Vol. 73, No. 2, February 2000

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Court of Appeals Digest

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

| Administrative Law | Business Law | Contracts | Courts |
| Criminal Law | Criminal Procedure | Death Certificate |
| Education | Evidence | Family Law | Insurance |
| Municipal Law | Public Benefits | Real Estate |
| Sexual Predators | Torts | Zoning |

Preliminary Hearings - Reissuance - New and Unused Evidence -
Standard of Review

State v. Johnson, No. 98-2881-CR (filed 31 Oct. 1999) (ordered published 22 Nov. 1999)

The defendant was charged with robbery and bail jumping in connection with an alleged "holdup" of a gas station. The suspect never actually displayed a weapon but he had made menacing gestures suggesting he was armed. The court commissioner dismissed the charges after a preliminary examination. The state reissued the same charges and presented more evidence at the second preliminary examination. The court commissioner found probable cause and ruled that the state's proof constituted "new and unused evidence" within the meaning of the case law. The circuit court reversed this determination, finding that the state's additional evidence was merely cumulative and corroborative of that presented at the first preliminary hearing.

The court of appeals, in a decision written by Judge Anderson, reversed the circuit court and granted the state's request that the charges be reinstated. The court took up two issues. First, it held that a de novo review standard governs the circuit court's reversal of a court commissioner's finding that the state presented new and unused evidence. Under existing case law, the de novo standard applies when the circuit court reviews a court commis-sioner's probable cause determination, so by the same logic the "new and unused evidence" issue also should be scrutinized in this way.

Second, based on its de novo review of the record the court of appeals agreed that the state had presented "new and unused evidence." The gas station attendant provided more detail about the events and the state produced a "new witness," the defendant's cell mate. None of this was "cumulative" to the first preliminary hearing. The new evidence also demonstrated a reasonable probability that the defendant had threatened force, an element of robbery.

Finally, the state also "re-presented evidence at the second preliminary hearing that was not considered at the first preliminary hearing." Thus "[e]vidence that has been presented to the court but not taken into account when the court made its decision during the initial preliminary hearing is considered 'unused,' and the state may use such evidence as support for its reissuance of a complaint."

Jury Selection - Statutory Bias - Brothers-in-Law

State v. Czarnecki, No. 98-2406-CR (filed 1 Sept. 1999) (ordered published 22 Nov. 1999)

The defendant was convicted of multiple felonies after a jury trial. His motion for postconviction relief also was denied.

The court of appeals, in an opinion written by Judge Snyder, reversed. The central issue was "whether a prospective juror who is the brother-in-law of a state witness must be struck for cause as a 'relative by blood or marriage to the third degree of a state witness.'" Case law involved brothers related by blood, but the court was "no less convinced that the court's per se rule applies with equal force to persons related by marriage." Family relations imply bias as a matter of law. Applying the "chart" depicted in "Figure 852.03(2), Stats.," the court determined that "both a brother and a brother-in-law are two degrees removed for purposes of determining juror bias." The court held that such a relationship also constituted "statutory bias" under the supreme court's most recent typology of juror bias. This error deprived the defendant of a statutorily guaranteed right to exercise all of his peremptory challenges and thus reversal was the appropriate remedy.

Guilty Pleas - Withdrawals - Exculpatory Evidence

State v. Sturgeon, No. 98-2885-CR (filed 17 Nov. 1999) (ordered published 16 Dec. 1999)

The defendant pled guilty to burglary and was sentenced. Later the defendant came into possession of allegedly exculpatory evidence relating to his confession. The judge, however, denied his postconviction motion to withdraw the guilty plea.

The court of appeals, in an opinion written by Judge Nettesheim, reversed and set forth "the proper methodology for evaluating a guilty plea withdrawal request based on the postplea discovery of exculpatory evidence within the exclusive control of the State." Under prevailing case law, a defendant who moves to withdraw a guilty plea as a matter of right must show: "1) that a violation of a constitutional right has occurred; 2) that this violation caused the defendant to plead guilty; and 3) that at the time of the plea, the defendant was unaware of the potential constitutional challenge to the cause against him or her because of the violation."

The defense met the first element by showing that the state withheld exculpatory evidence that was within its exclusive possession. Roughly the same evidence related to the third element; namely, the defendant was unaware that the police had "memorialized" his exculpatory statements in the withheld police report. As for the causal element, "the court must be convinced that the undisclosed information was controlling in the defendant's decision to plead." A number of factors pertain to this determination, including the relative strength and weakness of the parties' cases, the "persuasiveness of the withheld evidence," the defendant's expressed reasons for pleading guilty, the defendant's "benefits" accruing from the guilty plea, and the "thoroughness of the plea colloquy." The record satisfied the causal element.

Corrections - "Cause" of Death - "Evolution" of the Disease -
Medical Malpractice

Neuman v. Circuit Court, No. 99-0714 (filed 16 Nov. 1999) (ordered published 16 Dec. 1999)

The plaintiff appealed an order amending his deceased wife's death certificate. On appeal he argued that the certificate "should have included in the cause of death section ... a description of the chain of claimed medical malpractice leading to her death." The court of appeals, in an opinion written by Judge Hoover, affirmed. After an evidentiary hearing, the circuit court did amend the death certificate to "a single cause of death, sepsis, which evolved from the chemotherapy's suppression of [the deceased's] immune system." Section 69.18(2)(f) of the Wisconsin Statutes requires that death certificates name the fatal disease and its "evolution." The possible role of any alleged medical malpractice does not fall within this language.

Private Schools - Transportation Costs - Private Transport

Providence Catholic School v. Bristol School Dist. #1, No. 98-3390 (filed 20 Oct. 1999) (ordered published 22 Nov. 1999)

By law, public high school districts (PSDs) must provide private schoolchildren transportation to and from their schools. This case involves PSDs that contracted with the students' parents to provide such transportation. The parents in turn gave the contract money to a private Catholic school to pay for the busing that the private school had arranged. Conflict arose when the allotted payment for the 1997-98 school year failed to cover the actual cost. The private school requested that the PSD either provide actual transportation or pay additional monies. The PSD refused and notified parents that it would continue to contract with them rather than provide actual busing. The students sued the PSDs.

The court of appeals, in an opinion written by Judge Anderson, affirmed a series of rulings by the circuit court. The primary contentions and the court's holding are summarized as follows. The PSDs filed a cross-appeal from the trial court's denial to dismiss on jurisdictional grounds. The court of appeals first held that the circuit court retained subject matter jurisdiction even though an administrative agency (the DPI) offered a remedy. In short, the trial judge had no reason to believe "that this issue required the DPI's specialized knowledge." Second, the PSDs had "actual notice" of the students' claims as permitted by section 893.80(1)(a) of the Wisconsin Statutes. Third, the trial court did not err by determining that the students lived within the approved geographic area as regulated by section 121.51(1) of the Wisconsin Statutes.

The court of appeals then turned to three issues raised by the students in their appeal. First, the PSDs properly complied with their statutory obligations by contracting with parents or guardians to provide the necessary transportation. The court construed sections 121.54 and 121.55 in a way that harmonized their meanings and effectuated the Legislature's purpose. Second, a one-year notice provision in section 121.54(2)(b)2 applied only to high school districts; "[n]owhere in the statute does it mention that schoolchildrens' parents or guardians should receive notice." Third, a 30-day notice provision in section 121.55(3) applied only to a "reduced formula" set forth in the statute and apparently not implicated in this case.

Cognitively Impaired Witness - Improper Bolstering

State v. Tutlewski, No. 98-2552-CR (filed 13 Oct. 1999) (ordered published 16 Dec. 1999)

The court of appeals, in a decision authored by Judge Snyder, reversed the defendant's multiple felony convictions for sexually assaulting a cognitively disabled woman. During trial the prosecution called a teacher to testify that she had taught cognitively disabled students for 27 years. The witness's students included the victim. The witness testified that the victim and her husband were "honest" and "truthful" and that it was not "within their capabilities to lie or be deceitful."

The court held that this testimony constituted reversible error. It violated the cardinal rule that no witness, lay or expert, may testify "that another physically and mentally competent witness is telling the truth." The expert witness (the teacher) could have properly discussed the "nature of cognitive disabilities and how such mental impairments" affect one's ability to accurately perceive, recall, and narrate events. The expert's opinion, however, crossed the line and was not harmless error.

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