Vol. 73, No. 5, May 2000

Court of Appeals Digest

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

Editor's Note: Each case summarized in the Court of Appeals Digest includes its new public domain citation.

| Attorney Fees | Civil Procedure | Criminal Law |
| Criminal Procedure | Employment Law | Family Law |
| Insurance | Property | Torts |

Settlements - Reasonableness - Contingent Fees - Worker's Compensation

Meyer v. Michigan Mutual Ins. Co., 2000 WI App 53 (filed 2 Feb. 2000) (ordered published 22 March 2000)

The trial court entered a judgment approving a settlement and distributing the proceeds in accordance with section 102.29(1), Statutes, of the Worker's Compensation Code. The insurer appealed on the ground that the court had improperly awarded a one-third contingent fee as part of the "reasonable cost of collection" and failed to consider the appropriate factors under SCR 20:1.5(a) (1999). The fee came to $333,333.33

The court of appeals, in a decision written by Judge Snyder, affirmed on that issue. The trial court had considered more than the bare existence of the contingent fee contract. It also weighed the substantial hours spent on the case, the attorneys' effort, the size of the claim, and the risk of failure. These are factors embraced by SCR 20:1.5(a). Apart from the worker's compensation claim, the dispute entailed pleading and discovery tied to a third-party liability action plus several appeals.

The court reversed, however, based on the judge's err in entering a $1 million judgment solely in the name of the plaintiff, Meyer. Section 102.29(1) expressly requires that funds be distributed to the employer or the employer's insurance carrier. Meyer's judgment was limited to only that amount he was entitled to receive under section 102.29(1). On this record, Meyer was entitled to only one-third of the $666,000 that remained after deducting the collection costs. The worker's compensation carrier was entitled to the remaining $444,000 for the benefits it had paid.

Intervention - Wis. Stat. Section 803.09 - Status of Intervenor vis-à-vis Other Parties to the Litigation

Kohler Co. v. Sogen International Fund Inc., 2000 WI App 60 (filed 9 Feb. 2000) (ordered published 22 March 2000)

In this case the court of appeals considered what it deemed an issue of first impression in Wisconsin: the status of an intervenor in a civil action. Section 803.09 of the Wisconsin Statutes provides a mechanism whereby anyone who claims "an interest relating to the property or transaction ... of the action" and needs to protect this interest by participating in the action shall be permitted to intervene in the action. The statute applies in special proceedings as well as in ordinary civil actions unless a special procedure statute indicates to the contrary.

In a decision authored by Judge Anderson, the court of appeals concluded that an intervenor's status after intervention is the same as all other participants in the proceeding. It summarized this status by relying upon a federal case that discusses intervention under Fed. R. Civ. P. 24, which is essentially the same as Wis. Stat. section 803.09. In Schneider v. Dumbarton Developers Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985), the U.S. Court of Appeals characterized the status of an intervenor as follows: "When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party. The intervenor renders itself vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party. It is said to assume the risk that its position will not prevail and that an order adverse to its interests will be entered. As we said recently, 'The possibility that the plaintiff will be able to obtain relief against the intervenor-defendant' is part of the 'price' paid for intervention."

Battery by Prisoner - Application to Person in Custody on Probation Hold

State v. Fitzgerald, 2000 WI App 55 (filed 9 Feb. 2000) (ordered 22 March 2000)

The defendant was on probation for disorderly conduct. While on probation, he failed to keep an appointment with his probation agent and the agent issued an apprehension request directing that he be taken into custody. After being taken into custody on the apprehension request, the defendant bit the finger of one of the officers involved, drawing blood. As a result, he was charged with one count of battery by a prisoner contrary to Wis. Stat. section 940.20(1).

Pursuant to this statute, "any prisoner confined to a state prison or other state, county or municipal detention facility who intentionally causes bodily harm to an officer, employee, visitor or another inmate of such prison or institution, without his or her consent, is guilty of a Class D felony." The issue in this case was whether the defendant, as a probationer in custody under a probation hold, was a "prisoner" for purposes of this statute. In a decision authored by Judge Nettesheim, the court of appeals concluded that he was.

Conspiracy and Attempt - Conviction of Multiple Inchoate Crimes - Multiplicity

State v. Moffett and State v. Denson, 2000 WI App 67 (filed 10 Feb. 2000) (ordered published 22 March 2000)

The defendants, together with a woman, planned to kill the woman's husband. The plan was that the three of them would furnish a gun to a person named "Zake," who was to gain entry to the victim's house and murder him in his sleep. However, instead of killing the intended victim, Zake only wounded him.

The defendants were charged with conspiring to commit first-degree intentional homicide under the inchoate conspiracy statute (Wis. Stat. section 939.30) and with being parties to the crime of attempted first-degree intentional homicide.

The defendants moved to dismiss the conspiracy charge, arguing that Wis. Stat. section 939.72, which provides that no person may be convicted "for conspiracy and ... as a party to the crime which is the objective of the conspiracy," bars prosecution for both inchoate conspiracy to commit murder and attempted murder. The circuit court agreed and ordered the state to amend its information to drop one of the charges.

The court of appeals reversed in a decision authored by Judge Eich. The charges in this case involved two inchoate offenses: conspiracy and attempt. Section 939.72 only bars simultaneous convictions for an inchoate crime and a completed crime. Accordingly, the filing of the dual charges in this case did not violate section 939.72.

The defendants also contended that the dual charges in this case were multiplicitous. The appellate court rejected this contention as well. Each of the two crimes requires proof of a fact for conviction that the other does not. Further, there was no indication that the Legislature has clearly intended that cumulative punishments for these two offenses should be barred.

Probation - Rejection of Probation in Midst of Probationary Term

State v. McCready, 2000 WI App 68 (filed 23 Feb. 2000) (ordered published 22 March 2000)

After serving close to one year on probation, the defendant moved the court to terminate probation. At the hearing, he appeared with counsel. Counsel informed the court that he had tried to discourage the defendant from refusing probation and had warned the defendant of the risk of prison time. The court lifted the defendant's probation and sentenced him to a prison term.

The issue before the court of appeals was whether a probationer has the right to refuse probation - not only when it is first imposed - but at any time while serving it. In a decision authored by Judge Brown, the court of appeals concluded that a defendant has the right to reject probation at any time during the course of the probationary period.

Mandatory Release - Holding Inmate in Prison Beyond Mandatory Release Date Unlawful

State ex rel. Olson v. Litscher, 2000 WI App 61 (filed 16 Feb. 2000) (ordered published 22 March 2000)

The defendant was in prison for sexual assault and reached his mandatory release date. At that time the Department of Corrections (DOC) had been unable to locate a residence for him. DOC thus transferred him from the state prison in Oshkosh to the Kenosha Correctional Center, a minimum-security state penal institution.

The defendant petitioned the circuit court for a writ of habeas corpus, contending that his continued incarceration beyond his statutorily mandated release date was an unlawful restraint of his personal liberty. In a decision authored by Judge Brown, the court of appeals agreed. There is nothing in either the Administrative Code or the Wisconsin Statutes that authorizes DOC to detain a person past his or her mandatory release date. Whether or not a place has been found for an inmate, he or she must be released on the mandatory release date.

Sentencing - Sentence "Consecutive to Revocation" of Parole

State v. Cole, 2000 WI App 52 (filed 9 Feb. 2000) (ordered published 22 March 2000)

The defendant was convicted of theft and the court sentenced him to three years in prison "consecutive to revocation." At the time of the offense, conviction, and sentencing on the theft charge, the defendant was on parole for another crime. His parole was revoked shortly after the conviction and sentencing on the theft offense.

The defendant claimed that the court was without authority to impose consecutive sentences in this situation. Specifically, he argued that because he was on parole and his parole had not yet been revoked, he was not serving a sentence when the three-year prison term "consecutive to revocation" was imposed and the order requiring the theft sentence to be served consecutively should be voided.

Wis. Stat. section 973.15(2)(a) provides that "the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously." The appellate court, in a decision authored by Judge Anderson, concluded that this statute allowed the trial court to impose the consecutive sentence on the theft conviction under the circumstances as described above. In footnote, the court noted that if a sentence is ordered to be served after revocation, there remains a possibility that the parole may not be revoked. It urged circuit courts to consider this contingency in their sentencing remarks when imposing such a sentence. In this situation, the court could direct that in the event that parole is not revoked, the sentence on the new charge should commence forthwith.

Trials - Motions to Dismiss - Deferred Rulings - Impeachment

State v. Scott, 200 WI App 51 (filed 29 Feb. 2000) (ordered published 22 March 2000)

The court of appeals, in a decision written by Judge Schudson, affirmed the defendant's convictions for burglary and theft. The defendant raised two issues. First, he argued that error occurred when the trial judge deferred and later denied his motion to dismiss at the close of the state's case-in-chief. Case law saddles the defendant with a difficult choice where the trial judge denies the defense's motion to dismiss at the close of the state's case. The defense can elect to offer no evidence whatsoever and thereby preserve the original motion, or it can offer evidence but at the cost of having the appellate court review the evidentiary sufficiency of the entire record. In this case the judge exacerbated the defendant's dilemma by deferring the ruling; thus, the defense had to elect whether to offer evidence without knowing how the trial judge ruled on the motion.

The court of appeals suggested that "when the defense moves to dismiss at the close of the state's case, the better practice is for trial courts to decide the motion at the close of the state's case." (Emphasis original.) If the judge defers, ordinarily the defense should object to the deferral. The court of appeals agreed to the defense's contention that in this case it should examine only evidence presented by the state. Applying the standards governing the review of circumstantial evidence, the court held that the evidence was sufficient.

Second, at trial another man came forward and "confessed" that he had committed the offenses and had enlisted the defendant's unwitting assistance. To impeach the witness's credibility, the state assailed his bias. Not only did the witness and the defendant know one another, but the state also offered evidence relating to the witness's parole eligibility date, which strongly suggested that he had nothing to lose by claiming sole responsibility. Case law amply supported this theory of impeachment.

Confessions - Miranda - Suppression Orders - "Fruitless" Tree

State v. Yang, 2000 WI App 63 (filed 8 Feb. 2000) (ordered published 22 March 2000)

Yang was charged with numerous crimes arising out of a shooting in Brown County. The trial court suppressed Yang's incriminating statements and other evidence. The state appealed.

The court of appeals, in a decision written by Judge Hoover, affirmed in part and reversed in part. While in custody Yang made various incriminating statements without being properly advised of his Miranda rights. He later made other incriminating statements after being duly advised in accordance with Miranda. The earlier Miranda violation did not fatally infect the second set of statements. For suppression purposes, Miranda is a "fruitless" tree. So long as the first statement was voluntarily given - which it was - any Miranda defect did not taint the second set of statements obtained in compliance with Miranda.

More significantly, the court of appeals addressed whether physical evidence (in this case, a gun) should be suppressed as the fruit of an earlier Miranda violation. Examining the case law, the court held that the "logical extension" of prior cases "is that the 'fruit of the poisonous tree' doctrine does not apply to physical evidence discovered as the result of a statement obtained in violation of Miranda's prophylactic rules, as opposed to a constitutional infringement." (The court's holding "overrules" dicta in several earlier cases that are cited in the opinion.) In short, a Miranda violation results in the suppression of any statements made during the course of that interrogation; later statements obtained in compliance with Miranda as well as physical evidence obtained as a result of the earlier (defective) statement are not suppressed.

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