Court of Appeals Digest

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

Civil Procedure

Frivolous Actions - Frivolous Appeals - Sanctions

Puchner v. Hepperla, 2001 WI App 50 (filed 31 Jan. 2001) (ordered published 28 Feb. 2001)

Since 1994 Puchner had filed 20 cases in the court of appeals relating to postdivorce disputes with his ex-wife. He prevailed in none of them and plainly exhausted the courts' patience. In a consolidated proceeding, the court of appeals per curiam held that Puchner's appeals were frivolous and remanded the cases to the circuit court for a determination of costs, fees, and reasonable attorney fees. The court also barred Puchner from "commencing future proceedings in this court and the circuit court arising from, relating to, or involving [his ex-wife] until the monetary sanction is paid in full."

In one case, Puchner's arguments had no basis in law. In the other, the court found his brief "filled with vindictive and scurrilous attacks upon the circuit court judge, other circuit court judges," his ex-wife, and her lawyer. The court ordered the brief stricken, declined to reach the merits of the appeal, and found Puchner's appeal to be "frivolous" for the same reason. The court tailored the sanction to address Puchner's pattern of using litigation to harass and attack his ex-wife.

Criminal Procedure

Collateral Estoppel - Juror Bias - Discovery Violation - Prosecutorial Misconduct

State v. Guzman, 2001 WI App 54 (filed 17 Jan. 2001) (ordered published 28 Feb. 2001)

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the defendant's conviction on one count of endangering safety by use of a dangerous weapon and one count of "criminal gang solicitation while armed." The court addressed four issues.

Although the defendant had been acquitted of being a felon in possession of a firearm at an earlier trial, the state was not collaterally estopped from prosecuting the gang solicitation charges. The court agreed that the prior acquittal meant that the "State was estopped from arguing during the second trial that [he] was in possession of the gun at that time" (¶ 7). Other evidence, however, supported the conviction on the criminal gang solicitation charge. The court remanded the matter for resentencing on this count without consideration of the penalty enhancer for use of a dangerous weapon.

The court disposed of three other issues that turned largely on the record. First, the trial judge did not abuse his discretion by refusing to strike two jurors for cause. Neither juror was shown to be "biased" under the test set forth in recent case law. In particular, one juror's "physical infirmity" (a "bad back") did not somehow disqualify him from jury service in this case. Second, the trial court properly excluded a defense witness whose name had not been disclosed in a timely fashion. Although the defendant was aware of the witness's identity since the incident and trial counsel had spoken with him two weeks earlier, the defense failed to notify the state until the third day of the second trial. Third, any claim that prosecutorial misconduct occurred when the prosecutor addressed a penalty enhancer during closing argument was waived by defendant's failure to make a contemporaneous objection during the closing.

Other Act Evidence - Due Process - Independent Medical Examination

State v. Rizzo, 2001 WI App 57 (filed 20 Dec. 2000) (ordered published 28 Feb. 2001)

The court of appeals, in an opinion written by Judge Anderson, reversed defendant's convictions on three counts of second-degree sexual assault. The court addressed the admissibility of other act evidence and the defense's right to an independent medical examination when the state relies upon certain types of expert testimony.

First, the trial court did not abuse its discretion in admitting other act evidence, which consisted of prior incidents that were "remarkably similar" to the instant offense, even if they were somewhat remote in time. Second, reversible error did occur, however, when the state introduced expert evidence without providing the defense with an opportunity to conduct an independent examination.

Despite its pretrial promise that it was not going to offer such evidence, the state introduced expert testimony that was "tantamount to testimony offered to explain whether a victim's behavior is 'consistent'" with that generally observed in child sexual abuse victims (¶ 7). The state's reliance upon this Jensen-type evidence triggered the Maday rule, which "requires that a defendant be given the opportunity to discover the psychological condition of the victim in order to present meaningful evidence to counter the state's Jensen evidence" (¶ 8). According to the record, the state had "reneged" on its earlier assurance to the trial court that it would not offer Jensen evidence, which "thwarted the trial court's exercise of discretion." At several points, the court of appeals reiterated that Maday is not an "empty holding" (¶ 13).

Search and Seizure - Warrantless Entry of Third-party's Home to Arrest on Civil Capias - Exigent Circumstances

State v. Kryzaniak, 2001 WI App 44 (filed 17 Jan. 2001) (ordered published 28 Feb. 2001)

One Joshua Anderson, the subject of a civil capias, was seen in the visitation area of the county jail. A deputy asked him to wait within a partially secure area of the facility. However, when another person was released from that area, Anderson followed him out and left the jail. Thereafter a daylong search for Anderson was conducted in the county. When deputies learned that Anderson associated with one Wahlberg, they went to the latter's address at approximately 9 p.m. that day. Wahlberg lived in a multilevel residence that was occupied by two families; the defendants resided alone on the lower level.

While the deputies were there, a young man generally fitting the description of Anderson exited the rear door of the home. A deputy identified himself and told the young man not to move, but the young man ignored the order and reentered the building, locking the door behind him. A deputy thereafter kicked open the door and entered the residence. The deputy who entered was not certain that the young man was, in fact, Anderson, and did now know who resided in or owned this home. The deputy had no warrant to arrest Anderson, no warrant to enter the home, and no consent from any person to be on the premises. The deputy claimed that during the course of his search for Anderson, he observed drug paraphernalia and what he thought could be marijuana in the defendants' lower level residence. These observations formed the basis for a search warrant that ultimately was issued for the premises.

The defendants moved to suppress the evidence recovered from their residence, arguing that their Fourth Amendment rights were violated when the deputy sheriff entered their home without consent, without a warrant, and in the absence of exigent circumstances. In a decision authored by Judge Snyder, the court of appeals agreed.

The court rejected the state's argument that exigent circumstances, specifically the "hot pursuit" of Anderson, justified the deputy's entry into the defendants' home. There was no immediate or continuous pursuit of a suspect in this case from the scene of a crime. There was no evidence that any officer pursued Anderson from the jail when he left. Said the court, there was no pursuit here, only a daylong investigation of Anderson's whereabouts. The police were at the defendants' residence as a result of an investigation, not a police chase. Further, once police were at the scene of the residence, the retreat of the young man into the house, when it was unknown whether he was, in fact, Anderson, did not create exigent circumstances.

The court expressed its reluctance to find exigent circumstances when the underlying offense for which there is probable cause to arrest is relatively minor. At the time of the entry into the defendants' home, there was no arrest warrant for Anderson nor were there any outstanding criminal charges, only a civil capias. A civil capias does not rise to a level that would implicate exigent circumstances.

Finally, the court noted that even if there had been a warrant for Anderson's arrest, the deputy needed a search warrant to enter the defendants' apartment to look for Anderson and execute the arrest warrant; an arrest warrant is insufficient legal authority to enter the home of a third party to conduct a search.

Search and Seizure - Traffic Stops - Prolonged Detention Held Unlawful - Drug Evidence Suppressed

State v. Gammons, 2001 WI App 36 (filed 11 Jan. 2001) (ordered published 28 Feb. 2001)

Police stopped a car in which the defendant was a passenger because it did not have a rear license plate. After it was determined that the vehicle had a temporary registration sticker, the officer asked the driver if there were any drugs in the vehicle and the driver responded that there were not. The officer asked for permission to search the vehicle and the driver refused. The officer then told the driver that he would be getting his police dog out of the squad to walk around the vehicle and explained that if the dog detected any narcotics, the vehicle would be searched. The driver then told the officer to go ahead and search the vehicle.

After additional officers arrived on the scene, the police ordered the defendant passenger out of the vehicle. An officer patted the defendant down and found marijuana on his person. The defendant struggled with the officers before or during the pat down and the police thereafter found cocaine in the area outside the vehicle where the defendant had been positioned.

The defendant subsequently was charged with various drug offenses and he moved to suppress all evidence seized by the police during the stop. The trial court denied the motion. The court of appeals, in a decision authored by Judge Dykman, reversed. While the officer's initial questions about drugs may have been permissible, no additional suspicious factors suggesting drug activity developed from the driver's responses. Therefore, the officer had no basis to continue to detain the passenger and the others after the driver stated that the men did not have any drugs and denied the officer's first request to search the vehicle. At that point, the Fourth Amendment required the officer to terminate the stop and allow the group to continue about their business. Instead, the officer continued to detain the vehicle and told the driver he was going to get a police dog to sniff the car. At that moment, the stop was transformed into an unlawful detention, and the state cannot rely upon the driver's subsequent consent to search to justify the police actions.

Accordingly, the drug evidence the police gathered from the subsequent searches was obtained in violation of the defendant's Fourth Amendment rights and should have been suppressed.

Miranda - "Routine Booking Questions" Exception

State v. Bryant, 2001 WI App 41 (filed 31 Jan. 2001) (ordered published 28 Feb. 2001)

Police executed a search warrant for drugs at a residence. The warrant listed the defendant as residing at the address based upon information the investigating detective obtained when he checked motor vehicle registration records for the van that was seen parked outside of the residence. The van was registered in the defendant's name and listed the address as his residence. After the warrant was executed and cocaine found, the defendant (who was present during service of the warrant) was arrested and taken to the detective bureau of the sheriff's department for interrogation.

The detective testified that it was his practice to complete the department's arrest report before giving a suspect Miranda rights and beginning an interrogation. Following this practice, he asked the defendant for his name and address. The defendant responded that he lived in the apartment that was the subject of the search warrant and that he had just moved there from Illinois. The detective asked the defendant if he had a record and the defendant replied that he was on parole in Illinois for a drug offense.

These questions were asked before the defendant was advised of his Miranda rights. He thereafter sought to suppress the answers. The circuit court held that furnishing his name and address and volunteering that he had just moved from Illinois were admissible under the "routine booking question" exception to Miranda. The circuit court further ordered that the statements regarding being on parole should be suppressed because any questions concerning prior criminal record would be the result of interrogation.

The defendant acknowledged that Wisconsin has adopted the "routine booking question" exception to Miranda, permitting law enforcement to ask suspects about biographical data. See State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994). However, he asserted that it did not apply under the facts of this case because he was charged with possessing cocaine with intent to deliver within 1,000 feet of a school zone and the biographical questions were designed to elicit incriminating statements to establish that he had dominion and control over the cocaine at his residence.

The court of appeals, in a decision authored by Judge Anderson, affirmed the circuit court. The "routine booking question" exception is limited to routine questions asked to assist in the gathering of background biographical data. See United States v. Booth, 669 F.2d 1232 (9th Cir. 1981). To qualify for application of the exception, the questions must be asked by an agency ordinarily involved in booking suspects, must be asked during a true booking, and must be asked shortly after the suspect has been taken into custody. See United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir. 1983). Police may not, however, use routine biographical questioning as a guise for obtaining incriminating information. Even questions that are routine must be preceded by Miranda warnings if they are intended to produce answers that are incriminating. The test of whether questioning constitutes interrogation and is not entitled to the routine booking question exception is if, in light of all the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response. See Booth, supra.

The court concluded that in this case, when the detective asked the defendant biographical questions at the detective bureau, he was not engaged in "interrogation." Nothing in the record supports a conclusion that the question about the defendant's residence was intended to elicit an incriminating response. The court noted that the detective already had sufficient evidence connecting the defendant to the residence at the time booking was done. The court concluded that the circuit judge properly applied the "routine booking question" exception to the biographical questions asked of the defendant and properly admitted his responses into evidence.

Family Law

Custody - Travel With Children to Country That Is Not a Signatory to the Hague Convention on Child Abduction

Long v. Ardestani, 2001 WI App 46 (filed 25 Jan. 2001) (ordered published 28 Feb. 2001)

The husband was born in Iran and moved to the United States in 1978. He and his wife were married in 1980 and had four children. They divorced in 1999. The parties have joint legal custody of the children. Subsequent to the divorce, the husband advised his ex-wife that he intended to take the minor children to Iran to visit. She responded with a motion for an order prohibiting removal of the minor children from the United States. After considerable litigation, the circuit court denied the motion.

Among several issues on appeal was a request by the wife for a ruling that, as a matter of law, if a parent objects to the other parent taking their children to visit a country with which the United States does not have diplomatic relations and which is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction, the parent may not take the children to that country to visit.

In a decision authored by Judge Vergeront, the court of appeals declined to adopt the proposed ruling of law because it concluded that the existing standard of the best interests of the child, applied by trial courts in the exercise of their discretion, already allows for full consideration of all relevant concerns.

There was also an issue in this case as to whether the circuit court improperly placed the burden of proof on the wife, rather than on her ex-husband, to prove that he should be prohibited from taking the children to Iran. The general rule is that the party seeking judicial process to advance a position carries the burden of proof. The appellate court concluded that, when parents have agreed in the divorce stipulation, as they did in this case, that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of proof - both the burden of producing evidence and the burden of persuading the court that prohibiting the trip is in the children's best interests.

Although the guardian ad litem urged the court of appeals to adopt a different rule when the trip is to a country that is not a signatory to the Hague Convention, the guardian provided no case authority for such a rule and the court did not adopt one.

Insurance

Coverage - Notice of Lawsuit

Town of Mount Pleasant v. Hartford Accident and Indemnity Co., 2001 WI App 38 (filed 17 Jan. 2001) (ordered published 28 Feb. 2001)

Hartford Insurance covered the town under policies in effect from 1979 through 1982. In 1995 the town was sued on various claims which it settled in April 1998. The town then demanded that Hartford Insurance reimburse it for settlement costs, fees, and other disbursements, which the insurer declined to pay. (Hartford Insurance had represented an unrelated defendant in that earlier litigation.) The circuit court later dismissed the lawsuit against Hartford Insurance because the town had not properly tendered its claim and thus failed to provide adequate notice.

The court of appeals, in an opinion written by Judge Anderson, affirmed. At issue was the interpretation of case law which the town contended "places the obligation upon the insurer to search its records and to clarify with every party that was or is an insured whether it desires the protection of the policy" (¶ 7). The court held that the case law stands "for the proposition that notice from the insured does not have to meet technical requirements in order to trigger the duty of the insurer to defend; if an insurer is made aware of a lawsuit against one of its insured, the burden is on the insurer to clarify the needs of the insured. Unlike [the earlier cases], Hartford did not know the identity of its insured nor did it know that there was a claim filed against its insured." (¶ 12) In short, Hartford did not acquire any duty to defend: the law does not hold that "notice to an insurance company from one of its insureds in a multi-party lawsuit is notice from any other of its insureds in the same lawsuit."

Juvenile Law

Delinquency Actions - Consent Decrees - Revocation of Court's Authority When Decree Expires

State v. Sarah R.P., 2001 WI App 49 (filed 30 Jan. 2001) (ordered published 28 Feb. 2001)

A delinquency petition was filed charging the juvenile with shoplifting. The state and the juvenile entered into a consent decree that was to expire on Dec. 8, 1999. The decree included a curfew and a condition that the juvenile not engage in further law violations. On Dec. 1, 1999, the state filed a petition to vacate the consent decree, alleging that the juvenile violated the curfew and had committed a theft. On Dec. 21, 13 days after the consent decree was to have expired, the trial court held a hearing on the state's petition to vacate the decree. Ultimately, the court did enter an order vacating it.

The juvenile appealed, contending that the juvenile court erred when it vacated a consent decree after the decree's expiration date. In a decision authored by Judge Hoover, the court of appeals agreed, holding that the juvenile court's authority to adjudicate the juvenile as delinquent was revoked when the consent decree expired. Relying upon a case construing an earlier but identical statute to Wis. Stat. section 938.32(3), the appellate court concluded that if the juvenile court did not find a consent decree violation before the decree expired, it lost jurisdiction to do so. See In re Leif E.N., 189 Wis. 2d 480, 526 N.W.2d 275 (Ct. App. 1994). Accordingly, the court of appeals reversed the dispositional order and remanded the matter to the juvenile court with directions to enter an order dismissing the original delinquency petition with prejudice.

Motor Vehicle Law

Multiplicity - Charging OWI Felony and Misdemeanor OWI With Injury

State v. Smits, 2001 WI App 45 (filed 17 Jan. 2001) (ordered published 28 Feb. 2001)

The defendant and a passenger were injured when the defendant lost control of his motorcycle. He subsequently was charged with operating a motor vehicle while under the influence of an intoxicant (OWI) and with operating a motor vehicle with a prohibited alcohol concentration (PAC). These were alleged to be sixth offenses and thus were felonious in nature. The defendant also was charged with causing injury to another person while operating while under the influence and while having a prohibited alcohol concentration, which are misdemeanor offenses.

The defendant entered pleas of no contest to the misdemeanor injury offenses and the circuit court accepted his pleas and found him guilty. He then moved to dismiss the OWI and PAC charges on double jeopardy grounds. The circuit court granted the motion.

The court of appeals, in a decision authored by Judge Peterson, reversed the circuit court. Rejecting the defendant's multiplicity attack on this prosecution, the court concluded that there is no multiplicity between OWI and the injury-related OWI, and between the PAC violation and the injury-related PAC offense. This is because the statutes each require proof of a fact for conviction that the others do not. For example, OWI and PAC contain elements requiring operation of a "motor vehicle," whereas the injury offenses require proof of operation of a "vehicle." These are not identical terms and the definition of "motor vehicle" is more restrictive than that used to describe a "vehicle." The court also found that the PAC charge has an additional element that injury-related PAC does not, specifically the PAC charge includes proof of prior convictions to establish the appropriate PAC level whereas injury-related PAC does not require proof of prior convictions.

The court also concluded that, given the divergence of elements as described above, the presumption is that the legislature intended to permit multiple convictions and punishments. This presumption may be rebutted only if other factors clearly indicate a contrary legislative intent. The court was unable to identify any such contrary intent.

There was also an issue in this case as to whether the OWI and PAC felonies were lesser included offenses of the misdemeanor injury offenses. The appellate court concluded that they were not. A lesser included offense must be both lesser and included. Applying the penalty analysis to the present case, the OWI and PAC as sixth offenses are felonies that carry greater penalties than the misdemeanor injury offenses. As a result, OWI and PAC as sixth offenses are not lesser included crimes of injury-related OWI and PAC.

Implied Consent Statute - Due Process Attack on Statute

State v. Nord, 2001 WI App 48 (filed 17 Jan.) (ordered published 28 Feb. 2001)

The defendant launched a constitutional attack on the Wisconsin implied consent law. See Wis. Stat. § 343.305. He contended that the statute misleads an accused by overstating the consequences of refusing to take the test and understating what may occur if the test shows a prohibitively high blood alcohol level. This he claimed violated his right to due process. The circuit court agreed and suppressed the blood alcohol results that had been obtained from the defendant.

The court of appeals, in a decision authored by Judge Hoover, reversed. First, the court concluded that the statute does not overstate the consequences for refusing to submit to evidentiary testing. A person is warned that if there is a refusal to take the chemical test, the person's operating privilege will be revoked and he or she could be subject to other penalties. The defendant argued that the only penalty is license revocation and that the statutory warning improperly adds that an accused "will be subject to other penalties."

The court agreed with the state that there are, in fact, several other penalties for refusing to submit to chemical testing. If it is determined that the person improperly refused, he or she may be ordered to submit to and comply with an assessment of alcohol usage and the development of a driver safety plan. Further, if the person improperly refuses a test and has a specific number of prior alcohol-related convictions or license suspensions or revocations, ramifications can include vehicle seizure, immobilization, and so on. In sum, the appellate court agreed with the state that the statutes identify several consequences beyond license revocation that may result if an accused refuses the test.

Secondly, the court rejected the defendant's argument that statutory warnings understate the potential consequences for submitting to the chemical test for intoxication. Arrested suspects are told that if any test shows more alcohol in their system than the law permits while driving, the operating privilege will be suspended. The suspect also is told that test results or the fact that there was a refusal of testing can be used against the suspect in court. The defendant complained that the statute does not inform the accused that he or she may face imprisonment if the alcohol in the accused's system exceeds the legal limit. The court of appeals deemed it reasonable to conclude that "the concept of evidence being used against one in court would be perceived by the average citizen as implicating the specter of incarceration, among other consequences" (¶ 13). It was therefore satisfied that the statutory warning does not impermissibly understate the potential consequences for submitting to a chemical test for intoxication.

Torts

Immunity - Ministerial Acts

Rolland v. County of Milwaukee, 2001 WI App 53 (filed 5 Dec. 2000) (ordered published 28 Feb. 2001)

Rolland, who rides a motorized handicapped scooter, was injured while riding in a county-owned bus. Rolland sat in the scooter which suddenly tipped over as the bus turned. Her complaint alleged that the bus driver had failed to adequately secure the scooter as required by county transportation guidelines. The bus company appealed from a denial of its motion for summary judgment based on immunity, as provided by Wis. Stat. Section 893.80(4).

The court of appeals, in an opinion written by Judge Fine, affirmed. Although the trial judge found that the bus company had a ministerial duty to properly secure the scooter, the court affirmed on a different ground. The court held that "how a driver secures a passenger, or when the driver should seek assistance from a dispatcher, is discretionary and not ministerial" because they require the exercise of judgment (¶ 11). Rather, the record raised "an issue of material fact: namely whether the driver ignored his mandatory duty not to drive the bus with a wheelchair or scooter passenger aboard unless the passenger was secured" (¶ 11).