the offense. The issue before
the court of appeals was whether the Wisconsin statute impermissibly relieves
the state of proving this element by providing ignorance of age as an affirmative
defense.
In a decision authored by Judge Hoover, the court concluded that the
Legislature did not intend the affirmative defense quoted above to apply
to those violations of the statute that do not concern face-to-face involvement
with the child. The court agreed with the state that the statute can be
saved and thus applied to the defendant by reading into it the requirement
that the state prove knowledge of the minority of the persons depicted in
the photographs as an element of the offense of distributing pictures of
children engaged in sexually explicit conduct. In so holding, the court
concluded that the Legislature did not intend to relieve the state of the
burden of proving knowledge of age where the illegal conduct under section
948.05(1)(c) occurs outside of the child's presence.
Criminal
Procedure
Sentencing Following Revocation
of Probation - Relevant Information
State v. Schordie,
No. 97-0071-CR (filed 15 Oct. 1997) (ordered published 20 Nov. 1997)
The defendant was convicted of felony bail jumping. The circuit court
withheld sentencing and placed him on probation for five years. The defendant
subsequently violated the terms of his probation and, following revocation
of probation, the trial court sentenced him to the maximum term for the
felony bail jumping conviction.
On appeal the defendant argued that it was improper for the trial court
to consider at sentencing the acts he had committed that resulted in the
probation revocation. In an opinion authored by Judge Brown, the court of
appeals concluded that a trial court may consider all relevant information
when imposing sentence following revocation of probation, including the
acts resulting in that revocation.
Juries - Strikes for Cause - New Trial
State v. Ferron, No.
96-3425-CR (filed 21 Oct. 1997) (ordered published 20 Nov. 1997)
The court of appeals, in an opinion written by Judge Cane, reversed the
defendant's conviction for burglary and remanded the matter for a new trial.
The court held that the trial judge erroneously refused to strike a juror
for cause, thereby forcing the defendant to use a peremptory strike to excuse
the juror, which "arbitrarily deprived" him of his "right
to exercise his full complement of peremptory challenges." The juror
in question indicated that she might not be able to follow the presumption
of innocence instructions if the defendant declined to testify on his own
behalf. The court of appeals concluded that the juror had expressed a clear
bias against defendants who chose not to testify and never indicated that
he could, or would, follow the jury instructions to the contrary.
The defense did not deny that the jury actually impaneled was fair and
impartial. But applying State v. Ramos
(1997), the court held that the defendant was entitled to his full complement
of peremptory challenges. The record revealed that he used his first peremptory
strike to remove the offending juror.
Sentencing - Imposition of Sentence Consecutive
to Jail Time Defendant Serving as a Condition of Probation
State v. Maron, No.
97-0790-CR (filed 23 Oct. 1997) (ordered published 20 Nov. 1997)
The trial court imposed a sentence of 75 days in jail with Huber
privileges to be served consecutive to the jail time the defendant already
was serving as a condition of probation in another case. On appeal the defendant
contended that the trial court lacked the authority to impose a sentence
consecutive to jail time already being served as a condition of probation.
The court of appeals, in a decision authored by Judge Vergeront, reversed
and remanded. The court concluded that Wis. Stat. section 973.15(2) does
not give the trial judge authority to order that the sentence be served
consecutive to jail time already being served as a condition of probation.
Search Warrants - Searches of Vehicles -
Post-conviction Discovery Guidelines
State v. O'Brien, No.
96-3028-CR (filed 22 Oct. 1997) (ordered published 20 Nov. 1997)
The court of appeals, in a decision authored by Judge Anderson, affirmed
the defendant's sexual assault convictions and an order denying his motion
for a Machner hearing. The opinion addresses several important issues
of statewide importance.
First, the court held that a search warrant for a "premises"
extended to the search of a truck, a barn and an outbuilding. "[T]he
warrant was actually to search O'Brien's premises and person; he was not
a third-party visitor to the home who happened to be caught up in the search.
Also, O'Brien's truck was parked on the premises, not on a public street."
Second, the defendant filed a motion for post-conviction discovery, seeking
independent testing of certain exhibits. To provide necessary guidance on
this issue, the court set forth the following "guidelines" governing
post-conviction discovery requests. The defendant must: "1) provide
supporting affidavits with the motion which describe the material sought
to be discovered and explain why the material was not supplied or discovered
at or before trial; 2) establish that alternative means or evidence is not
already available such that the post-conviction discovery is necessary to
refute an element in the case; 3) describe what results the party hopes
to obtain from discovery and explain how those results are relevant and
material to one of the issues in the case; and 4) after meeting the first
three criteria, the party must then convince the trial court that the anticipated
results would not only be relevant, but that the results would also create
a reasonable probability of a different outcome." On this record, the
defendant was not entitled to post- conviction discovery.
Parole - Revocation of Parole - Credit for "Street Time"
State ex rel. Ludtke v. Department
of Corrections, No. 96-1745 (filed 15 Oct. 1997) (ordered published
17 Dec. 1997)
The defendant was released on parole following service of part of his
sentence in prison. He successfully remained on parole for more than three
years, but his parole was subsequently revoked and he was reincarcerated.
The Department of Corrections thereafter advised the defendant with regard
to the amount of time remaining on his sentence, giving him credit for some,
but not all, of the time he had spent on parole ("street time").
The defendant filed a petition seeking a writ of habeas corpus discharging
him from custody claiming that he had been unlawfully denied credit for
time already served on parole. His argument was that he was entitled to
credit for all of his street time and, had he been given such credit, he
would be entitled to immediate discharge.
In a decision authored by Judge Nettesheim, the court of appeals concluded
that the resolution of the issue presented by the defendant is governed
by Wis. Stat. section 302.11(7). This statute provides that, if parole is
revoked, the parolee may be returned to prison for a period up to the remainder
of the sentence. "The remainder of the sentence is the entire sentence,
less time served in custody prior to parole."
Applying this statute, the court concluded that the defendant was not
entitled, as a matter of law, to sentence credit for his full street time
while on parole. With reference to credit that was actually awarded by the
department, the court held that the defendant was properly credited with
all custody confinement to which he was entitled and that he was properly
credited with some of his street time that the department deemed appropriate
pursuant to section 302.11 (7) (a). Finally, the court concluded that the
defendant's right to protection from double jeopardy was not violated when
he was denied credit for the entire time he served on parole prior to revocation.
Jury Selection - Batson - Strikes Based on Gender and Age
State v. King, No.
97-1509-CR (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)
Purposeful racial and gender discrimination in selecting the jury violates
a litigant's right to equal protection because it denies the protection
that a trial by jury is intended to secure. See
Batson v. Kentucky, 476 U.S. 79 (l986). See
also J.E.B. v. Alabama, 511 U.S. 127 (1994) (where the Court held
that the Equal Protection Clause forbids intentional discrimination on the
basis of gender just as it prohibits discrimination on the basis of race).
In this case the defendant argued that the prosecutor violated his equal
protection rights when she purposely struck older females from the jury.
This was a sexual assault prosecution and the district attorney indicated
that her experience in trying sexual assault cases was that older females
are very judgmental of female sexual assault victims. The thrust of the
defendant's argument was that the prosecutor was prohibited from using gender
as a basis upon which to strike the jurors in question. The state acknowledged
that gender was a factor and that it was not a valid reason for striking
a juror. However, it argued that age was a valid reason and, since there
were two reasons for the strikes, the appellate court should adopt the "dual
motivation test" to determine whether to allow these strikes. [In footnote
the court noted that the state had cited a number of federal decisions holding
that removing a juror because of age is not a violation of the Equal Protection
Clause. The appellate court assumed without deciding that age is a permissible
reason.]
Under "dual motivation" analysis, the party who exercised the
strike must prove that the strike would have been exercised regardless of
the discriminatory motivation. Under this analysis, a prohibited factor,
such as gender, would not automatically result in an equal protection violation.
If there were other permissible motivating factors, the prohibited factor
must have been the decisive one in order for a constitutional violation
to occur. In this case the state contended that age - not gender - was the
decisive factor.
The court of appeals noted that it had previously rejected the state's
argument, although at the time it was not denominated "dual motivation."
See State v. Jogodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App.
1997). It concluded in this case that the circuit court clearly erred when
it concluded that the prosecutor had not purposely engaged in gender discrimination
by striking the jurors in question because gender was not the sole factor.
Based on the prosecutor's statement that she struck these two jurors because
they were older females, the only correct conclusion on this record, said
the court, is that the prosecutor purposely used gender as a basis for striking
these jurors. Following its holding in Jagodinsky, the court concluded
that this constituted a violation of the Equal Protection Clause and the
only remedy is reversal of the conviction and remand for a new trial.
Jury Trial - Simultaneous Jury Trials of Two Defendants
State v. Avery, No.
96-2873-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)
Section 971.12(3) of the Wisconsin Statutes ("Relief from Prejudicial
Joinder") provides that the district attorney shall advise the court
prior to trial if he or she intends to use the statement of a codefendant
that implicates another defendant in the crime charged. Thereupon, the judge
shall grant a severance as to any such defendant.
The situation contemplated by the statute arose in this case and, instead
of conducting two completely separate jury trials, the court proceeded to
try the two defendants simultaneously but before two juries. The defendant's
attorney did not object to this procedure and, on appeal, the defendant
claimed that counsel was ineffective for failing to make that objection,
contending that Wisconsin law does not allow for simultaneous trials of
two defendants before two juries.
The court of appeals, in a decision authored by Judge Schudson, affirmed.
It concluded that Wisconsin law does allow for the simultaneous trials of
two defendants before two juries and that, in this case, the trial court
carefully employed dual jury procedures that protected the defendant's rights.
Among other things there was separate jury selection, separate opening and
closing statements, and separate jury instructions. The jury of one defendant
was excluded from the court during the presentation of evidence inadmissible
as to that defendant. Thus, the evidence received by the defendant's jury
at the joint trial was exactly what the evidence would have been had he
been tried alone. Therefore, the dual jury procedure in effect provided
the severance of defendants contemplated by the statute cited above.
Probation - Expiration of Probation Term -
Unfulfilled Conditions of Probation
State v. Stefanovic,
No. 97-1791-CR (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)
The defendant was convicted of carrying a concealed weapon. The court
withheld sentence and placed her on probation for one year. As a condition
of probation, the court ordered the defendant to serve 30 days in the county
jail.
The defendant filed a notice of intent to pursue post-conviction relief
and a motion for release pending appeal. The trial court granted the request
for release pending appeal. However, the court did not stay the probation
and thus the defendant remained on probation during the course of her appeal.
More than one year later, the defendant's conviction was affirmed by
the court of appeals. By this time, however, the defendant had already served
her one-year term of probation and the Department of Corrections had issued
its certificate discharging her from probation. Following remittitur, the
trial court scheduled a hearing to determine whether it could order the
defendant to serve the 30-day jail term, which had been imposed as a condition
of probation, even though the period of probation had expired. The court
concluded that it had not lost jurisdiction over the defendant and thus
ordered her to serve the jail term.
The court of appeals, in a decision authored by Judge Nettesheim, reversed.
It concluded that the trial court had lost jurisdiction over this case when
the period of probation expired. In making this ruling, the appellate court
candidly acknowledged that the trial court's loss of jurisdiction frustrated
the court's sentencing scheme. However, "it is axiomatic that before
any court can act, it must have jurisdiction to do so."
In the course of its discussion the court noted that Wis. Stat. section
973.09(3)(a) allows a trial court to extend probation for cause if such
action is taken prior to the expiration of the original probation period.
However, no such extension was sought in this case by the state, the Department
of Corrections, or the trial court.
Probation Revocation - Certiorari Review -
Habeas Corpus Not Available
State ex rel. Reddin v. Galster,
No. 97-0111 (filed 20 Nov. 1997) (ordered published 17 Dec. 1997)
The defendant was imprisoned following revocation of probation. He challenged
that revocation by seeking a writ of habeas corpus, claiming that the proceedings
to revoke him were defective. The circuit court denied the habeas petition.
The court of appeals, in a decision authored by Judge Deininger, affirmed
because habeas corpus proceedings are not available for the purpose of challenging
an administrative order revoking probation. Review of probation and parole
revocation decisions is by certiorari directed to the court of conviction.
The court further concluded that even if it were to construe the defendant's
petition as one for certiorari, it would still affirm the trial court's
dismissal order. The petition was not filed for more than one year after
probation was ordered revoked and was thus barred by laches. See State
ex rel. Enk v. Mentkowski, 76 Wis. 2d 565, 252 N.W.2d 28 (1977) (certiorari
proceedings not commenced within six months of the action sought to be reviewed
are barred by laches).
In this decision the court noted that it has previously intimated that
a writ of habeas corpus may be available to raise a claim of ineffective
assistance of counsel during probation revocation proceedings. See State
v. Ramey, 121 Wis. 2d 177, 359 N.W.2d 402 (Ct. App. 1984). The Ramey
court held that a claim of ineffective assistance of counsel during probation
revocation proceedings could not be addressed on certiorari review, because
the scope of that review is solely upon the actions and determinations of
the administrative decisionmaker. In this case the defendant raised no claim
regarding the effectiveness of his representation during the probation revocation
proceedings. He challenged the administrative decision to revoke his probation
on procedural and substantive grounds. A circuit court review of those issues
was available by certiorari, an adequate remedy, which thus precluded the
issuance of a writ of habeas corpus.
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