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Vol. 72, No. 9, September 1999

Court of Appeals Digest

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

| Appellate Procedure | Civil Procedure | Criminal Law |
| Criminal Law/Motor Vehicle Law | Criminal Procedure |
| Family Law | Labor Law | Municipal Law |
| Notice of Claims | Real Property | Torts |

Traffic Regulation Appeals from Circuit Court -
Time for Initiating Appeal

City of Sheboygan v. Flores, No. 99-0954 (filed 30 June 1999) (ordered published 21 July 1999)

In this case the court of appeals was asked to determine which event triggers the appeal period in traffic regulation cases: the disposition recorded in the circuit court docket entries or the entry of a separate judgment or order in the office of the clerk of circuit court.

In a per curiam decision the court of appeals concluded that a disposition recorded in the docket entries triggers the appeal period. See Wis. Stat. § 808.03(1).

Destruction of Evidence - Sanctions

Garfoot v. Fireman's Fund Ins. Co., Nos. 98-1618 & 98-1662 (filed 10 June 1999) (ordered published 21 July 1999)

The plaintiff was injured when a gas heater exploded. The trial judge later determined that the technician hired by the plaintiff's engineer had disturbed evidence at the site "that would have either proved or disproved [the plaintiff's] claim that a leak in the piping system caused the explosion." Based on this finding, the court dismissed a variety of claims against the defendants.

The court of appeals, in a decision authored by Judge Vergeront, reversed. The dismissal of claims as a sanction for destroying evidence is appropriate only where "there was a conscious attempt to affect the outcome of the litigation or a flagrant knowing disregard of the judicial process." On this record, the court of appeals refused to find that the attorney's conduct was "egregious" enough to merit dismissal. It also remanded the matter for a hearing on whether the attorney's conduct was negligent and merited some sanction short of dismissal.

The court of appeals then addressed a series of issues likely to arise on remand. First, on whether the attorney's behavior should be imputed to the client, "the trial court is to consider the client's failure to act in a reasonable and prudent manner, and the client's knowledge of or complicity in that conduct, in deciding whether to impute the attorney's conduct to the client for purposes of a sanction." Second, the actions by the technician and engineer, who were hired by plaintiff's counsel, could be imputed to the plaintiff. Third, it is not necessary that each of the persons acting on the plaintiff's behalf (that is, the lawyer, the engineer, and the technician) must have been negligent or engaged in egregious behavior. Fourth, "prejudice" to a party caused by the destruction of the evidence is a factor to be considered, but prejudice is not a condition precedent for dismissal as a sanction.

Summons and Complaint - Timely Filing

Granado v. Sentry Insurance, No. 98-3675-FT (filed 15 June 1999) (ordered published 21 July 1999)

The plaintiff was injured in a fall on June 18, 1995. Three years later, on June 18, 1998, his lawyer called the county clerk of court after the clerk's office had closed and made arrangements to deliver the summons and complaint to the clerk at his home. The plaintiff's lawyer hand-delivered the papers to the clerk at 9:30 p.m. The clerk wrote, "Received: 6/18/98," and then signed and dated the complaint. The papers were not stamped "filed" until the next day, June 19. The circuit court dismissed the action because the summons and complaint had not been filed until June 19, 1998, after the statute of limitations had expired.

The court of appeals, in an opinion written by Judge Hoover, affirmed. Addressing the powers of the clerk of court, the court of appeals rejected the contention that clerks can "accept papers only during usual business hours set by the county board." But the court also rejected the plaintiff's contention that "receipt by the clerk is synonymous with filing." Court clerks are charged with the responsibility of "properly depositing" legal papers. The court of appeals held that "'properly deposited' means that the further removed from an office's legislative guidelines and usual business hours a transaction occurs, the less likely it is that the papers have been properly deposited." Here the clerk "as a matter of law exercised his discretion in a manner that impermissibly surpassed the legislative strictures he was subject to."

Controlled Substances - Drug Repeater Law -
Possession of Drug Paraphernalia as the Prior Conviction

State v. Moline, No. 98-2716-CR (filed 23 June 1999) (ordered published 21 July 1999)

Possession of cocaine is a misdemeanor offense but, if the defendant is a repeat drug offender, it is a felony. Wis. Stat. section 961.48 defines the circumstances in which one is a drug repeater, and the question in this case was whether a prior conviction under Wisconsin law for possessing drug paraphernalia qualifies as a prior drug offense that triggers the drug repeater.

In a decision authored by Judge Brown, the court of appeals held that a prior conviction for possessing drug paraphernalia pursuant to section 961.573 qualifies as a prior offense for purposes of invoking the repeat drug offender statute.

Validity of Misdemeanor Conviction Before
Six-person Jury - OWI - Admissibility of HGN Test Results

State v. Zivcic, Nos. 98-0909 and 98-1381 (filed 29 June 1999) (ordered published 21 July 1999)

The defendant was convicted of a misdemeanor OWI offense before a six-person jury that was impaneled under Wis. Stat. section 756.096(3)(am). This statute, which provided for six-person juries in misdemeanor actions, was subsequently ruled unconstitutional by the Wisconsin Supreme Court. See State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998). The defendant did not object to the six-person jury, did not request a 12-person jury, and did not raise an issue as to whether the statute was unconstitutional.

The first issue considered by the court of appeals was whether the defendant is entitled to a new trial with a 12-person jury. In a decision authored by Judge Wedemeyer, the court of appeals concluded that he was not. Though the Hansford ruling applies to all cases "pending on direct review," relief is limited to those who raised the issue before the trial court. Because the defendant did not raise any objection to the six-person jury, he is not entitled to a new trial with a 12-person jury.

This case also presented an issue of first impression regarding the admissibility of the horizontal gaze nystagmus (HGN) test, which is used to determine sobriety. The defendant urged that the HGN test results were improperly admitted at his trial.

The court of appeals disagreed. It found that the trial court did not erroneously exercise its discretion when it allowed the deputy sheriff who administered the HGN test to offer expert testimony on that test. The deputy testified that he was trained in administering and evaluating the test. Thus, there was a reasonable basis for the trial court to conclude that he was qualified to offer expert opinion regarding the HGN test. Because there is evidence to support the trial court's finding that the deputy qualified as an expert, the court of appeals also rejected the defendant's argument that there was an insufficient foundation to admit the test results.

To the extent that the defendant argued that a second expert, in addition to the law enforcement officer, was required to testify before the HGN test results could be admitted, the court of appeals disagreed. As long as the HGN test results are accompanied by the testimony of a law enforcement officer who is properly trained to administer and evaluate the tests, the mandates of the expert testimony statute (Wis. Stat. section 907.02) are satisfied.

Search and Seizure - Reasonable Expectation of Privacy -
Burden of Proof

State v. Ramirez, No. 98-0996-CR (filed 2 June 1999) (ordered published 21 July 1999)

The defendant was convicted of delivering and possessing a controlled substance. Postal authorities had intercepted a package of marijuana addressed to the defendant. They resealed the package with a device that alerted them when someone opened the package. The resealed package was delivered to the defendant. Later, police executed an anticipatory search warrant. Following his conviction, the defendant appealed the trial court's rulings on his motions to suppress.

The court held that the defendant had the burden of establishing "some reasonable expectation of privacy in the package." The burden is, however, "minimal." The court of appeals discussed the myriad factors that lower courts should examine when assessing a privacy interest in a delivered package. It rejected the defendant's proposed presumption of privacy based on residence and several "alter ego" scenarios advanced by the state. The issue was remanded for a new hearing because the trial judge had applied an erroneous standard.

Conditions of Probation - Constitutional Challenges to Probation Condition Restricting Association with Gang Members

State v. Lo, No. 98-2490-CR (filed 27 May 1999) (ordered published 21 July 1999)

The defendant pled guilty to being a party to the crime of aggravated battery with intent to cause substantial bodily harm, as a gang-related offense. He was convicted and placed on probation. A condition of probation was that he "have no contact with gang members or be involved in any gang activities." On appeal he claimed that this probation condition was unconstitutionally vague and overbroad.

In a decision authored by Judge Eich, the court of appeals affirmed. A probation condition must be sufficiently precise for the probationer to know what conduct is required of him or her. The parties agreed that the gang member/gang activity condition of the defendant's probation may reasonably be read in light of definitions found in criminal code sections dealing with gangs. See Wis. Stat. §§ 939.22(9) and (9g), and 941.38(1)(b). Proceeding from this agreement the court of appeals concluded that the statutory definitions of "criminal gang members," "criminal gang," and "criminal gang activity" are sufficiently specific to provide the defendant with fair and adequate notice as to his expected course of conduct while on probation.

The court also concluded that the probation condition is not overbroad. A reasonable interpretation of the condition is that it requires that the defendant not have contact with individuals whom he knows, or reasonably should know, are members of a gang.

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