Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Criminal Law | Criminal Procedure
| Insurance | Torts |
Criminal Law
Obscenity - Vagueness/Overbreadth Challenges - Admissibility of
Telephone Surveys Regarding Community Standards - Selective
Prosecution
County of Kenosha v. C&S
Management Inc., No. 97-0642 (filed 22 Jan. 1999)
C&S Management (Crossroads) operates an adult bookstore in
Kenosha County along an interstate highway. It was charged with
violating a Kenosha County obscenity ordinance that tracks the
prohibitions in the state obscenity statute. See Wis. Stat. §
944.21. The parties to the appeal explicitly or by implication noted
that the constitutional challenges described below apply equally to both
the ordinance and the state statute. In a unanimous decision authored by
Justice Steinmetz, the supreme court first concluded that the laws in
question, which prohibit the sale of obscene material, do not violate
either the federal or Wisconsin constitutions when evaluated for
vagueness and overbreadth.
The court next considered whether the jury instructions given
defining obscenity were erroneous. In Miller v. California, 413
U.S. 15 (1973), the U.S. Supreme Court articulated a definition of
obscenity. Miller established the basic guidelines for the trier of fact
in its evaluation of obscenity as being: 1) whether the average person,
applying contemporary community standards, would find that the work,
taken as a whole, appeals to the prurient interest; 2) whether the work
depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and 3) whether the
work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
In this case the circuit court defined the Miller "prurient interest"
standard to mean material that "appeals generally to a shameful,
unhealthy, unwholesome, degrading . . . interest in sex." The underlined
words in the instruction represent an expansion of the "prurient
interest" definition developed in various U.S. Supreme Court cases. The
Wisconsin Supreme Court in this decision concluded that the addition of
these words to the jury instruction did not expand the definition to
encompass protected speech. The circuit court also expanded on Miller's
"serious value" definition by adding the word "genuinely" to it. Here
again the court concluded that the instruction as presented to the jury
was an accurate statement of the law.
Crossroads also contended that the express purpose and effect of the
county's prosecution against it was to discriminate against Crossroads
for exercising its right to free speech under the First Amendment and
its equivalent in the Wisconsin Constitution. At a minimum Crossroads
believed it was entitled to an evidentiary hearing on the matter and,
preferably, that the charges should have been dismissed because the
county engaged in selective and discriminatory prosecution.
The supreme court concluded that before Crossroads is entitled to a
full evidentiary hearing, it must first present a prima facie showing of
discriminatory prosecution. At a minimum this means that the defendant
must prove that he or she has been singled out for prosecution while
others similarly situated have not and that the prosecutor's
discriminatory selection was based on an impermissible consideration
such as race, religion, or the exercise of constitutional rights. The
court concluded that Crossroads failed to make the required showing
under either prong. With regard to the discriminatory effect prong, the
evidence showed that other bookstores in the area sold similar material
but were not prosecuted and thus Crossroads was not singled out for its
exercise of First Amendment rights. Nor did Crossroads adequately
establish a discriminatory purpose behind the district attorney's
decision to prosecute. The evidence showed that Crossroads was selected
for prosecution because most of its inventory violated the obscenity
ordinance and because the bookstore was prominently located along an
interstate highway at the entryway to the state.
The court concluded that Kenosha County engaged in what was an
appropriate use of selective prosecution in this case. The sexually
explicit nature of most of the material sold by Crossroads and its
prominent location along an interstate highway were legitimate
prosecutorial factors that may be considered in determining prosecution
priorities. Said the court, a prosecutor does not abuse his or her
discretion when he or she targets those businesses that most publicly
present their sexually explicit material.
Finally, the court considered whether the circuit judge erred by
excluding evidence offered by Crossroads as proof of community standards
under the Miller test. Specifically, Crossroads sought admission of a
telephone survey purporting to establish community standards in
Wisconsin with respect to sexually explicit materials. The circuit court
refused to admit the results of the survey believing they were not
relevant to the question of whether the specific videotape at issue in
this case was obscene and that the admission of the survey would tend to
confuse the jury. The supreme court concluded that the circuit court did
not erroneously exercise its discretion in reaching these conclusions.
In the opinion of the supreme court, the survey respondents were not
sufficiently apprised of the nature of the charged materials and thus
the responses to the poll were irrelevant to the issues involved in the
case. Said the court, the most serious problem in this survey and other
"abstract" surveys is that they do not describe with any verisimilitude
the sexual activities depicted in the video at issue and for which the
current prosecution is brought.
Criminal Procedure
Search Warrants - Search of Vehicle Parked on Target Premises -
Post-conviction Discovery by the Defense
State v. O'Brien, No.
96-3028-CR (filed 21 Jan. 1999)
The victim claimed that he had been sexually assaulted by the
defendant while staying overnight at the defendant's home. The
defendant's residence was a farmstead consisting of a two-story duplex,
a barn, an outbuilding, a small backyard, and two driveways. Police
obtained a search warrant authorizing a search of the premises occupied
by the defendant and described as "1618 Hawthorne Drive - brown in color
siding with white trim, two-family residence, specifically upper flat
with said residence having two driveways." The warrant authorized a
search for a pair of underpants and one pair of blue jeans that may
constitute evidence of a crime.
While executing the warrant, the officers first searched the upper
level of the duplex that was occupied by the defendant. When the pants
and underwear were not located in the residence, the officers extended
the search to buildings nearby. Approximately 200 feet from the home
they observed a truck registered to the defendant parked next to one of
the buildings. They searched the interior of the truck and recovered the
pants and underwear inside it.
One of the issues before the supreme court was whether the evidence
recovered from the truck should have been suppressed as the fruits of an
unlawful search. In a majority opinion authored by Justice Wilcox, the
court concluded that the search was lawful. In arriving at this
conclusion, the court applied the physical proximity test adopted in
State v. Andrews, 201 Wis. 2d
383, 549 N.W.2d 210 (1996). Under the physical proximity test, police
can search all items found on the premises that are plausible
repositories for objects named in the search warrant, except those worn
by or in the physical possession of persons whose search is not
authorized by the warrant, irrespective of the person's status in
relation to the premises. Under this test, the cornerstone of the Fourth
Amendment, the reasonableness of the search, remains.
The court concluded that the truck was a plausible repository for the
objects named in the search warrant, and because the vehicle was in
close proximity to the home, it held that the detectives' search of the
vehicle was reasonable.
The court also considered another issue in this case: whether and
under what circumstances the defense is entitled to post-conviction
discovery. It concluded that a defendant has a right to post-conviction
discovery but only when the sought-after evidence is consequential to
the case. This remedy will not be available where the evidence would not
create a reasonable probability of a different outcome. Said the court,
a party who seeks post-conviction discovery must first show that the
evidence is consequential to an issue in the case and, had the evidence
been discovered, the result of the proceeding would have been
different.
Justice Bradley filed a concurring opinion that was joined by Chief
Justice Abrahamson.
Confessions - Miranda - Burdens - Taint
State v. Armstrong, Nos. 97-0925-CR & 97-0926-CR (filed 21 Jan. 1999)
While incarcerated on unrelated offenses, police interrogated
Armstrong about a homicide. He made incriminating statements that were
used as the basis for a later homicide charge against him. Armstrong's
motion to suppress the statements was denied and he eventually pleaded
guilty to lesser offenses. Armstrong appealed and the court of appeals
certified the issues to the supreme court.
The supreme court, in an opinion written by Justice Crooks, affirmed
the conviction in an important decision that resolves several questions
regarding the law of confessions. First, the court held that the State
has the burden of establishing whether custodial interrogation occurred
under the Miranda rule. The holding cited the State's
responsibility "for creating the custodial situation" and its superior
access to the evidence. The standard of proof is the preponderance of
the evidence.
Second, the court held "that a person who is incarcerated is per se
in custody for purposes of Miranda. Thus, it was
inconsequential that Armstrong was jailed on unrelated offenses. When
police questioned him about the homicide he was in custody. Third, the
court determined that "interrogation" for Miranda purposes
occurred when police should have reasonably known that Armstrong was a
suspect in the homicide. Initially, police believed that Armstrong was
not a party to the offense but might have information. But as soon as he
placed himself in the store when the victim died, he had become a
suspect and police should have read Armstrong his Miranda
rights. Since they failed to do so, Armstrong's oral statements to
police were ordered suppressed.
Third, the court held that Armstrong's later written statement about
his involvement was admissible in evidence despite the earlier Miranda
violation. The supreme court overruled a part of State v. Ambrosia, 208 Wis.
2d 269 (Ct. App. 1997), and held that statements made subsequent to a
Miranda-defective interrogation (as occurred here) are
admissible if the later interrogation complied with Miranda and
the statements were "voluntary" within the meaning of the due process
clause, as set forth in Oregon v. Elstad, 470 U.S. 298 (1985).
Any error that involved the potential use of the
Miranda-defective statements was harmless and the conviction
was upheld.
Impeaching Jury Verdict - Competent Evidence - "Extraneous
Source"
State v. Broomfield, No.
97-0520-CR (filed 2 Feb. 1999)
The supreme court, in an opinion written by Justice Wilcox, affirmed
the defendant's conviction for burglary and operating without owner's
consent. On appeal the defendant alleged that he had been denied a fair
trial because prior to trial a juror had overheard others discussing the
defendant's "past alleged misconduct." The discussion stemmed from the
defendant's earlier trial on different charges that had resulted in an
acrimonious hung jury. Some jurors from the earlier case had found their
way onto the jury panel in this case, but those jurors were removed by a
combination of peremptory and "for cause" challenges.
The supreme court first applied the established analysis for
determining juror bias. The court held that there was no basis for
removing the particular juror for failing to reveal potentially
prejudicial information during voir dire. Given the questions asked
during the voir dire, the juror did not respond in an incorrect or
incomplete fashion.
The court found, however, that "extraneous prejudicial information"
had been improperly brought to the juror's attention. The juror obtained
the information from a "nonevidentiary source" and it was potentially
prejudicial. In sum, the evidence was competent to impeach the verdict
under Wis. Stat. section
906.06(2). It also constituted "clear, satisfactory, and convincing
evidence that the juror made or heard the statements or engaged in the
conduct alleged."
Finally, the court addressed whether the extraneous information
constituted prejudicial error requiring a reversal. The court held that
it did not: "Overhearing comments between two displeased panel members
is quite unlike a potential juror reading information in the newspaper
or hearing it on the news." The information carried "little indication
of untrustworthiness," the juror testified that he "shrugged it off,"
and the incriminating evidence against the defendant was
overwhelming.
Impeaching Verdict - Biased Juror - Inferred Bias
State v. Delgado, No.
96-2194-CR (filed 21 Jan. 1999)
The defendant was convicted of multiple sexual assaults involving
young girls. During the voir dire, juror C did not disclose that she had
been a victim of sexual assault as a child. The supreme court, in an
opinion written by Chief Justice Abrahamson, reversed the lower courts
and remanded the matter.
The supreme court applied a two-part test developed in prior cases.
First, did the juror incorrectly or incompletely respond to a material
question on voir dire? Second, if she did, is it more probable than not
under the circumstances that the juror was biased against the moving
party? The sole issue concerned the second question: Was juror C biased?
The court agreed that there was no showing of "actual bias." Juror C
"was honest, acted in good faith, and did not purposely give an
incorrect or incomplete answer." The supreme court next addressed
whether bias could be inferred. Clearly, "a juror's honesty is an
important factor in determining inferred bias and . . . being a victim
of sexual assault does not per se predispose the person to a particular
result in a sexual assault case." The court held, however, that the
trial judge erroneously exercised his discretion in declining to find
inferred bias: "The record leaves no doubt that bias is to be inferred
from the facts and circumstances of this case."
Insurance
Medical Malpractice - Patients Compensation Fund - Subrogation -
"Health-care Providers"
Patients Compensation Fund v.
Lutheran Hospital - La Crosse Inc., No. 96-1344 (filed 26 Jan.
1999)
The Patients Compensation Fund (the Fund) settled a medical
malpractice claim by paying $10 million to the persons damaged. The Fund
then brought this action seeking contribution against the hospital and
various other defendants, including a nurse who carried a professional
liability rider to her homeowner's policy. The circuit court ruled that
the Fund had a subrogated right to maintain a contribution claim against
the nurse, assuming she was negligent. The court of appeals
reversed.
The supreme court, in an opinion written by Justice Crooks, affirmed
the court of appeals. Clearly, the Fund could not bring a contribution
action against the nurse unless it was subrogated to one of the joint
tortfeasors. The court held that "the Fund does not have subrogation
rights which would permit it to pursue a claim for contribution against
one whose alleged negligence arose while he or she was conducting a
health-care provider's business, when that person is not a Wis. Stat. Ch. 655
health-care provider or a health-care provider's insurer." No provision
in chapter 655 suggested that "the assets or insurance of the employee
of the health-care provider are relevant in determining the limit on the
employee's liability or the amount of excess coverage which the Fund
must provide." The court further held "that any liability of a
nonhealth-care provider which arises while he or she is conducting a
health-care provider's business, together with the liability of the
health-care provider itself, is limited to the amount of primary
coverage mandated by Wis. Stat. sec. 655.23(4) or the amount of coverage
actually carried by the health-care provider, whichever is greater."
In this case the nurse, a hospital employee, was conducting hospital
business when the negligence occurred. She was not a "health-care
provider" as defined in chapter 655.
Torts
Governmental Entities - Statutory Notice - Prospective
Application
Snopek v. Lakeland Medical
Center, No. 96-3645 (filed 21 Jan. 1999)
Snopek received treatment at a county-owned medical facility in 1979.
Following surgery for knee trouble in 1995 she learned that a piece of
plastic may have been left in her knee during the 1979 treatment. On
July 31, 1995, she filed a request for mediation and on Dec. 8, 1995,
she filed this action alleging medical negligence. The defendant moved
to dismiss on the ground that the notice of claim statute in effect at
the time of the 1979 incident required the plaintiff to give notice of
injury within 120 days after the occurrence of the event. Snopek
countered that her claim was governed by the 180-day notice provision
that was in effect when she discovered her injury in 1995. The circuit
court agreed with Snopek, and the court of appeals affirmed.
The supreme court, in an opinion written by Justice Bablitch,
reversed. A single issue was before the court: "whether the 1986
amendment which changed the prescribed time within which to give notice
of injury for medical malpractice claims from 120 days after the
injury-causing event to 180 days after the injury is discovered or
should have been discovered, can be applied retroactively." The court
held that the Legislature intended a prospective application only. A
"nonstatutory provision" clearly explained that the new 180-day notice
applied to occurrences happening on or after the act's effective date,
June 14, 1986. Although "occurrence" was undefined, the court held that
term refers to "the event or accident which causes the harm."
Chief Justice Abrahamson, joined by Justice Bradley, concurred but
would have preferred giving the parties an opportunity to brief their
views on the Legislature's intent.
Justice Wilcox, joined by Justice Prosser, also concurred but
concluded that the 180-day waiting period is a statute of limitations,
not a procedural rule.
Medical Malpractice - Informed Consent - Withdrawal of Consent
Schreiber v. Physicians Ins.
Co., No. 96-3676 (filed 26 Jan. 1999)
In 1987 Janice Schreiber delivered her third child, who was born a
spastic quadriplegic. Her first two children had been born via cesarean
delivery. During her prenatal care she was informed that a vaginal birth
after cesarean (VBAC) was no more dangerous than another cesarean
delivery. Janice testified that she agreed to the VBAC with the
understanding that she could change her mind during labor and request a
cesarean delivery. Once in labor, Janice experienced excruciating pain
and requested a cesarean delivery on several occasions. Her doctor
repeatedly refused the requests until the baby's heart rate dropped. He
then performed a cesarean. The parties stipulated that had the doctor
performed the delivery a half-hour earlier, the child would have been
healthy. The case proceeded to a trial to the court on a theory of
informed consent. The circuit court ruled that the doctor was under no
obligation to readvise Janice of her options. The court of appeals
reversed.
The supreme court, in an opinion written by Justice Ann Walsh
Bradley, affirmed the court of appeals. The decision begins with the
caution that it should not be interpreted "as creating a patient's right
to demand any treatment she desires." The court's opinion addressed
three "narrow and discrete issues." First, did Janice withdraw her
consent? Second, if so, did Janice's withdrawal coupled with the
existence of viable medical options "trigger" the doctor's duty to again
discuss the benefits and risks of her medical options? Third, should a
subjective or objective standard govern whether the doctor's failure to
conduct another informed consent discussion caused the child's
injuries?
As to the first issue, the court was satisfied that Janice had
withdrawn her consent to the VBAC. Although the doctor contended that he
would have performed the cesarean earlier had Janice "persisted," the
court held that "after three unsuccessful personal attempts and a fourth
unsuccessful attempt through the nurse," it was unclear what more she
could have done. Second, the court agreed that upon withdrawal of
consent, the doctor was obligated to conduct another informed consent
discussion. The withdrawal returned doctor and patient to their
"original position" and created "a blank slate upon which the parties
must again diagram their plan." The supreme court rejected the trial
judge's position that only a change in "medical circumstances" triggers
the right to a new informed consent discussion: "Either a substantial
medical or substantial legal change of circumstances results in an
alteration of the universe of options a patient has and alters the
agreed upon course of navigation through that universe." Here the legal
change was "the withdrawal of an option [the VBAC] previously
foreseen."
On the third issue, the supreme court reaffirmed its commitment to an
objective test for informed consent cases generally, but concluded that
in cases such as this the rationale supported a subjective approach. The
problem was not a lack of information; rather, her claim was entirely
subjective: "What did the patient himself or herself want?" Had the
doctor engaged in a new informed consent discussion, Janice would have
selected the cesarean delivery and the child would have been
healthy.
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.
Wisconsin Lawyer
