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    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. 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.

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

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    Vol. 83, No. 5, May 2010

    Civil Procedure

    Issue Preclusion – “Actually Litigated”

    Flooring Brokers Inc. v. Florstar Sales Inc., 2010 WI App 40 (filed 10 Feb. 2010) (ordered published 31 March 2010)

    “This appeal originates from the installation of flooring at an assisted living center owned and operated by CB Investments (CBI) and known as Cameo Care Campus. Flooring Brokers requested that a representative from Florstar accompany them to Cameo Care to make a recommendation for appropriate commercial flooring” (¶ 2). A Florstar representative recommended a certain floor, which, after installation, proved unsatisfactory. CBI sued Flooring Brokers, Florstar, and the floor’s manufacturer. The latter two parties settled with CBI and were dismissed from the case. CBI’s breach-of-contract claim went to trial, and a jury awarded damages of $40,000. Flooring Brokers then sued Florstar for multiple claims, including breach of warranty, misrepresentation, and promissory estoppel. The trial judge dismissed the claims against Florstar on the ground of issue preclusion.

    The court of appeals reversed in an opinion authored by Judge Snyder. “Flooring Brokers neatly packs its primary appellate issue into the following statement: ‘[T]he trial court [erred] as a matter of law because the trial court failed to address the first part of the issue preclusion analysis – the trial court failed to determine if the issues alleged in this action were ‘actually litigated’ in a previous litigation.’” Rather, the trial court focused instead on various “fundamental fairness factors” (¶ 9). “Although both actions arise from the unsatisfactory flooring at Cameo Care, the parties and obligations involved were different at each stage of the transaction. Flooring Brokers made certain representations and promises to CBI, which were the subject of the prior litigation. The jury was asked to determine whether Flooring Brokers (1) failed to properly install the flooring, (2) breached an express installation warranty it issued to CBI, and (3) breached an implied warranty of fitness for the intended purpose. Neither the issue of Florstar’s recommendation of the Commissions Plus flooring to Flooring Brokers nor the contractual obligations between Flooring Brokers and Florstar were reduced to judgment or essential to the CBI judgment” (¶ 13). Nor did issue preclusion apply to Flooring Broker’s claim for contribution (see ¶ 14).

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    Criminal Law

    Armed Robbery – Reasonable Belief that Defendant Was Armed

    State v. Rittman, 2010 WI App 41 (filed 23 Feb. 2010) (ordered published 31 March 2010)

    Rittman was convicted at a bench trial of robbery. Wisconsin Statutes section 943.32(1) classifies robbery as a Class E felony; however, the crime is classified as a Class C felony if the actor violates the robbery statute “by use or threat of use of a dangerous weapon, a device or container described under s. 941.26(4)(a) or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon or such a device or container.” Wis. Stat. § 932.32(2). On appeal, the defendant contended that the evidence of guilt was insufficient because he did not display a dangerous weapon or anything that could be perceived as a dangerous weapon or say that he had one.

    At trial, a bank teller testified that the defendant walked quickly into the bank and over to her station. With his right hand, he handed her a note that said: “Put all money from drawer on counter quietly and quickly. No one gets hurt” (¶ 3). He had a cell phone in his left hand and put his right hand in his pocket after he gave her the note. When the teller was asked about what her thoughts were when she saw the defendant put his hand in his pocket, the teller testified that she “‘was afraid he had some type of weapon because he was definitely intimidating and threatening by what he was doing’” (id.). When asked if she thought the defendant had a weapon in his pocket, she testified that “‘I was pretty sure there was probably a weapon’” (id.). The teller further testified that, after she gave money to the robber, he warned her not to interfere with his escape, telling her “‘to get down as he exited the bank and nobody would get hurt if nobody followed him or didn’t do anything’” (id.).

    On these facts the circuit court found the defendant guilty of armed robbery, even though no weapon was ever displayed. The court concluded that the state had proved that the teller reasonably believed that the defendant was armed with a dangerous weapon when he robbed the bank (see ¶ 4).

    In a decision authored by Judge Fine, the court of appeals affirmed. It concluded that the facts as described above “combined to give the teller a reasonable belief that Rittman had a dangerous weapon with which he could ‘hurt’ her if she did not do what he demanded. There was no need for the note to use the word ‘gun’ or ‘bomb’ to have the teller reasonably believe that she could be ‘hurt,’ as the note threatened. Certainly, it would have been foolhardy for her to say to Rittman that she did not believe he could seriously hurt her because she did not see a gun and he did not specifically say he had one. The note and the other circumstances were enough to satisfy the requirements that: (1) the teller believed that Rittman was armed with a dangerous weapon; and (2) her belief was reasonable. Under our de novo review of the statute, we agree with the trial court that there was sufficient evidence to prove beyond a reasonable doubt that Rittman violated Wis. Stat. § 943.32(1) & (2)” (¶¶ 10-11).

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    Criminal Procedure

    Plea Negotiations – Prosecutor’s Sentencing Recommendation

    State v. Duckett, 2010 WI App 44 (filed 17 Feb. 2010) (ordered published 31 March 2010)

    The issue in this case was whether the prosecutor’s remarks at the sentencing hearing breached the parties’ plea agreement. In exchange for the defendant’s agreement to plead no contest to a charge of first-degree reckless injury while armed, the state agreed to request a presentence investigation (PSI) report and to recommend prison time, without any specific recommendation as to the length of the prison sentence. Duckett remained free to argue for probation with a stayed sentence.

    “At the sentencing hearing…, the prosecutor began his recommendation as follows: ‘Your Honor, again, the
    [S]tate is recommending prison time here in this case. And the PSI, the recommendation from the PSI is for two to five years, followed by four to five years of extended supervision.’ The prosecutor then ‘highlight[ed] the aggravating and mitigating factors that the
    [S]tate [saw] in this case.’ The prosecutor set forth, in great detail, the crime and Duckett’s lengthy criminal record, concluding, ‘[t]his is an aggravated case, and I think it’s shocking, the defendant’s responses to the questions in the PSI, how brazen his attitude is here. And I hope the [S]tate’s highlighting of some of these factors here will be taken into account by the court’” (¶ 3). After the parties made their sentencing arguments, the circuit court imposed a 10-year sentence, consisting of six years of initial confinement and four years of extended supervision.

    The defendant retained a different attorney and pursued postconviction relief in the circuit court, claiming that the state had breached the plea agreement. He argued that the prosecutor’s statements as described above implicitly but clearly conveyed to the court that the PSI report’s sentencing recommendation was too low and that this was a breach of the plea agreement’s prohibition against recommending a particular sentence. At the evidentiary hearing on this motion, the defendant’s original counsel explained that he did not object to the prosecutor’s remarks because he did not believe that they violated the plea agreement. The circuit court denied the motion.

    In a decision authored by Judge Brennan, the court of appeals affirmed. Because trial counsel’s failure to object to the state’s remarks at the sentencing hearing caused the defendant to forfeit his right to direct review of the alleged breach of the plea agreement, the appellate court reviewed the defendant’s claim using an ineffective-assistance-of-counsel approach. The court viewed the issue as whether the prosecutor’s comments at sentencing deprived the defendant of the benefit he bargained for – a prison term recommendation (see ¶ 8). It concluded that they did not. Said the court, “The prosecutor honored the plea agreement by: (1) recommending prison; (2) never giving his opinion as to the length of the sentence; (3) never implying that he agreed with the PSI report’s recommended sentence length, or that he sought a longer sentence than the PSI report recommended; (4) giving the background information that he was duty-bound to provide; and (5) concluding his remarks with a neutral request that the court consider all the factors” (¶ 10).

    The court rejected the defendant’s contention that the prosecutor’s remarks implicitly conveyed to the judge that the PSI report’s sentencing recommendation was too low. “[T]here is nothing in the prosecutor’s remarks that indicates he was backing away from the terms of the plea agreement. In this case, the prosecutor merely recited those facts set forth in the PSI report, which the court already had before it and had referred to. In his remarks, the prosecutor did not implicitly or explicitly suggest that the court should adopt the PSI report’s sentencing recommendation or that the PSI report’s sentencing recommendation was too lenient” (¶ 15). Accordingly, the court concluded that the state did not breach the plea agreement and that trial counsel was not ineffective for failing to object to the state’s sentencing recommendation.

    Stop and Frisk – Terry Frisk of Vehicle – Gant Inapplicable to Vehicle Frisks

    State v. Williams, 2010 WI App 39 (filed 5 Jan. 2010) (ordered published 31 March 2010)

    In Michigan v. Long, 463 U.S. 1032 (1983), the U.S. Supreme Court expanded the law of frisks under Terry v. Ohio, 392 U.S. 1 (1968), and held that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. The Wisconsin Supreme Court adopted Long’s approval of protective searches of vehicle passenger compartments in State v. Moretto, 144 Wis. 2d 171, 423 N.W.2d 841 (1988).

    In this case, while police officers were investigating the absence of a registration plate on a parked and occupied vehicle, they developed reasonable suspicion that the defendant (seated in the driver’s seat) had placed a gun under the center console of the vehicle. The officers had the defendant exit the vehicle, and one of them then secured the defendant in the back seat of the squad car. Meanwhile, the other officer examined the area under the console and recovered a loaded firearm and packets of cocaine. In the criminal prosecution that followed, the defendant moved to suppress the evidence recovered from the vehicle. The circuit court denied the motion and, following a jury trial, the defendant was convicted of being a felon in possession of a firearm.

    On appeal the defendant argued that the circuit court should have suppressed the physical evidence recovered from the vehicle because the search that led to its recovery violated Arizona v. Gant, 129 S. Ct. 1710 (2009). The state responded that “this case is distinguishable from Gant because the search here was: (1) not incident to arrest; and, (2) was properly based on a Terry articulable suspicion of dangerousness, i.e. the presence of a weapon under the console” (¶ 12).

    The court of appeals agreed with the state. Writing for the court, Judge Brennan concluded that the inspection of the interior of the defendant’s vehicle was justified as a protective search under Terry because the police “had a reasonable suspicion that Williams was dangerous and might gain immediate control of the weapon if returned to his vehicle” (¶ 25). Gant does not apply in this case because “Gant is limited to the search incident to arrest exception” to the warrant requirement (¶ 24). The vehicle inspection in this case was not performed as a search incident to arrest; at the time of the search the defendant had not been arrested.

    Consecutive Sentences – Sentence Credit in Wisconsin When Defendant on Parole Hold in Illinois

    State v. Brown, 2010 WI App 43 (filed 17 Feb. 2010) (ordered published 31 March 2010)

    Brown was on a parole hold from Illinois when Wisconsin confined him and brought criminal charges. Because Brown could not post bail, he spent 285 days in a Kenosha County jail before the Kenosha County Circuit Court sentenced him to two years of confinement to be served “[c]onsecutive to any previously imposed sentence.” The circuit court refused to grant any sentence credit for the 285 days of presentence confinement because Brown did not have anything in writing stating that Illinois would not grant him credit for the time he was confined in Wisconsin.

    Brown then filed a postconviction motion requesting sentence credit for the 285 days. The Kenosha County Circuit Court again denied Brown’s request on the ground that Brown might end up getting “double credit” from Illinois and Brown did not have documentation from Illinois to definitively prove otherwise. Brown then appealed to the court of appeals.

    In a decision authored by Chief Judge Brown, the court of appeals reversed the orders of the circuit court. “The only issue on appeal is whether Brown should be granted 285 days of sentence credit in Wisconsin when no one knows what, if anything, Illinois will do with Brown’s parole hold” (¶ 4). It concluded that “Brown is due the benefit of the credit earned and that the credit must be granted in Wisconsin. If we were to conclude otherwise Brown might end up receiving no credit anywhere. He would have spent 285 days in confinement in addition to the sentence imposed” (¶ 10).

    The court further concluded that the issue of double credit is not yet ripe and may never be. “The ‘double credit’ issue would be ripe for consideration only if and when Illinois revoked Brown’s parole, and then, the issue would be for Illinois to resolve, not the Wisconsin court. And should that time ever arrive, we are confident that the Illinois prosecutor will look at the facts in our case, figure out how many days in prison Brown actually shaved from his prison term as a result of this appeal, and adhere to the Illinois precedent we cited above to deny double credit for that particular period of time” (id.).

    “Critical Stage” – Effective Assistance of Counsel

    State v. Carter, 2010 WI App 37 (filed 17 Feb. 2010) (ordered published 31 March 2010)

    The defendant was convicted of being a felon in possession of a firearm and of disorderly conduct. At trial, the judge permitted a witness to be impeached with testimony the witness had given at an ex parte hearing.

    The court of appeals reversed the conviction in an opinion written by Judge Curley. The ex parte hearing occurred when a key witness for the state was returned to court on a body attachment that had been issued when she failed to appear on an earlier trial date (see ¶ 5). Although the defendant was not present at this hearing, the circuit court nonetheless questioned the witness under oath about the underlying incident. At trial, the prosecutor impeached the witness with the testimony she had given at this hearing. The court held that the earlier hearing was a “critical stage” of the prosecution at which the defendant was entitled to be present and cross-examine the witness. It rejected the state’s contention that any error was harmless.

    The court also found, however, that the defendant’s trial counsel was not ineffective for failing to object to testimony that the defendant “was known to carry firearms” (¶ 31). The testimony was admissible as other-acts evidence (see ¶¶ 33-38).

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    Employment Law

    At-will Employees – Benefits

    Phillips v. U.S. Bank, 2010 WI App 35 (filed 2 Feb. 2010) (ordered published 31 March 2010)

    Phillips worked for U.S. Bank from 1998 until she was fired in 2007. This lawsuit relates to benefits she claims were unlawfully denied her. The circuit court granted summary judgment in favor of the bank.

    The court of appeals reversed in an opinion written by Judge Fine. The court reversed because, in summary, “(1) contrary to the circuit court’s ruling, an at-will employee does not forfeit benefits that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee’s continued employment if the employer fires the employee solely to prevent the employee from getting the accrued benefits; and (2) there are genuine issues of material fact whether the reasons U.S. Bank gave for firing Phillips were pretextual” (¶ 1).

    As to the first point, the parties agreed “that an at-will employee like Phillips can be fired for any reason as long as the reason does not implicate a status protected by law. That does not mean, however, that an at-will employee may be deprived of benefits that accrued before he or she was let go if the firing was to prevent payment of those benefits. Although there is no Wisconsin decision on this precise issue, the law applicable to the principal/agent relationship is directly analogous and applies here. Thus, we have previously recognized the rule as formulated by Restatement (Second) of Agency § 454 (1958): ‘An agent to whom the principal has made a revocable offer of compensation if he accomplishes a specified result is entitled to the promised amount if the principal, in order to avoid payment of it, revokes the offer and thereafter the result is accomplished as the result of the agent’s prior efforts’” (¶ 7). The bank was obligated to act in good faith. “Here, U.S. Bank contracted to pay employees benefits under the Plan so long as the employees fulfilled the Plan’s prerequisites and were employed when payment of those benefits were due. As we have seen, U.S. Bank does not contest that Phillips fulfilled the Plan requirements. Under [case law] U.S. Bank cannot avoid paying Phillips benefits that accrued under the Plan if it fired her in order to not pay her. Since, as we have seen, there is a genuine issue of material fact whether the excuse recounted in Isaacson’s affidavit was a pretext, we reverse the circuit court’s order granting summary judgment” (¶ 8).

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    Evidence

    Hearsay – Dying Declarations – Prior Inconsistent Statements

    State v. Beauchamp, 2010 WI App 42 (filed 2 Feb. 2010) (ordered published 31 March 2010)

    The defendant was convicted of first-degree intentional homicide. At the jury trial the state introduced statements, identifying the defendant as the shooter, that the victim made to an emergency medical technician and a police officer while he was being transported to the hospital for treatment. The defendant appealed, objecting to the admission into evidence of these and other statements.

    The court of appeals affirmed in an opinion authored by Judge Fine. The court first held that the victim’s statements were properly admitted as dying declarations under Wis. Stat section 908.045(3). “In light of the circumstances surrounding Somerville’s injuries, his frantic concern that he not die as expressed to Coleman, his being upset when the ambulance passed one hospital on its way to another, and his significant pain and breathing difficulties, coupled with his spontaneous repeated assertions as to who shot him, the trial court did not erroneously exercise its discretion in ruling that Somerville’s fingerings of Beauchamp as his shooter were dying declarations under Wis. Stat. Rule 908.045(3) irrespective of whether Somerville implicated Beauchamp before or after he may have heard the physician’s assessment of the blood analysis. Indeed, Beauchamp’s trial lawyer conceded that it was ‘clear that he [Somerville] could have believed he was going to die’” (¶ 9). Nor did the use of this evidence violate the defendant’s confrontation right. The court relied on “binding” language in Supreme Court decisions that recognized dying declarations as exceptions to the Crawford rule, which otherwise requires the state to produce the declarant to testify or, absent that, show that the defendant had a prior opportunity to cross-examine an unavailable declarant. See Crawford v. Washington, 541 U.S. 36 (2004).

    Second, the circuit court properly admitted prior inconsistent statements made by several witnesses. On appeal, the defendant essentially conceded that these statements were properly admitted under evidentiary rules but contended that his trial lawyer was ineffective for failing to object based on language in an oft-ignored Seventh Circuit case, Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982). “We have found no published Wisconsin appellate decision that even cites Vogel, no less adopts its five guideline factors. Thus, the trial court was not bound by the Vogel guidelines, and, of course, neither are we” (¶ 17).

    Business Records – Qualified Custodian

    Palisades Collection LLC v. Kalal, 2010 WI App 38 (filed 4 Feb. 2010) (ordered published 31 March 2010)

    Kalal was sued on the ground that she failed to pay her credit card bill, which carried a balance of more than $27,000. The credit card issuer, Chase, had assigned the debt to Palisades, a collection company, which requested summary judgment. “In support of its motion for summary judgment, Palisades submitted the affidavit of Marie Oliphant, who averred she was ‘a duly authorized representative of [Palisades], the owner of this account through purchase.’ In addition, Oliphant averred that the attached documents were ‘a true and correct copy of the credit card statements that were mailed to Jackie C. Kalal on a monthly basis.’ Each of the attached five pages is entitled ‘Chase Mastercard Account Summary,’ identifies Jackie Kalal as the cardholder, and states amounts due for the time periods identified. Oliphant averred that ‘there remains a balance outstanding as of February 26, 2007, in the amount of $27,343.47, plus costs and disbursements.’ With respect to the attached account statements,
    Oliphant further averred: ‘[I]n my capacity as authorized representative, I have control over and access to records regarding the account of the above referenced Defendant(s), further, the original owner maintained records pertaining to its business; that the records were prepared in the ordinary course of business, at or near the time of the transaction or event, by a person with knowledge of the event or transaction, that such records are kept in the ordinary course of the original creditor’s business and that of the Plaintiff; and that based upon my review of the business records of the original creditor, I have personally inspected said account and statements regarding the balance due on said account’” (¶¶ 4-5). The circuit court accepted the affidavit and awarded summary judgment in favor of Palisades.

    The court of appeals reversed in an opinion written by Judge Vergeront. The bottom line was that the affiant, Oliphant, was not qualified by personal knowledge to testify about how the credit card records were compiled or kept by Chase. Her status as the records’ “present custodian” was not sufficient for her to testify “that the records (1) were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) that this was done in the course of a regularly conducted activity” (¶ 20). “Turning to Oliphant’s affidavit, we conclude it presents no facts that show she has personal knowledge of how the account statements were prepared and whether they were prepared in the ordinary course of Chase’s business. The averment that she, as a representative of Palisades, now has control over the records of Jackie Kalal’s accounts and has ‘personally inspected said account and statements regarding the balance due,’ does not reasonably imply that she has personal knowledge of how Chase prepared the account statements. The averment repeating the substance of Wis. Stat. § 908.03(6) does not suffice in the absence of an averment that she holds or has held a position from which one could reasonably infer that she has some basis for personal knowledge of how Chase prepared the accounts. Because the affidavit does not set forth facts that would make the account statements admissible in evidence, the averment in the affidavit on the balance due is not admissible. Nothing in the affidavit shows that Oliphant has personal knowledge of the amount owed if the account statements are inadmissible to prove the amount” (¶ 23).

    Video Statement – Replays – Read-backs

    State v. Marinez, 2010 WI App 34 (filed 25 Feb. 2010) (ordered published 31 March 2010)

    A jury convicted the defendant of sexually assaulting a child under age 13. As key evidence, the prosecutor presented a video statement made by the child, which was admitted as evidence pursuant to Wis. Stat. section 908.08. During closing argument, the prosecutor replayed a part of the video statement. The defense made no objection.

    The court of appeals affirmed the conviction in an opinion written by Judge Vergeront. On appeal the defendant contended that his trial counsel was ineffective for failing to object to the video replay. The court held that “[section] 908.08 does not prohibit playing at closing argument a child’s video statement properly admitted at trial. Accordingly, defense counsel did not perform deficiently in failing to object on this ground” (¶ 20). Nothing in prior case law “suggests that, because the video statement is testimony, it cannot be played during closing argument” (¶ 19). Nor did the video replay violate the defendant’s due process right. The court distinguished Wisconsin case law relating to exhibits viewed during deliberations in the jury room as well as an Illinois case that provided only “questionable” guidance (see ¶ 28). “Our own research has not yielded a case from another jurisdiction holding that use of video statements at closing violates the due process clause – either as a general proposition or in the particular case. On the other hand, we have located a number of cases from other jurisdictions that … commit the decision to the circuit court’s discretion” (¶ 29). “[W]hile the potential power of playing video statements at closing argument requires caution in their use, it does not warrant a wholesale prohibition of use in this context. The court’s discretion in controlling closing argument is sufficient to protect defendants against unfair uses in a particular case. The circuit court may control the length of the portions played in closing argument, both to avoid unduly long closing argument and to prevent an undue emphasis on the recorded testimony over the in-court testimony. In addition, the court may control the selection of portions of a recorded statement to avoid misrepresentation” (¶ 31).

    A second issue concerned defense counsel’s failure to request a “read-back” of the victim’s testimony when the jury asked for a portion of her testimony. “We conclude defense counsel made a reasonable strategic decision in asking the court to instruct the jury to rely on its collective memory. The specific questions the jury referenced had, overall, answers that were inculpatory to Marinez. Defense counsel could reasonably decide that the jury’s request meant it wasn’t sure how A.M. had answered these questions and could decide it would be to Marinez’s disadvantage to have the answers read…. Defense counsel could reasonably decide that, even if the court would allow A.M.’s entire testimony to be read, which would include the last two favorable answers, that would not outweigh the disadvantage of hearing the unfavorable answers. Thus, it was a reasonable strategy to propose that the court instruct the jury to rely on its collective memory” (¶ 37).

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