Criminal Law

Felony Murder: Burglary With Intent to Commit Reckless Homicide

State v. Mays, 2022 WI App 24 (filed 12 April 2022) (ordered published 25 May 2022)

HOLDING: The defendant was properly convicted of felony murder when the underlying felony was armed burglary committed by entering a building with the intent to commit the crime of recklessly endangering safety.

SUMMARY: Defendant Mays appealed his conviction for felony murder; the underlying felony was armed burglary. The theory of the armed burglary charge was that the defendant entered a building with the intent to commit the felony of second-degree recklessly endangering safety. The defendant argued that the underlying charge of armed burglary must be vacated because the theory of the armed burglary, as advanced by the state, does not exist. In short, he contended that one cannot intend to commit a reckless crime (see ¶ 2).

The court of appealed disagreed and affirmed the conviction in an opinion authored by Chief Judge Brash. Said the court: “Felony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrates that Mays forced his way into a building and started shooting with two guns, which is indicative of an intent to recklessly endanger the safety of those inside – a felony. Therefore, we conclude that Mays was convicted of a valid crime” (see ¶ 3).

Criminal Procedure

Postconviction Bars – Ineffective Assistance – Evidence – Sentencing – Right to be Present

State v. McReynolds, 2022 WI App 25 (filed 12 April 2022) (ordered published 25 May 2022)

HOLDINGS: 1) Trial counsel did not provide ineffective assistance of counsel. 2) The sentencing court properly provided written reasons for part of its sentencing decision, which were not read at the sentencing hearing.

SUMMARY: The defendant was convicted of several counts of delivering a controlled substance. The drug buys were made through a confidential informant (CI), who acted from “altruistic” motives (¶ 6). The trial judge sentenced the defendant in open court but filed a written statement that set forth its rationale for the sentence (see ¶ 3).

The court of appeals affirmed in an opinion authored by Judge Stark. First, the court held that this postconviction motion was not procedurally barred because of prior litigation. Although this was a second postconviction motion, the “unique facts of this case” demonstrated that the defendant’s “direct appeal rights did not lapse” and this motion was not barred (¶¶ 18, 20).

Second, trial counsel did not provide ineffective assistance by 1) failing to object when a police officer testified four times that he “believed” the CI who made a controlled buy or 2) not objecting to testimony about a “gang.” Because it was offered to explain the course of the investigation, the former did not constitute improper vouching (see ¶ 32). The latter, even if error, was not sufficiently prejudicial to warrant a new trial (see ¶ 43).

Third, although the trial judge sentenced the defendant in open court, the judge filed a separate “written explanation” that set forth the rationale for the sentence. The defendant did not object at the hearing. In light of the importance of a defendant’s right to be present when sentenced, the court of appeals declined to rule that he had forfeited his argument.

The court concluded “that although a defendant has a statutory and constitutional right to be present when a sentence is imposed, McReynolds has failed to prove beyond a reasonable doubt that the court’s use of § 973.017(10m)(b), without his waiver, violated his right to be present at sentencing. It is clear from the plain language of Wis. Stat. § 973.017(10m) that a circuit court’s ‘sentencing decision’ and the pronouncement of ‘the reasons for its sentencing decision’ are distinct events” (¶¶ 59-60).

Turning to any constitutional issues, the court found that the defense had “presented no legal authority for such a claim” (¶ 64). In particular, “McReynolds has not argued how or why his presence during the explanation of the sentencing decision ‘would contribute to the fairness of the procedure’” (¶ 65).

Employment Law

Fair Labor Standards Act – Exemptions

Magnussen v. State, 2022 WI App 23 (filed 5 April 2022) (ordered published 25 May 2022)

HOLDING: A state-employed nurse clinician fell within an exemption under the Fair Labor Standards Act (FLSA).

SUMMARY: The plaintiff, a nurse clinician employed by the Wisconsin Department of Corrections, filed this wage claim alleging that her employer – the state – had violated the law by categorizing her as exempt under applicable laws, “particularly with regard to the calculation of overtime pay as set forth in the Fair Labor Standards Act (FSLA)” (¶ 1). The circuit court granted summary judgment in favor of the state.

The court of appeals affirmed in an opinion authored by Chief Judge Brash. The court held that the circuit court properly granted summary judgment on the ground that nurse clinicians, such as the plaintiff, are salaried, exempt employees under applicable wage laws (see ¶ 8).

“We conclude that Magnussen’s compensation clearly falls within the parameters of 29 C.F.R. § 541.604(a). As previously discussed, the record indicates that Magnussen is paid on a salary basis; that is, she was paid a set amount each pay period regardless of the number of hours she worked, except for deductions under the public accountability exception. The fact that her compensation is broken down into an hourly amount – as is the case for all State employees’ compensation – does not translate into her wages being ‘computed on an hourly, daily or shift basis,’ as required for the application of § 541.604(b) and the reasonable relationship requirement” (¶ 21).

Nor did the “add-on pay” she received for working weekends or for direct patient care alter this conclusion (¶ 22). Thus, the record showed she received a guaranteed salary, and the state met its burden of demonstrating she was exempt from FLSA overtime requirements (see ¶ 23).

Evidence

Child Witnesses – Recorded Statements

State v. Marks, 2022 WI App 20 (filed 27 April 2022) (ordered published 25 May 2022)

HOLDING: A recorded statement of a very young sexual assault victim was properly admitted at trial.

SUMMARY: The defendant was convicted of sexually assaulting a four year old. The victim testified at trial, and the state introduced a recorded statement made by the child in which a separate audio recording had been inserted to improve the video’s sound quality. A social worker conducted the “forensic interview.”

The court of appeals affirmed in an opinion authored by Judge Nashold. The first issue involved Wis. Stat. section 908.08 and builds on the recent decision in State v. Mercado, 2021 WI 2, 395 Wis. 2d 296, 953 N.W.2d 337. The blended recording – the original video with the merged audio file – comported with the statute’s requirement that a recording be “accurate and free from excision, alteration and visual or audio distortion” (¶ 23). There was no “allegation that the final DVD is an inaccurate representation of the content of the interview” (¶ 27).

Second, the recorded statement sufficiently demonstrated that the child understood the importance of truth-telling, as required by Wis. Stat. section 908.08(3)(c). The court reviewed the recording in its entirety; although the child was “confused” by some of this questioning, overall the recording showed that she understood the consequences of lying and the need to tell the truth (¶ 30).

Third, the recorded statement comported with the “indicia of trustworthiness” requirement of Wis. Stat. section 908.08(3)(d). A defense expert critiqued the social worker’s “technique” on several points, but none were sufficiently compelling to warrant the statement’s exclusion (¶ 35).

Finally, the defendant’s trial counsel was not ineffective for failing to renew the attack on the statement’s admissibility once he received the expert’s report. This omission did not demonstrate sufficient prejudice, that is, “reasonable likelihood of a different result” (¶ 36).

Municipal Law

Subdivision of Property – Requirement That Property Owner Install Public Improvements – Unconstitutional Exaction

Fassett v. City of Brookfield, 2022 WI App 22 (filed 20 April 2022) (ordered published 25 May 2022)

HOLDING: The city’s proposed exaction, which requires the plaintiff to install public improvements as a condition for approval of her proposed property subdivision, is an unconstitutional taking.

SUMMARY: Fassett sought to subdivide her property to create multiple residential lots. Dead-end streets are on each side of the property she would like to subdivide. As a condition for approval of the proposed subdivision, the city of Brookfield required that Fassett dedicate part of her property for a new public street connecting the dead-end streets and that she pay to construct it.

The rationale for imposing these conditions was largely 1) the city’s conclusion that the previous platting of the streets of the subdivisions on each side of the plaintiff’s property was done in anticipation of the street being connected; and 2) the city’s municipal code, which provides that dead-end streets and cul-de-sacs are to be minimized except when necessary due to topographical or environmental features. The city contended that through streets improve public-safety-response times and snowplow operations, shorten distances for vehicle transportation and pedestrians, and reduce travel demand on arterial and collector streets (see ¶ 8).

The plaintiff brought this action seeking certiorari review of the city’s denial of her application. The circuit court granted her motion for summary judgment. In an opinion authored by Judge Neubauer, the court of appeals affirmed.

The issue presented to the court was whether the city’s conditional approval of Fassett’s proposed land-split development, requiring land dedication and the street connection, is a constitutionally permitted exaction – a category of regulatory takings. An exaction is defined as conditioning approval of development on the dedication of property to public use. Exactions can also include conditioning a development approval upon the developer making some financial commitment, such as here requiring the plaintiff to construct a public street (see ¶ 20).

“The analysis of whether a government exaction is constitutional has been set forth by the United States Supreme Court in a two-part test. First, the government must establish that an ‘essential nexus’ exists between a legitimate government interest and the exaction. Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987). Second, if an exaction satisfies the essential nexus requirement, the government must demonstrate ‘rough proportionality’ between the exaction and the impact caused by the development. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). This two-prong test is referred to as the Nollan/Dolan test” (¶ 21).

With regard to the essential-nexus requirement, the government must show that the proposed development created the need for the exaction – such that the government has a legitimate interest in demanding mitigation of the impacts of a proposed development (see ¶ 25). In this case, there was no evidence that the proposed development would increase congestion, decrease safety, or hinder the adequate provision of transportation – the public benefits the city argued would be advanced by the exaction. “The City’s desire to improve current conditions for the public’s benefit, while laudable, is not sufficient to shift the cost of eliminating the dead ends to Fassett” (¶ 28).

Because the exaction in this case did not satisfy the essential-nexus requirement, the analysis could be concluded. However, the court went on to hold that the city failed to demonstrate a “rough proportionality” between the exaction and the effects of the subdivision of the plaintiff’s property (¶ 31).

“In short, the City has not met the ‘essential nexus’ and rough proportionality requirements because there is no evidence that the identified impacts of the dead-end streets are caused by the proposed lot split of the [plaintiff’s property]. Rather, it is apparent that the City would like to seize upon this opportunity to address the existing dead ends and assign the costs of providing a public benefit – a through street – to Fassett” (¶ 32).

Torts

Statute of Limitation – Tolling

Estate of Cohen v. Trinity Health Mgmt. LLC, 2022 WI App 26 (filed 14 April 2022) (ordered published 25 May 2022)

HOLDING: An estate’s action against a residential-care facility was barred by the statute of limitation.

SUMMARY: Cohen resided in a community-based residential facility because of his mental illnesses. On Feb. 2, 2018, he was seriously burned while left unsupervised. He died on March 2, 2018. On Feb. 23, 2021, his estate filed suit against a variety of persons and entities allegedly responsible for his injuries and death. The circuit court dismissed his claims as time barred by the three-year statute of limitation in Wis. Stat. section 893.555(2)(a).

The court of appeals affirmed in an opinion authored by Judge Fitzpatrick. “[T]he Estate was required to bring its claim by February 2, 2021, three years from the date of Cohen’s injury. Because the Estate filed its complaint on February 23, 2021, the Estate’s claim is not timely under § 893.555(2)(a)” (¶ 10).

Wis. Stat. section 893.16 did not alter this outcome. Section 893.16 allows persons with mental illnesses to file a claim within two years after a mental illness ceases. Cohen’s mental illness ceased upon his death on March 2, 2018.
“[P]ursuant to § 893.16(2), the provisions of § 893.16(1) ‘do[] not shorten a period of limitation otherwise prescribed’” (¶ 12).

“Accordingly, applying the terms of § 893.16, the three-year period of limitation in Wis. Stat. § 893.555(2)(a) applies to the Estate’s claim rather than the two-year period of limitation in § 893.16(1). In sum, the provisions of § 893.16 do not alter our conclusion that the Estate’s claims are not timely under the three-year statute of limitations in § 893.555(2)(a)” (id.) (citation omitted). The court of appeals distinguished Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353.