Supreme Court Digest

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

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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.

Criminal law

Armed Robbery - Element of Asportation

State v. Johnson, No. 95-0072-CR (filed 4 Feb. 1997)

The victim was sitting in his car on the street in front of his home when the defendant approached him armed with a handgun. The defendant ordered the victim out of the car and the victim complied, leaving his keys in the ignition. The defendant then entered the auto, sitting in the driver's seat. It is not clear exactly what happened next, but the car either stalled, shut off or would not start. In any case, the car did not move and the defendant exited it. He was later arrested.

On these facts the question before the Wisconsin Supreme Court was whether the defendant should be permitted to withdraw his guilty plea to the crime of armed robbery. As it relates to the substantive criminal law, the sole issue was whether a person may be convicted of armed robbery when the property at issue is an automobile and the person does not move the automobile.

A unanimous supreme court, in a decision authored by Justice Bablitch, held that a person may not be convicted of armed robbery when the property at issue is an automobile and the person does not move the vehicle. On the facts as described above, the defendant should not have been convicted of armed robbery, even if the conviction happened as a result of a guilty plea. Accordingly, the conviction was reversed and the matter remanded to the circuit court to allow the defendant to withdraw his guilty plea.

Although not specifically stated in the robbery statute (Wis. Stat. 943.32), asportation has been an element of this offense since the supreme court's decision in Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972). In this case the supreme court declined to alter the interpretation of the robbery statute developed in Moore and found that the requirement that the property be moved, even slightly, provides a bright-line test for lower courts to follow and creates an easily identifiable distinction between attempted robbery and robbery. The supreme court further declined the state's invitation to create an "automobile exception" that would permit a conviction for robbery when the defendant enters a vehicle after forcing the owner to leave but thereafter never moves the automobile.

Bail Jumping - Consumption of Alcohol
as a Violation of Bond Conditions - Impact
of Wis. Stat. section 51.45(1)

State ex rel. Jacobus v. State, No. 94-2995 (filed 28 Feb. 1997)

The defendant was released on bail and a condition of his bond was that he not consume alcohol. The district attorney subsequently brought a bail jumping charge against the defendant under section 946.49 of the Wisconsin Statutes because the defendant allegedly consumed alcohol while he was out on bail.

The issue before the supreme court was whether the provisions of section 51.45(1) of the Wisconsin Statutes prohibit the state from prosecuting an individual for bail jumping when the alleged violation of the conditions of his or her bond is the consumption of alcohol. This issue arose because section 51.45(1) provides that "it is the policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcohol beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society."

In a unanimous decision authored by Justice Crooks, the supreme court concluded that section 51.45(1) does not prohibit the state from criminally prosecuting an individual under the bail jumping statute due to consumption of alcohol in violation of a bond condition. The legislative history of the relevant portions of chapter 51 supports this conclusion; it reflects that the Legislature only intended to prohibit the prosecution of individuals for public drunkenness - not for other offenses. Said the court, when the state prosecutes an individual for bail jumping due to consumption of alcohol in violation of a condition of a bond, the state is prosecuting the individual for failing to comply with the bond condition. It is not prosecuting the individual for public drunkenness or the consumption of alcohol.

Criminal procedure

Ineffective Assistance of Counsel - Failure to Object
to Prosecutor's Breach of Plea Agreement

State v. Smith, Nos. 94-3364-CR, 94-3365-CR, 94-3366-CR, and 94-3367-CR (filed 6 Feb. 1997)

The defendant was convicted on a combination of guilty and no contest pleas of one felony and several misdemeanors. His pleas were entered pursuant to a plea negotiation in which the district attorney agreed to make no sentencing recommendation. However, at the sentencing hearing, the district attorney recommended that the defendant be sentenced to a substantial prison term (58 months). The court sentenced the defendant to six years on the felony and to concurrent shorter sentences on the misdemeanors.

The defendant sought resentencing on grounds that his attorney provided ineffective assistance of counsel by failing to object at the sentencing hearing when the prosecutor breached the plea agreement. The supreme court, in a unanimous decision authored by Justice Geske, agreed and remanded the case for a new sentencing hearing.

The supreme court concluded that the prosecutor did, in fact, breach the plea agreement to make no sentencing recommendation. With respect to the claim that defense counsel was ineffective, the court used the test for ineffective assistance promulgated by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which test has two components as to which the defendant has the burden of proof: 1) a demonstration that counsel's performance was deficient; and 2) a demonstration that such deficient performance prejudiced the defendant.

Applying the first prong of the Strickland analysis, the supreme court concluded that the defense attorney's failure to immediately object to the prosecutor's sentence recommendation - a recommendation that clearly breached the plea agreement - was not reasonable conduct within professional norms and constituted deficient performance. With regard to prejudice, the court concluded that, when a prosecutor agrees to make no sentence recommendation but then recommends a significant prison term, such conduct is a material and substantial breach of the plea agreement and is a "manifest injustice" always resulting in prejudice to the defendant.

The court said the breach of a material and substantial term of a plea agreement by the prosecutor deprives the defendant of a sentencing proceeding which result is fair and reliable. This conclusion precluded any need on the part of the court to consider what the sentencing judge would have done if defense counsel had objected to the breach by the district attorney. Rather, the conclusion of prejudice was premised on the rule of Santobello v. New York, 404 U.S. 257 (1971), that when a negotiated plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled.

In sum, the court concluded that the defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. Thus, there is no need at this juncture to remand for a determination of the ineffectiveness of counsel. Instead, the court granted the defendant's request for a new sentencing hearing conducted in accordance with the terms of the plea agreement.

Torts

Parental Liability Statute - Sexual Contact -
Multiple Acts - Damage Findings

N.E.M. v. Strigel, No. 95-0755 (filed 21 Feb. 1997)

A civil jury found that Scott, a 15-year-old boy, had sexual contact with N.E.M., a 10-year-old girl, on 20 occasions. The jury further determined that Scott's behavior was "willful and wanton" and that N.E.M. should receive $35,000 for pain and suffering and $10,000 in punitive damages. The jury awarded N.E.M.'s parents more than $8,000 for various expenses. The trial judge ruled that the parental liability statute, section 895.035(4) of the Wisconsin Statutes (1993-94), limited the liability of Scott's parents to $2,500 for all 20 incidents. The court of appeals reversed, concluding that the statute's $2,500 cap applied to each incident; thus, Scott's parents were liable for up to $50,000 (20 x $2,500).

The supreme court, in an opinion written by Justice Wilcox, affirmed. The court agreed that section 895.035(4) limited the parents' liability to $2,500 for each of the 20 sexual contacts. In determining whether the child's conduct involved a single continuing act or multiple separate acts, courts are to examine the surrounding circumstances. Three factors are of "particular importance" in distinguishing one act from multiple acts: "(1) whether a sufficient period of time separates the conduct, (2) whether the conduct occurred at different locations, and (3) whether there is a distinct difference in the nature of the conduct."

The supreme court also held that in this case the jury was not required to make separate damage determinations for each act of sexual conduct. Where the damages are "primarily psychological and emotional," such a requirement adds "unnecessary complexity to an already difficult question." In other cases where the damage by each act is distinct, the jury should make a separate determination.