Supreme Court Digest

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

| Criminal Law | Criminal Procedure |
| Insurance | Municipal Law |
| Torts | Worker's Compensation |

Carrying Concealed Weapon - Defense of Privilege

State v. Dundon, No. 97-1423-CR (filed 11 June 1999)

The defendant managed a gas station in Milwaukee. Confronted with a safe filled to capacity and the unavailability of the station's armored car service to make a pickup, the defendant decided to take the contents of the safe (which included $17,000 in cash) to the bank himself. While doing so he carried a concealed firearm and was arrested for that offense.

The primary issue before the supreme court was whether a person may assert a defense of privilege to the crime of carrying a concealed weapon (CCW). In a unanimous decision authored by Justice Prosser, the court began its analysis by examining the Wisconsin privilege statute and its various specific provisions. See Wis. Stat. § 939.45. Concluding that the statute's privileges for coercion, necessity, defense of persons or property, fulfillment of duties of a public office, accomplishment of lawful arrest, and parental discipline did not apply, the court turned to the last subsection of the statute which establishes a privilege "when for any other reason the actor's conduct is privileged by the statutory or common law of this state." The defendant claimed that this last privilege permits the common law privilege recognized in State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996), for the crime of felon in possession of a firearm to apply to the crime of CCW.

Coleman recognized a narrow defense of privilege to a charge of felon in possession of a firearm when a stringent five-part test is satisfied. However, the supreme court declined to extend the Coleman privilege to the unrelated crime of carrying a concealed weapon. The court further noted that Wisconsin has not recognized any unique statutory or common law privilege to the crime of carrying a concealed weapon for more than 120 years.

Having determined that a defense of privilege was unavailable to the defendant, the court proceeded to dispose of various claims of trial error raised by the defendant. It concluded that, inasmuch as no defense of privilege to the crime of carrying a concealed weapon was or could have been established by the defendant in this case, the judge did not commit error by excluding evidence supporting this invalid defense, by refusing to permit defense counsel to argue this defense to the jury, and by declining to instruct the jury on the defense.

Injury by Negligent Handling of Dangerous Weapon -
Dogs as Dangerous Weapons

State v. Bodoh, No. 97-0495-CR (filed 18 June 1999)

The defendant's Rottweiler dogs chased a 14-year-old boy who was riding his bicycle. The dogs pulled the boy from his bike and bit him several times, causing injuries requiring more than 300 stitches. As a result of this incident the defendant was charged and convicted by a jury of injury by negligent handling of a dangerous weapon, contrary to Wis. Stat. section 940.24.

In a unanimous decision authored by Justice Bablitch, the supreme court affirmed the conviction. It concluded that a dog can be a dangerous weapon if used or intended to be used in a manner calculated or likely to cause death or great bodily harm and that there was sufficient evidence presented to the jury to prove that the defendant did so use or intend to use his dogs. This included proof that the defendant regarded his animals as "watchdogs." The evidence included several examples of aggressive and vicious behavior by these dogs that demonstrated improper or insufficient training. There was no evidence showing that the defendant did anything to correct the aggressive behavior of his dogs.

The court cautioned that not all dogs are dangerous weapons and not all dog owners whose dogs bite another person can be subject to prosecution under section 940.24. It is only when there is sufficient evidence that the defendant intended to use his or her dog as a dangerous weapon that the person can be liable under the statute.

The court further concluded that the state demonstrated that the defendant was "handling" his dogs at the time of the attack (an element of the crime) even though he was not present when the attack occurred and was, in fact, out of state at the time. The court concluded that a person need not be physically present to "handle" a dog as that term is used in the statute and that there was ample testimony that the defendant was responsible for supervising, directing, and controlling his dogs.

Finally, the court held that the evidence was sufficient to prove that the defendant was criminally negligent in the handling of his dogs as that phrase is used in the statute. There was considerable testimony that the dogs were frequently loose and running at large in the community and that they had been involved in prior unprovoked attacks. Even though the defendant took steps to contain the dogs, given the apparent nature of the dogs and their history, as well as their size and power, the court concluded that there was sufficient and credible evidence in the record to support the jury's determination that a person of ordinary intelligence and prudence would reasonably foresee that failure to more adequately contain the dogs, especially when out of town, would subject others to an unreasonable and substantial risk of death or great bodily harm.

Revocation of Probation - Hearing Before
Administrative Law Judge - Separation of Powers

State v. Horn, No. 97-2751-CR (filed 11 June 1999)

The defendant challenged the constitutionality of Wis. Stat. section 973.10(2), which authorizes administrative, rather than judicial, revocation of probation. The circuit court agreed with him and declared the statute unconstitutional as a violation of the separation of powers doctrine.

Before the supreme court the issue was whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. In a unanimous decision authored by Justice Bablitch, the supreme court held that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties, the court concluded that section 973.10(2) is constitutional.

Responding to the defendant's assertion that it is striking that Wisconsin is the only state that requires administrative rather than judicial probation revocation, the court noted that it analyzed the statute cited above using a separation of powers analysis based on the Wisconsin Constitution. The court further observed that nothing in the federal constitution forbids a state from providing for administrative revocation of probation imposed by a court. Because neither the federal constitution nor principles of due process require that probation revocation proceedings be conducted before a court, the supreme court was not persuaded by other jurisdictions relying on judicial rather than administrative probation revocation.

Guilty Pleas - Failure of Defendant
to Personally Articulate His Plea on the Record

State v. Burns, No. 96-3615-CR (filed 22 June 1999)

In open court and in the presence of the defendant, defense counsel informed the judge that the defendant was prepared to change his plea from not guilty to no contest to a charge of homicide by intoxicated operation of a vehicle. The defendant had completed and signed a plea questionnaire and waiver of rights form on the morning of the hearing, which was filed with the circuit court. On the form the defendant indicated his wish to enter a plea of no contest to the charge. The circuit court engaged the defendant in an on-the-record colloquy to establish that the defendant understood the written plea questionnaire, was entering the plea voluntarily, was aware of the potential penalties, and understood that by entering a plea he would waive important constitutional rights. However, the circuit judge failed to ask the defendant on the record to verbalize his plea of no contest and the defendant never spoke those words.

The issue before the supreme court was whether Wis. Stat. section 972.13(1) requires that a defendant expressly and personally articulate a plea of guilty or no contest on the record in open court in order for a judgment of conviction to be entered on the plea. In a majority opinion authored by Chief Justice Abrahamson, the court affirmed the judgment of conviction, because the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest.

Despite this conclusion, the court expressed deep and continuing concerns about affirming a conviction based on a plea when the defendant has not expressly and personally articulated that plea on the record in open court. "A defendant expressly and personally pleading guilty or no contest on the record in open court is the best way for a circuit court to assure itself that the defendant has personally made the decision to so plead. This court urges circuit courts to follow the usual and strongly preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record."

Justice Bradley filed a dissenting opinion.

Ineffective Assistance of Counsel - Conflict of Interest

State v. Love, No. 97-2336-CR (filed 23 June 1999)

This case concerns a relatively unique set of facts. In 1995 the defendant was charged with new crimes that led to the revocation of his probation. When he was returned to court for sentencing on the original charge, he was represented by a public defender who also happened to have been the assistant district attorney who represented the state at the original sentencing. The defendant later filed a postconviction motion alleging that the public defender/former prosecutor had rendered ineffective assistance of counsel. The circuit court denied the motion but the court of appeals reversed, holding that the defendant was entitled to a resentencing without having to demonstrate either an actual conflict of interest or prejudice.

The supreme court, in an opinion written by Justice Prosser, reversed the court of appeals. Extensively reviewing the case law on ineffective assistance of counsel and conflicts of interest, the supreme court held that "in order to establish a Sixth Amendment violation on the basis of a conflict of interest in a serial representation case, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel converted a potential conflict of interest into an actual conflict of interest by (1) knowingly failing to disclose to the defendant or the circuit court before trial the attorney's former prosecution of the defendant, or (2) representing the defendant in a manner that adversely affected the defendant's interests." On this record the defendant failed to make the requisite showing.

Guilty Pleas - Procedures - Withdrawal

State v. Brandt, No. 97-1849 (filed 8 June 1999)

The defendant pleaded guilty to forgery and theft. Before entering the plea, his lawyer read him a guilty plea questionnaire that the defendant later signed. Attached to the questionnaire was an addendum that contained incorrect information about the offenses he was pleading to. At the guilty plea colloquy the trial judge conveyed correct, complete, accurate information about the defendant's crimes and the rights he was waiving. Some time later, the defendant brought a motion to withdraw based on the incorrect information set forth in the addendum and on which he claimed to have relied. The lower courts affirmed the convictions.

The supreme court, in an opinion written by Justice Bradley, also affirmed. The law clearly requires that the defendant "understand" his guilty plea. The defendant's argument "hinge[d] on two facts: (1) the plea questionnaire and the plea colloquy described different crimes; and (2) the circuit court did not notice this inconsistency and clarify the matter with Brandt." Trial courts, however, have discretion in how to conduct the plea hearing and are not required to use the questionnaire. Here the judge was authorized to "order the completion of a plea questionnaire but then conduct its colloquy disregarding in whole or in part that questionnaire." In cases where judges ignore the plea questionnaire and use the colloquy, reviewing courts will scrutinize the colloquy; "the adequacy or deficiency of the plea questionnaire is not at issue because it does not constitute the basis on which the plea is accepted." The supreme court explicitly distinguished cases where the judge relies on the information in the plea questionnaire to demonstrate the defendant's understanding.

Competency Hearings - Time Limits

State ex rel. Hager v. Martin, No. 97-3841-W (filed 16 June 1999)

The defendant was held in custody from July 1997 to December 1997, awaiting an examination to determine whether he was competent to stand trial for numerous criminal charges against him. In this habeas corpus action he now seeks dismissal of all the pending charges against him and release from custody claiming that the statutory time limits for a competency examination were violated.

The first issue before the supreme court was whether a petitioner can raise an issue of statutory interpretation on a writ of habeas corpus. In a decision authored by Justice Wilcox, the court concluded that a question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction.

The second issue before the court involved the question of whether there was a jurisdictional defect because the competency examination was not conducted within statutory time limits. The supreme court answered in the negative. Pursuant to Wis. Stat. section 971.14(2), a competency examination ordered to be conducted on an inpatient basis must be completed and the report of the examination filed within 15 days after the examination is ordered. However, if the court orders the defendant to be examined by the Department of Health and Family Services or a department facility, the department shall determine if the examination is to be done on an inpatient basis and, if so, the 15-day time period begins to run upon the defendant's arrival at the inpatient facility.

The court order for the competency examination in this case directed that the examination be conducted at Winnebago - a department mental health facility. Because the defendant was never transported to the Winnebago facility, the time limit for conducting the examination never started to run. There was thus no violation of section 971.14(2).

Chief Justice Abrahamson filed a concurring opinion with which Justice Bradley joined.

Return of Seized Property - Money as "Contraband"

Jones v. State, No. 97-3306 (filed 3 June 1999)

This case involves the interplay of two statutory schemes relating to the return of seized property.

Wis. Stat. section 961.55(1) provides among other things that all property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime under the controlled substances chapter of the Wisconsin Statutes and any drug paraphernalia are subject to a state forfeiture action. Seizure without process may be made if it is incident to arrest. The statute further provides that any property seized but not forfeited shall be returned to its rightful owner, and any person claiming the right to possession of seized property may apply for its return to the circuit court.

Wis. Stat. section 968.20(1) provides that any person claiming the right to possession of property seized with or without a search warrant may apply for its return to the circuit court. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband, returned if it is not needed as evidence or all proceedings have been completed.

The first issue before the supreme court in this case was described in the opinion as follows: If property is seized pursuant to a search that leads to a charge of a violation of the Uniform Controlled Substances Act (Wis. Stat. ch. 961) and the state has not initiated forfeiture proceedings, may an interested party seek return of the property under Wis. Stat. section 961.55? In a decision authored by Justice Wilcox, the court concluded that the Legislature intended that the return of property provision in section 961.55 can only be triggered by an unsuccessful forfeiture action brought by the state. In all other situations where the state has not initiated a forfeiture action, a person claiming the right to property seized by the authorities is limited to the procedures set forth in Wis. Stat. section 968.20.

The second issue before the court was specified as follows: If the interested party brings an action for return of property under Wis. Stat. section 968.20, is cash considered "contraband" within the meaning of section 968.13(1), particularly when the charge arising out of the property seized during the search is ultimately dismissed? The court concluded that when the state has not instituted forfeiture proceedings and an interested party seeks return of seized property under section 968.20, in order to retain the property, the state must establish that the property is either contraband or is needed as evidence in a case. For property alleged to be contraband, the state must establish a logical nexus between the seized property and illicit behavior on the part of the petitioning property owner. If property is found to be contraband, then the property need not be returned whether criminal charges ultimately are filed or not.

The court further concluded that the notion of "contraband" encompasses not only those items that are illegal per se, such as controlled substances or forged money, but also those items that are used, acquired, or transferred illicitly. Said the court, money that is established to have been acquired through the sale of or used to purchase controlled substances certainly constitutes contraband under section 968.13(1)(a) (the statute defining the term).

Finally, the court concluded that when the state contends that property need not be returned under section 968.20(1) because it constitutes contraband, the state must establish this by the greater weight of the credible evidence.

Justice Prosser filed a concurring opinion. Justice Bradley filed a dissent that was joined by Chief Justice Abrahamson.

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