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Vol. 72, No. 6, June 1999 |
Supreme Court Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Civil Procedure | Criminal
Law | Criminal Procedure |
| Evidence | Taxation
| Torts |
Civil Procedure
Offers to Settle - Clarification - Insurer's
Duty -
Coverage Disputes
Prosser v. Leuck,
No. 97-0686 (filed 21 April 1999)
In 1992 Leuck, then a minor, started a fire that destroyed
Prosser's warehouse. In 1993 Prosser sued Leuck and his
parents' homeowner's insurer. The insurance policy's
limit was $100,000. In October 1993 Prosser offered to settle
for $99,750 "plus the actual costs of this action."
The offer, addressed only to the insurer and its attorneys, promised
to dismiss "this pending litigation and the entirety of
defendant's liability" upon receipt of the payment.
The insurer did not respond, choosing instead to litigate coverage
under an intentional acts exclusion. Eventually, the courts ruled
that the Leucks were covered and the insurer tendered the $100,000
policy limit to Prosser. Prosser declined and filed a motion
for summary judgment for double costs and interest pursuant to
sections
807.01(3) and (4) of the Wisconsin Statues based upon the
insurer's earlier refusal of his settlement offer. The trial
court granted interest but excluded the time period during which
the coverage issue was litigated. It refused to grant double
costs as well, reasoning that most of the cost incurred involved
the coverage dispute. The court of appeals held that the original
offer was ambiguous and therefore invalid; thus, Prosser was
not entitled to interest or costs.
The supreme court, in an opinion written by Justice Bablitch,
reversed. The court held that "an insurer, as part of its
fiduciary duty to its insured, has a duty to clarify an offer
of settlement that is ambiguous with respect to whether the offer
applies to only the insurer or both the insurer and the insured.
Failure to clarify the ambiguity results in a valid offer pursuant
to Wis. Stat. sec. 807.01." Obviously, Leuck's interests
were directly affected by the terms of the offer. If it extended
only to the insurer, Leuck was left without coverage. If it applied
both to him and the insurer, he was released from additional
exposure. The court also held that "Prosser is entitled
to double costs, including costs associated with determining
coverage, and interest from the date of the settlement offer
throughout the trial on determining coverage." The issues
of double costs and interest are governed by the same standard
in "determining whether a judgment is greater than or equal
to a rejected settlement offer." In this case, the stipulated
judgment of $100,000, exclusive of costs, exceeded the rejected
settlement offer of $99,750, exclusive of costs. The court's
conclusion that coverage costs also are subject to doubling was
supported by the policy behind section 807.01 - "to
encourage pretrial settlement." Finally, the accrual of
interest was not stayed because "the underlying action is
stayed pending determination of coverage." The statute encompasses
no such exception.
Justice Bradley, joined by Chief Justice Abrahamson and Justice
Steinmetz, concurred for the reason that the majority opinion
unwisely "forces settlement" by imposing double costs
and interests even while coverage is disputed.
Criminal Law
Attempted First-Degree Intentional Homicide - Consumption
of Alcohol by Mother During Pregnancy - Alleged Injury to
Fetus
That Was Later Born Alive
State v. Deborah J.Z.,
No. 96-2797-CR (filed 9 April 1999)
[EDITORS' BACKGROUND NOTES TO PER CURIAM OPINION: The
criminal complaint in this case charged the defendant with one
count of attempted first-degree intentional homicide and one
count of first-degree reckless injury claiming that the defendant
intentionally consumed toxic quantities of alcohol in the last
days of her pregnancy in an attempt to kill her baby. The child
was born alive with a blood alcohol level of 0.199 GM/DL and
was suffering fetal alcohol effects. The case proceeded to preliminary
hearing and the defendant was bound over for trial. Charges filed
in the information tracked those alleged in the criminal complaint.
The defendant moved to dismiss the information arguing that the
evidence adduced at the preliminary hearing was insufficient
to support the bindover. The circuit court denied the motion.
An interlocutory appeal from that decision was taken and the
supreme court accepted the case on certification from the court
of appeals.]
The supreme court was equally divided on whether to affirm
or reverse the order of the circuit court on the charge of attempted
first-degree intentional homicide. Justices Steinmetz, Wilcox,
and Crooks would have affirmed; Justices Bablitch, Bradley, and
Prosser would have reversed. Chief Justice Abrahamson did not
participate.
Accordingly, the supreme court vacated its order granting
certification and remanded this case to the court of appeals.
Criminal Procedure
Appeals - Harmless Error
State v. Armstrong,
No. 97-0925-CR & 97-0926-CR
This brief per curium opinion clarifies the supreme court's
"original" opinion at 223 Wis. 2d 331, 369-70, 588
N.W.2d 606 (1999), by expanding upon the harmless error discussion
in footnote 38. In essence, the court clarified that State
v. Monahan, 76 Wis. 2d 387, does not "preclude, in any
way, the use of a harmless error approach in sec.
971.31(10) appeals and we withdraw from [State v. Pounds,
176 Wis. 2d 315 (Ct. App. 1993), and State v. Esser, 166
Wis. 2d 897 (Ct. App. 1992)] all language to the contrary."
With this clarification, the court denied the defendant's
motion for reconsideration.
Justice Bradley, joined by Chief Justice Abrahamson, concurred
but wrote separately to stress that the supreme court should
have requested additional briefing on this issue.
Guilty Pleas - Withdrawal Before Sentencing -
Fair and Just Reason - Recantations
State v. Kivioja,
Nos. 97-2932-CR & 97-2933-CR (filed 4 May 1999)
This is a tale of two plea bargains. The defendant and an
accomplice were arrested and charged with a series of burglaries.
The accomplice agreed to testify against the defendant in exchange
for charging and sentencing concessions by the state. The agreement
postponed the accomplice's sentencing until after the defendant's
trial, but the accomplice later insisted upon being sentenced
before he testified against the defendant. The judge sentenced
the accomplice to 20 years in prison and 10 years of probation
plus more than $13,000 in restitution. The sentence angered the
accomplice. About two weeks later the accomplice gave statements
to the defendant's investigator recanting earlier statements
implicating the defendant. Meanwhile, the defendant had reached
his own plea agreement with the state. By the time the accomplice
recanted, the defendant already had pleaded guilty and was awaiting
sentencing. Based on the recantation the defendant moved to withdraw
his guilty plea. Following an evidentiary hearing in which the
accomplice testified and repeated his recantation, the circuit
court denied the motion. The court of appeals certified this
case to the supreme court to clarify the test to be applied where
a key prosecution witness recants in a plea withdrawal case before
sentencing.
The supreme court, in an opinion written by Justice Steinmetz,
affirmed the circuit court's ruling, although on very different
grounds. The court held that when the defendant moves to withdraw
a guilty plea prior to sentencing, he need not show that the
recantation is corroborated or that a reasonable person would
believe the recantation. The recantation must, however, be "plausible."
Put another way, "a defendant must bring forward evidence
that the circuit court finds believable, without which any reason
offered in support of withdrawal would not be fair and just."
The supreme court formulated this standard to "help cir-cuit
courts determine whether a recantation is worthy of belief and
therefore a fair and just reason for withdrawal" prior to
sentencing:
"New evidence should constitute a fair and just reason
where the defendant shows by a preponderance of the evidence
that (1) the evidence was discovered after entry of the plea;
(2) the defendant was not negligent in seeking the evidence;
(3) the evidence is material to an issue in the case; and (4)
the evidence is not merely cumulative." In addition to these
four criteria, the "circuit court must determine that the
recantation has reasonable indicia of reliability." The
court also explained how this standard differs in "significant
ways" from the more "onerous" test that governs
plea withdrawals after sentencing. In its independent review
of the record, the supreme court held that the accomplice's
recantation lacked the reasonable indicia of reliability required,
and thus did not constitute a fair and just reason for the plea
withdrawal.
Chief Justice Abrahamson, joined by Justice Bradley, dissented.
The dissent argues that the majority opinion departs from Wisconsin's
traditional approach to guilty plea withdrawals and unwisely
commingles doctrine governing newly discovered evidence. The
dissent formulated what it deems is a better standard for adjudicating
post-plea, presentence withdrawals.
Revocation of Probation - Certiorari Review in the
Court of Conviction
Drow v. Schwarz,
No. 97-1867 (filed 5 May 1999)
Venue in a certiorari action to review a revocation of probation
is in the county in which the relator was last convicted of an
offense for which he or she was on probation. See Wis. Stat.
§
801.50(5). The issue in this case was whether a certiorari
proceeding to review a probation revocation must be heard by
the same branch of the circuit court in the county in which the
probationer was convicted of the offense for which he or she
was on probation.
In a unanimous opinion authored by Chief Justice Abrahamson,
the supreme court concluded that a certiorari proceeding to review
a probation revocation need not be heard by the same branch of
the circuit court in the county in which the probationer was
convicted of the offense for which he or she was on probation.
Certiorari proceedings of this sort may be heard in any branch
of the circuit court in the county in which the probationer was
last convicted of an offense for which he or she was on probation.
The court indicated that its holding does not restrict circuit
courts from developing and implementing local rules relating
to the assignment of certiorari petitions for review of probation
revocations as long as the rules are consistent with law and
the supreme court's rules of judicial administration.
Interstate Agreement on Detainers - Writ of Habeas Corpus
Ad Prosequendum
State v. Eesley,
No. 97-1839-CR (filed 30 April 1999)
The defendant was serving a federal prison sentence at the
Federal Correctional Institute in Sandstone, Minn. During that
time, he was charged with numerous separate state offenses by
a Wisconsin district attorney. To secure the defendant's
presence for his initial appearance, preliminary hearing, and
arraignment on the state charges, the state circuit judge issued
writs of habeas corpus ad prosequendum. Following each appearance
in the Wisconsin circuit court, the defendant was returned to
the federal institution.
The defendant filed a motion to dismiss all state charges
pending against him on grounds that the state had violated the
Interstate Agreement on Detainers (IAD). The IAD requires that
after a detainer is filed against a prisoner in another jurisdiction,
a trial must be held within 120 days of the arrival of the prisoner
in the state in which the trial is to be had. The sanction for
non-compliance with the IAD is dismissal of the pending charges
and, since the defendant was not tried on the state charges within
120 days of his first arrival in Wisconsin to answer the state
criminal charges, he claimed entitlement to dismissal.
The issue before the supreme court was whether a writ of habeas
corpus ad prosequendum constitutes a detainer under the IAD.
If it does, the IAD is triggered and the state must comply with
the speedy trial and other provisions of the agreement. If a
writ of habeas corpus ad prosequendum does not constitute a detainer,
the IAD is not implicated.
In a unanimous decision authored by Justice Bablitch, the
supreme court concluded that a writ of habeas corpus ad prosequendum
is not a detainer under the IAD. Accordingly, because no detainer
was ever filed in this case, the IAD and its protections were
never triggered.
Stop and Frisk - Anonymous Tips - Frisks of Vehicles
State v. Williams,
No. 96-1821-CR (filed 27 April 1999)
The Milwaukee police dispatcher received an anonymous tip
indicating that people were dealing drugs from a blue and burgundy
Ford Bronco parked in the driveway on the side of the caller's
apartment building. This information was relayed to a patrol
squad which arrived at the location within four minutes. Upon
arrival the officers observed a blue and burgundy Chevy Blazer
with two occupants parked at the address to which the officers
had been sent. The defendant was sitting in the driver's
seat; a woman was sitting in the front passenger's seat.
The officers did not observe any drug activity in progress nor
did they conduct any surveillance. Instead they approached the
vehicle immediately. While doing so one of the officers observed
that the defendant's right hand was behind the passenger's
seat and, although he did not see a weapon, the officer was concerned
for his safety. Therefore, he and his partner approached with
weapons drawn.
Both occupants were removed from the vehicle, patted down,
and placed in the squad car. One of the officers then searched
the area behind the seat where he had earlier noticed the defendant's
hand hidden from view. The officer testified that the purpose
of the search was officer safety because the defendant may have
had a gun in his hands and possibly dropped it behind the seat.
During this protective search of the vehicle, the officer recovered
marijuana and cocaine.
The circuit court denied the defendant's motion to suppress
the marijuana and cocaine. However, the court of appeals reversed.
It held that the information contained in the 9-1-1 anonymous
call and independently corroborated by the police did not reach
the requisite level of reasonable suspicion necessary for a stop.
It held that reasonable suspicion under the circumstances in
this case requires not only that the police corroborate anonymous
tips with independent observation of the details of such calls,
but that they also must either corroborate the predictions contained
in those tips or make independent observations of suspicious
activities.
In a majority opinion authored by Justice Steinmetz, the supreme
court reversed the court of appeals. In executing a valid investigatory
stop of an individual, the law enforcement officer need only
reasonably suspect, in light of his or her experience, that some
kind of criminal activity has taken or is taking place. In determining
what facts are sufficient to authorize police to stop a person,
the totality of the circumstances must be taken into account.
In this case the officers had the following facts and information
before them: an anonymous 9-1-1 phone call from a citizen informant
detailing information concerning his or her contemporaneous observation
of illegal drug dealing activity; independent corroboration of
the readily observable information from that tip; a quick response
time in which the officers arrived at the scene; the observation
that the vehicle involved did not have any license plates; and
the officers' inability to observe the defendant's
hand. Considering the totality of these circumstances, the court
concluded that the officers had the requisite reasonable suspicion
to "stop" the defendant.
In so holding the court rejected adoption of a categorical
rule requiring police corroboration of predictive information
as a precondition to reliance on anonymous tips. The absence
of information predicting the future behavior of an individual
who is the subject of an anonymous tip does not necessarily make
that tip worthless. An anonymous tip that is, as in the present
case, supplied by a citizen informant, lacking in predictions
but describing a crime in progress, can be accorded some weight
in an officer's consideration of reasonable suspicion.
With regard to the protective frisk of the vehicle, the court
noted that the officers were investigating suspected drug dealing.
As they approached the defendant's vehicle, the defendant's
hand was hidden from their view. When the defendant was frisked,
he did not have any weapons on his person. Under these circumstances
the court concluded that it was not unreasonable for the officer
to suspect, as he did, that the defendant may have had a weapon
and dropped it on the floor of the vehicle before he exited it.
These circumstances justified the limited search of the vehicle
for they lead a reasonably prudent individual to the conclusion
that his or her safety is in danger.
Justice Prosser filed a concurring opinion. Justice Bablitch
filed a dissent that was joined by Chief Justice Abrahamson and
Justice Bradley.
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