Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Appeals | Civil Procedure
| Contracts |
| Criminal Evidence | Criminal
Procedure |
| Employment Law | Insurance
| Mobile Homes |
| Motor Vehicle Law | Municipal
Law |
| Sexual Predators | Torts
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Appeals
Judicial Substitutions - Entry of Order and Judgments
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Proper County
State v. Williams,
No. 98-3338-CR (filed 11 Aug. 1999) (ordered published 28 Sept.
1999)
A criminal prosecution was commenced against the defendant
in Racine County but it was assigned to a Kenosha County judge
when a substitution was filed. The state filed a notice of appeal
on Nov. 13 from an order on Sept. 28 granting a new trial. The
court of appeals raised a question about when the Sept. 28 decision
was entered.
In a per curiam opinion, the court held that "when a
judge from a different county is assigned to a case in response
to a substitution request, orders and judgments of the assigned
judge must be entered in the office of the clerk of circuit court
in which the action was originally filed in order to commence
the applicable appeal period under sec.
808.04, Stats." Put another way, "[p]ossession
by the assigned judge's in-county clerk does not constitute
filing and entry for appeal purposes."
In this case the state had the burden of proving that its
notice of appeal was timely. By failing to show when the Racine
County clerk came into possession of the Sept. 28 decision, the
state left the appellate court in an "evidentiary vacuum"
warranting dismissal of the appeal.
Civil Procedure
Intervention - Requirements of Wis. Stat. section 803.09(1)
Wolff v. Town of
Jamestown, No. 98-2974 (filed 22 July 1999) (ordered
published 28 Sept. 1999)
The Wolffs sought to develop for residential use a rugged
tract of land overlooking the Mississippi River in the town of
Jamestown in Grant County. The land has no direct highway access
from Wisconsin, but can be reached only via a circuitous route
south into Illinois. The land is currently zoned A-2, which permits
primarily agricultural uses. To develop the land as they wished,
the Wolffs had to obtain a conditional use permit from the county,
which has zoning authority over the property by virtue of the
town's approval of the county zoning ordinance. The town
nevertheless retained substantial responsibility for the well-being
of its residents and the property within its boundaries.
The town consistently opposed the Wolffs' development
proposal on the grounds that it would be difficult to reach the
property in order to provide necessary services, such as fire
protection, ambulance service, and bus transportation for school
children. The Wolffs' application for a conditional use
permit was initially approved by the county planning and zoning
committee. The town appealed that approval to the Grant County
Board of Adjustment and the board ultimately denied the Wolffs'
application. The Wolffs then filed suit in circuit court, seeking
certiorari review of the board's decision and a writ of
mandamus compelling the board to approve the application.
The town moved to intervene in the Wolffs' suit. The
circuit court denied the motion on the grounds that the town's
interests were adequately represented by the county, which was
already a party to the suit. The town appealed.
The sole issue before the court of appeals was whether the
town was entitled by right to participate as a party in the litigation.
In a decision authored by Judge Deininger, the court of appeals
answered in the affirmative.
The Wisconsin Rules of Civil Procedure permit an outsider
with an interest in a lawsuit to intervene and participate as
a party to the suit. Section
803.09(1) of the Wisconsin Statutes provides that an outsider
has a right to intervene when four conditions are met: 1) the
potential intervenor makes a timely motion to intervene; 2) the
potential intervenor claims an interest in the property or transaction
that is the subject of the suit; 3) the disposition of the suit
may, as a practical matter, impair or impede the potential intervenor's
ability to protect that interest; and 4) the potential intervenor's
interest is not adequately represented by one or more parties
to the suit.
In this case the appellate court concluded: 1) the town's
motion to intervene was timely; 2) the town has a legally protected
interest in that it has a statutory right to challenge the board
of adjustment decision via an action in certiorari and, further,
the town has a substantial interest in the well-being of the
residents and property located within its boundaries; 3) the
town has already prevailed before the board of adjustment and
its victory is now being attacked in this action, thereby giving
the town an interest in a lawsuit the disposition of which could
impair or impede the town's ability to protect its interest;
and 4) though the town and county are not wholly adverse parties,
the town may have more at stake than the county should the Wolffs
secure a reversal of the board of adjustment decision. Accordingly,
the town met all of the requirements of the statute cited above
and was entitled by right to intervene in the Wolffs' suit
against the county.
Contracts
Alterations - Duty to Read - Contract Reformation
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Attorney as Witness
Hennig v. Ahearn,
No. 98-2319 (filed 26 Aug.1999) (ordered published 28 Sept. 1999)
Hennig brought claims against his former employer, Heartland
Development Corporation, alleging misrepresentation and seeking
contract reformation. While negotiating Hennig's executive
compensation contract, Heartland's president, Ahearn, allegedly
altered a critical provision at the last minute but failed to
point out the change. The trial court ruled that Ahearn had no
duty to disclose the change and that Hennig's negligence
barred the claims as a matter of law.
The court of appeals, in an opinion written by Judge Deininger,
reversed. The opinion carefully analyzes the law and closely
scrutinizes the record in some detail. Only a summary of the
court's conclusions are presented. As to the misrepresentation
claim, the court first determined that Ahearn had a duty to disclose
the last minute change. There was sufficient evidence in the
record from which "a jury could find that Ahearn made the
last-minute change in the compensation arrangement hoping that
Hennig would not notice it, and that Hennig would thereby sign
an agreement that Hennig would not have knowingly accepted."
Second, as to the issue of justifiable reliance, the evidence
raised a question of fact for the jury, which could conclude
that the change was "not obvious," consisting of "nine
words inserted in the middle of a paragraph-long, multi-part
definition."
Second, the trial court erred in concluding that contract
reformation was not appropriate. Hennig "established a basis
for his reformation claim by presenting evidence of his unilateral
mistake and Ahearn's possibly fraudulent or inequitable
conduct." The court of appeals set forth the elements of
a contract reformation claim, the evidentiary burden, and its
assessment of the record.
The court also addressed several evidentiary issues. Most
importantly, error occurred when the trial judge barred Hennig's
attorney from testifying about the status of the negotiations
and his reasons for reviewing only selected portions of the final
contract draft. The court analyzed the attorney's testimony
as a "lay opinion" under section
907.01. The opinion also addressed the permissible scope
of expert testimony offered by another attorney regarding customary
business practices.
Criminal Evidence
Other Acts - Rule of Completeness - Defendant's
Statements
State v. Anderson,
No. 98-3639 (filed 19 Aug. 1999) (ordered published 28 Sept.
1999)
The court of appeals, in an opinion written by Judge Vergeront,
affirmed the defendant's conviction for first-degree intentional
homicide. The defendant murdered a woman following a quarrel
over cocaine. On appeal, the defendant raised two evidentiary
issues.
First, the court of appeals, in an opinion written by Judge
Brown, found no abuse of discretion in the admission of other
acts evidence under section
904.04(2). Applying the framework set forth in State
v. Sullivan (1998), the court addressed the use of other
acts evidence (a prior sexual assault) for the purpose of providing
"context." The context related to the defendant's
statement, "a dead bitch can't say anything."
Assessed in light of the defendant's prior sexual assault
conviction, the statement established "his motive to stay
out of prison and his intent to kill Boshears so she could not
testify against him."
The second issue concerned the application of the doctrine
of completeness. The state introduced parts of the defendant's
statements to a detective as admissions by a party opponent.
The trial court, however, refused to permit the defendant to
introduce other parts of his statement during cross-examination
of the detective. The state argued that such an examination would
permit the defendant to testify "by the back door"
without ever taking the witness stand.
The court of appeals ruled that this constituted an abuse
of discretion and evidentiary error. Certain statements in the
detective's report were necessary under the doctrine of
completeness whether or not the defendant testified. After extensively
discussing the case law, the court held that "when a defendant
in a criminal case objects to testimony of his out-of-court statement
as incomplete, or attempts to cross-examine the witness on additional
portions of the defendant's out-of-court statement and the
state objects, the court should make the two-part discretionary
determination required by [State v. Eugenio] without regard
to whether the defendant intends to testify. Once the court has
determined that any additional portion of the statement is necessary
under the Eugenio standard, it must permit the presentation
of that additional portion, although the timing of that presentation
is discretionary: it may occur during the state's case or
when the defense recalls the witness during its case." On
this record, the detective's testimony presented a misleading
view of what the defendant said about his role in the murder.
The court cautioned, however, that the defendant is not entitled
to introduce all relevant statements about his role; rather,
only those statements necessary to correct the misleading view
are admissible. (In the final part of the opinion, the court
found the error to be harmless.)
Criminal Procedure
Involuntary Intoxication - Prescription Medication -
Experts - Armed Burglary
State v. Gardner,
No. 98-2655-CR (filed 11 Aug. 1999) (ordered published 28 Sept.
1999)
The court of appeals, in an opinion written by Judge Brown,
affirmed the defendant's convictions for armed burglary,
sexual assault, and false imprisonment. The victim was his estranged
wife. The defendant raised two lines of argument.
First, he contended that the trial court erroneously excluded
expert testimony offered to establish an involuntary intoxication
defense. Addressing an issue heretofore unresolved in Wisconsin,
the court held that the involuntary intoxication defense is available
where the defendant was taking prescription medication. (Under
Wisconsin law, involuntary intoxication must render the defendant
incapable of judging right from wrong.) The court adopted the
standard employed by Texas courts, which limits the involuntary
intoxication defense to "(1) the defendant's unawareness
of what the intoxicating substance is; (2) force or duress; or
(3) medically prescribed drugs taken according to prescription."
(Emphasis original.) The defense is thus inapplicable "where
a patient knowingly takes more than the prescribed dosage, or
mixes a prescription medication with alcohol or other controlled
substance," or "voluntarily undertakes an activity
incompatible with the drug's side effects." The court
then examined the record, concluding that the defendant's
offer of proof failed to meet the standard. The expert's
"rambling theories" and speculations failed to "even
suggest that the amount of Paxil (a drug) Gardner was taking
could have rendered him incapable of distinguishing right from
wrong." For similar reasons, the defendant failed to raise
a jury issue that entitled him to an instruction on the involuntary
intoxication defense.
Second, the defendant argued that the state had to show some
nexus between the burglary (entering his wife's home without
consent) and the weapon he was carrying (the knife). Relying
on a 1997 case, the court rebuffed the invitation. "For
armed burglary, the possession of the weapon while burglarizing
a home always has something to do with the crime."
Jury Selection - Defendant's Presence - Reversible
Error
State v. Harris,
No. 98-1091-CR (filed 10 Aug. 1999) (ordered published 28 Sept.
1999)
The court of appeals, in an opinion written by Judge Fine,
reversed the defendant's conviction for first-degree intentional
homicide. Error occurred when the trial judge began questioning
potential jurors before the defendant or his attorney were present.
Although "well-intentioned," the procedure essentially
handed the defendant a "pig in the poke." Since the
state failed to show that the judge's conduct did not adversely
affect the defendant's rights under section
971.04(1)(c) of the Wisconsin Statutes, there was a failure
to show that the error was harmless beyond a reasonable doubt.
Search and Seizure - Curtilage - Odor of Burning
Marijuana -
Probable Cause
State v. Wilson,
No. 98-3131-CR (filed 2 June 1999) (ordered published 17 Aug.
1999)
A police officer went to the defendant's home looking
for a female juvenile for whom he had an arrest warrant. He believed
the juvenile might be at the defendant's home because of
a past association between the two. As the officer approached
the home, he observed children playing in the backyard. Though
the defendant and his girlfriend claimed that they had instructed
this officer to use the front door when visiting their home,
the officer nevertheless walked into the backyard. There he asked
a young girl whether she had seen the juvenile for whom he had
the warrant and, when the girl denied having seen the juvenile
that day, the officer asked the girl if her parents were home.
The officer followed the child to the back door of the residence
and claimed to be able to smell the odor of burning marijuana
from just outside the house. The officer thereafter entered the
inside landing of the premises and from that location could smell
the odor of burning marijuana emanating from the basement. Almost
immediately thereafter the defendant approached the officer from
the basement and, after inquiring about the juvenile's whereabouts,
the officer asked the defendant about the marijuana odor. The
defendant responded by stating that he had to use the bathroom,
whereupon the officer advised him that he could not go until
he was searched. This exchange between the two was repeated and,
in an ensuing search of the defendant's pocket, the officer
found marijuana.
The defendant was then placed under arrest for possession
of a controlled substance. After conviction on this charge he
appealed a circuit court order denying his motion to suppress
evidence. He claimed that the officer's unlawful invasion
of his home's curtilage and the subsequent unlawful search
of his person tainted both the physical evidence seized and the
statements he made following arrest.
In a decision authored by Judge Myse, the court of appeals
concluded that the officer unlawfully penetrated the curtilage
of the defendant's home. The curtilage is the area immediately
adjacent to the home to which a person extends the intimate activities
associated with the privacies of life. The appellate court reached
its conclusion not only because the officer was standing on the
pavement immediately adjoining the back entrance to the home,
but also because the nature and use of the defendant's property
demonstrate that the area where the officer was standing was
one of intimate activity and that there was a reasonable expectation
of privacy there. The state conceded that a backyard area where
children are playing is associated with the privacies of life.
In addition, the back door of a home is intimately related to
the home itself and to home activities because it provides access
and egress to the backyard and garage area. While there were
no apparent enclosures surrounding the home, the back door of
the home could not be seen from the front of the house or from
the street or sidewalk. While the rear door could perhaps be
seen from other areas outside the property, this itself does
not mean that there was no expectation of privacy.
Curtilage, said the court, is not to be defeated merely because
the subject area may be observed by some. In so stating the court
recognized that in a smaller urban community (in this case, Antigo),
it is not unusual for others to be able to see into the rear
yard of a home. Accordingly, the court concluded that the officer's
intrusion into this area at the rear of the home was without
legal authority and consequently his discovery of the marijuana
odor was without legal justification.
The court also concluded that the search of the defendant's
pocket resulting in the discovery of a baggie containing marijuana
was unlawful. It held that the defendant was effectively arrested
when the officer twice refused to allow him to leave to use the
bathroom. At that point in time, although the officer had identified
the odor of marijuana coming from the basement, he acknowledged
that several people could be heard in the basement and there
was no greater basis to believe that the defendant was the source
of the odor than any of the other individuals present in the
basement. Accordingly, the officer lacked probable cause to arrest
the defendant. The evidence obtained from the unlawful search
must accordingly be suppressed.
Restitution - General Damages - Special Damages
State v. Holmgren,
No. 98-3405-CR (filed 13 July 1999) (ordered published 17 Aug.
1999)
The defendant was convicted of felony theft and ordered to
pay restitution. All of the issues on appeal related to the restitution
order. Section
973.20(5)(a) of the Wisconsin Statutes provides that a restitution
order may require the defendant to "pay all special damages,
but not general damages, substantiated by evidence in the record,
which could be recovered in a civil action against the defendant
for his or her conduct in the commission of a crime considered
at sentencing." In this opinion the court of appeals addressed
the distinction between general damages and special damages.
General damages are those that necessarily result from the
injury regardless of its special character, the conditions under
which the injury occurred, or the plaintiff's circumstances.
Under the criminal restitution statute general damages are those
that compensate the victim for damages such as pain and suffering,
anguish, or humiliation. However, under the statute cited above,
a court is prohibited from ordering restitution for the victim's
general damages.
A court may nevertheless require a defendant to pay special
damages the victim sustains which are substantiated by evidence
in the record. As used in the criminal restitution context, special
damages encompass harm of a more material or pecuniary nature
and represent the victim's actual pecuniary losses. Any
readily ascertainable pecuniary expenditures paid out because
of the crime are appropriately classified as special damages.
Guilty Plea - Failure to Advise Defendant of
Jury Unanimity Requirement - Remedy
State v. Grant,
No. 98-2206-CR (filed 18 Aug. 1999) (ordered published 28 Sept.
1999)
The defendant waived his right to a jury trial and was found
guilty on several counts following a trial to the court. On appeal
he argued that he is entitled to a new trial because at the time
he waived his right to a jury trial, the trial court failed during
its colloquy with the defendant to advise him that a verdict
in a criminal jury trial must be unanimous.
In a decision authored by Judge Mueller (a circuit judge sitting
by special assignment pursuant to the Judicial Exchange Program),
the court of appeals concluded that, although the trial court
failed to properly advise the defendant of the jury unanimity
requirement, he is not thereby automatically entitled to a new
trial. Rather, the appropriate remedy is a post-conviction motion
pursuant to the procedures set forth in State v. Bangert,
131 Wis. 2d 246, 389 N.W.2d 12 (1986), to determine the defendant's
knowledge and understanding of the rights being waived.
Adapting Bangert to the situation posed in this case,
the defendant must first make a prima facie showing that the
jury waiver was defective and that he did not understand the
jury unanimity requirement. If he makes that showing, the burden
then shifts to the state to show by clear and convincing evidence
that the defendant in fact voluntarily and intelligently waived
his right to a jury trial. If the state fails to meet its burden
of proof, the conviction must be reversed because there is nothing
in the record to indicate that the defendant was in fact properly
apprised of his right to a unanimous jury verdict or that he
voluntarily and intelligently waived that right. If the state
does meet its burden, the facially defective record is overcome
by evidence showing that the defendant's constitutional
right to a jury trial was not violated because he understood
his right to jury unanimity and voluntarily waived that right.
As indicated above, the Bangert decision requires a
threshold allegation by the defendant that he did not know or
understand the rights at issue before he may be entitled to a
hearing on his claim. The defendant failed to make this allegation.
Accordingly, his post-conviction motion was deficient and was
properly denied by the trial court.
Trials - Defense Stipulation to Element of Offense
State v. Benoit,
No. 98-1531-CR (filed 28 July 1999) (ordered published 17 Aug.
1999)
The defendant was charged with burglary. Prior to trial, he
and his attorney stipulated on the record to the owner's
nonconsent, which is an element of the crime. At the conclusion
of the trial, the court instructed the jury on the elements of
burglary, including non-consent. The court further informed the
jury that the parties had stipulated to owner nonconsent and
that the jury must accept that fact as conclusively proven.
On appeal the defendant argued that the trial court erred
in concluding that he had received a jury trial on the element
of nonconsent. He argued that he should have been provided a
thorough colloquy ensuring a "voluntary, knowing, and intelligent
waiver" of his right to a jury trial on the nonconsent element.
In a decision authored by Judge Snyder, the court of appeals
disagreed with the defendant's position and affirmed the
conviction.
In deciding this case, the appellate court distinguished three
cases upon which the defendant relied. One was Kemp v. State,
61 Wis. 2d 125, 211 N.W.2d 793 (1973), wherein the defendant
waived jury and requested the court to decide the case from stipulated
facts. The Kemp court noted that the trial judge had very
carefully and thoroughly explained to the defendant all of his
rights, including the right and importance of a jury trial and
the effect of a jury waiver. In this case the appellate court
did not think that Kemp was controlling because, unlike
the defendant in Kemp, this defendant did not stipulate
to all of the facts in the case; rather, he merely waived his
right to challenge one issue - nonconsent. In its jury instructions,
the court advised the jury that the defendant had stipulated
to the nonconsent element and that the jury must view the facts
as conclusively proven. The court then instructed the jury on
the elements of burglary, including nonconsent. The jury then
made a complete and final determination of guilt based on the
evidence presented; the court played no role as factfinder.
The court also distinguished State v. Villarreal, 153
Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989). In that case, while
in the midst of the jury trial, Villarreal's attorney conceded
that there was no dispute concerning the dangerous weapon penalty
enhancer with which the defendant had been charged and therefore
stipulated that the dangerous weapon element should be removed
from jury consideration and be determined by the trial court.
In that situation the court of appeals concluded that only an
express personal jury waiver would permit the court to decide
an element of the charged offense. Unlike Villarreal,
the nonconsent element in the defendant's trial was not
passed on to the court; instead, it was merely conceded by the
defendant. Because the jury was instructed on all elements of
the crime, the defendant received a jury trial on each and every
element. His stipulation did not constitute a waiver of his right
to a jury trial and thus he did not need to make an express personal
waiver to render the stipulation valid.
Finally, the court considered the applicability of State v. Wallerman, 203
Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996). Wallerman
established a procedure for addressing a defendant's stipulation
to a criminal element for which the state wishes to introduce
"other acts" evidence. Because that situation was not
presented in the present case, the appellate court concluded
that the Wallerman methodology did not apply.
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