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    Wisconsin Lawyer
    July 01, 2002

    Supreme Court Digest

    Daniel Blinka; Thomas Hammer

    Wisconsin Lawyer
    Vol. 75, No. 7, July 2002

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    * *

    Appellate/Criminal Procedure

    Truth-in-sentencing - Application of Penalty Enhancement Statutes - Court of Appeals' Decision Vacated

    State v. Jones, 2002 WI 53 (filed 24 May 2002)

    This case arose under Wisconsin's new truth-in-sentencing laws. The defendant was convicted of a Class E felony and it also was established that he was a habitual offender by virtue of a prior felony conviction. For the Class E felony, the defendant faced a maximum penalty of two years in confinement and, if that maximum were imposed, it could be followed by a maximum of three years of extended supervision for an overall term of imprisonment of five years. Because the defendant was a habitual criminal, that overall maximum term of imprisonment could be increased by up to six years. See Wis. Stat. § 939.62(1)(b).

    The circuit court imposed the maximum confinement and extended supervision penalties for the Class E felony and then increased them by adding three years to the maximum term of confinement and two years to the maximum period of extended supervision because the defendant was a habitual offender.

    The defendant appealed, arguing that Wis. Stat. section 973.01(2)(c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. Instead, the defendant urged, any penalty enhancement can be applied only to increase the term of confinement in prison.

    In a published decision, the court of appeals agreed with the defendant's position. It concluded that the statute's plain language does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. Rather, any increase attributable to the enhancer may be applied only to increase the maximum term of confinement in prison. See State v. Jones, 2002 WI App 29 (summarized in the March 2002 issue of the Wisconsin Lawyer).

    The supreme court has ordered the court of appeals to withdraw this decision. The basis for the supreme court's action has nothing to do with the substantive merits of the court of appeals' decision. Rather, the supreme court concluded that the defendant's motion to voluntarily dismiss the appeal, which was filed before the court of appeals' decision was dated and filed, "operated to automatically dismiss his appeal with no further action needed from the court of appeals." (¶ 8) "We conclude that this situation is controlled by State v. Lee, 197 Wis. 2d 959, 542 N.W.2d 143 (1996), where this court held that the court of appeals may not refuse to dismiss an appeal when an appellant notifies the court of voluntary dismissal of the appeal pursuant to Wis. Stat. § (Rule) 809.18 prior to the court of appeals' issuance of a decision on the merits of the appeal." (¶ 6) Accordingly, said the supreme court, the court of appeals' decision in this matter must be withdrawn.

    Criminal Law

    Disorderly Conduct - Anonymous Mailings - "Disturbance"

    State v. Schwebke, 2002 WI 55 (filed 29 May 2002)

    Defendant Schwebke was convicted of disorderly conduct for sending "anonymous" mailings on six occasions to three different people, contrary to Wis. Stat. section 947.01. The court of appeals affirmed his conviction.

    The supreme court, in an opinion written by Justice Bablitch, also affirmed. The court held that the disorderly conduct statute "does not necessarily require disruptions or disturbances that implicate the public directly. The statute encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that this disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well." (¶30) "Personal annoyance" alone is not sufficient. The court was unconvinced that the Legislature did not intend to include "harassing" conduct within section 947.01. Finally, the record supported the conviction. The mailings were disturbing because they evinced the defendant's "obsessive" observations of "every aspect" of the victims' lives. (See ¶42)

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. The dissenters fully agreed that Schwebke's behavior was traumatically disturbing, but argued that the victims (and the state) should have resorted to remedies other than section 947.01, which was too broadly construed by the majority.

    (See ¶54)

    Exposing Minors to Harmful Materials - No Contest Pleas

    State v. Trochinski, 2002 WI 56 (filed 30 May 2002)

    The defendant, Trochinski, pleaded no contest to one count of exposing a minor to harmful materials, contrary to Wis. Stat. section 948.11(2). The charges arose when the defendant gave nude pictures of himself to a 17-year-old girl who worked at a gas station that he frequented. The nude pictures, 10 in all and including one with his penis exposed, were in an envelope and accompanied by a photocopied letter from Playgirl magazine indicating that the photos would be published in a forthcoming issue. He also wrote a personal letter that "invited" the girl to "review the photographs." Trochinski's no contest plea followed his unsuccessful attack on the statute's constitutionality. In later seeking post-conviction relief, he argued that he should be permitted to withdraw his plea because he did not understand the term "harmful" as used in section 948.11(2). This claim also was rejected. The court of appeals also rejected Trochinski's attacks against the statute and his claim that his plea should be withdrawn.

    The supreme court, in a decision by Justice Crooks, affirmed. First, the court concluded that Trochinski "failed to establish a prima facie case that his plea was involuntary." (¶3) Nothing in the Bangert case (1986) or its progeny "suggests that a circuit court is required to do as Trochinski suggests here - describe the elements of the offense and ensure the defendant specifically understands how the State must prove each element." (¶22) Rather, Trochinski's knowledge of the elements was adequately established by the signed plea questionnaire, where the elements were "clearly laid out," and the plea colloquy during which the court "summarized the elements." (¶23) All that mattered was that Trochinski "understood and acknowledged that the photos were harmful to children." The court rejected his contention "that he did not understand the meaning of `harmful to children' because he did not understand that the jury would decide whether the photos were inappropriate for [the victim]." The Legislature had made this determination by providing that a child was anyone under 18. (¶24) In sum, the Bangert procedures provide that "a valid plea requires only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements." (¶29)

    Second, the court upheld the facial constitutionality of section 948.11(2) based on "settled law." The court declined Trochinski's invitation to reverse several prior cases, yet reiterated "that the personal contact between the perpetrator and the child-victim is what allows the state to impose on the defendant the risk that the victim is a minor." (¶39)

    Chief Justice Abrahamson, joined by Justice Bablitch, dissented on the ground that a sufficient factual basis did not support the finding of guilt. The dissent did not view the main issue as whether the plea was "voluntary."

    Criminal Procedure

    Discovery - Statements of the Defendant

    State v. DeLao, 2002 WI 49 (filed 7 May 2002)

    Prior to trial, the defendant filed a discovery demand, specifically demanding that the state provide her with written summaries of any oral statements she had made. On the second day of trial, after the state had rested, the district attorney advised the trial court that the state had in its possession statements made by the defendant, which had not been disclosed to the defense. The prosecutor further indicated an intention to use these statements to impeach the defendant if she testified. The prosecutor explained to the court that the state's primary investigator in the case had just that day made the prosecutor aware of the defendant's statements, although the investigator was aware of those statements prior to trial. Over objection, the circuit court permitted the district attorney to cross-examine the defendant using the statements.

    In a published decision, the court of appeals reversed. See 2001 WI App 132. It concluded that a discovery violation occurred when the state failed to provide the defense with the statements in the possession of the chief investigator. The appellate court further concluded that no good cause existed for the withholding of the evidence and it remanded the case for a new trial.

    In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals. The court began its analysis by observing that the discovery statute requires that, upon demand, the state must provide to the defense, within a reasonable time before trial begins, a written summary of the defendant's oral statements that the prosecutor plans to use at trial. See Wis. Stat. § 971.23(1)(b). Under section 971.23, the state's discovery obligations may extend to information in the possession of law enforcement agencies but not personally known to the district attorney. "Put another way, under certain circumstances, the knowledge of law enforcement officers may be imputed to the prosecutor." (¶ 21) However, the prosecutor's obligation to find out about information obtained by investigative agencies is not without limits. "The State is charged with knowledge of material and information in the possession or control of others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecutor's office." (¶ 24)

    Even though the chief investigator was aware of the statements, the state argued on appeal that the failure to turn them over to the defense was not a violation of the discovery statute because the statute speaks in terms of furnishing material "which the district attorney plans to use in the course of the trial." The state argued that the prosecutor did not know of these statements before trial and thus could not have planned to use them at trial.

    The supreme court rejected this argument. It concluded that the language of the statute embodies an objective standard. As applicable to this case, the question is whether a reasonable district attorney exercising due diligence would have known of the defendant's statements and, if so, whether a reasonable prosecutor would have planned to use them in the course of trial. The supreme court concluded that on the facts here, a reasonable prosecutor should have known of the statements and would have planned to use them.

    The court also rejected the state's argument that it had good cause for failing to disclose the statements. The state's assertion that it had acted in good faith was insufficient to show good cause for its failure to disclose. Some explanation in addition to good faith is necessary and the state did not provide that explanation. Said the court, "the fact that the prosecutor in [the defendant's] case did not actually know of the evidence is no explanation at all. In short, the State has failed to demonstrate good cause for its violation of the discovery statute" (¶ 58)

    Lastly, the court concluded that, given the evidence in this case, the defendant was prejudiced by the admission of her statements at trial. Accordingly, the court affirmed the decision of the court of appeals reversing the conviction and remanding the matter for a new trial.

    Justice Prosser filed a dissenting opinion that was joined by Justice Sykes.

    Evidence - Crime Lab Report - Confrontation Right - Hearsay Exceptions

    State v. Williams, 2002 WI 58 (filed 6 June 2002)

    The defendant, Williams, was convicted of possession of cocaine with intent to deliver and several other charges. He claimed that his right to confrontation was violated by the admission into evidence of a state crime lab report to prove the presence of cocaine. The analyst who performed the tests did not testify; rather, the laboratory's "unit leader" provided supporting expert testimony. The court of appeals certified this case to the supreme court.

    The supreme court, in an opinion authored by Justice Bradley, affirmed the judgment. Since the case raised an issue of first impression, the court examined persuasive authority from other jurisdictions that made a "critical point": one must distinguish "between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others. In short, one expert cannot act as a mere conduit for the opinion of another." (¶19) Prevailing cases "teach that the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests." (¶20) On this record, the court found no violation of the confrontation right in light of the supervisor's qualifications and experience, "her close connections" to the tests that inculpated the defendant (she performed the "peer review"), and her expert opinion that the tested substance was cocaine.

    Williams next claimed that the supervisor's expert testimony was not admissible because the laboratory report on which it was based was inadmissible hearsay. First, the court concluded that Wis. Stat. section 907.03, and supporting case law, permits experts to base opinions on inadmissible evidence provided it is of a type reasonably relied upon by experts in the field in drawing inferences or opinions. Second, the court addressed the admissibility of the report under the "business records" exception to the hearsay rule, section 908.03(6). It held that the trial court's decision to admit the report under this hearsay exception was error. "[C]onsidering the statutory scheme and the rule that records prepared in anticipation of litigation generally do not fall within the business records exception to the hearsay rule, we determine that the state crime lab report prepared for Williams' prosecution was erroneously admitted as a business record under section 908.03(6)." (¶50) The error was, however, harmless.

    Finally, the trial court properly refused to introduce a third party's alleged exculpatory statement under the hearsay exception for statements against penal interest, section 908.045(4). In a nutshell, the defense failed to show that it exercised the due diligence necessary to demonstrate the declarant's "unavailability," as demanded by section 908.045(4). Nor did the exclusion of this evidence violate the defendant's constitutional right to present a defense. The record failed to reveal that the excluded evidence was "essential" to his defense. (The court also upheld the sufficiency of evidence supporting the conviction.)

    Involuntary Statements - Suppression - Witnesses

    State v. Samuel, 2002 WI 34 (filed 25 April 2002)

    The defendant, Samuel, was convicted of sexual assault, abduction, and interference with custody for conduct involving his relationship with a minor girl, Tisha, with whom he traveled outside Wisconsin for 13 months. Tisha made various statements to law enforcement officers that described her sexual relationship with the defendant. In pretrial motions, Samuel moved to suppress Tisha's statements to police on the ground that they were involuntary because of threats and coercion. The circuit court found that Samuel lacked standing to attack Tisha's statements. At trial the state called Tisha as a witness, but her testimony largely exculpated Samuel. On cross-examination the state introduced her prior, inculpatory statements made to police. The court of appeals reversed Samuel's conviction, ruling that "the standard for suppressing a defendant's involuntary statements should also apply to the suppression of involuntary witness statements." (¶13)

    The supreme court, in a decision written by Justice Bradley, reversed the court of appeals. Using the due process analysis as its "touchstone," the court held that the witnesses' statements should be subjected to a more demanding standard than a criminal defendant's. More precisely, police misconduct must be "egregious" in the sense that it "undermines confidence in the reliability of a witness's statements." (¶30) Among the factors to be considered are: "(1) whether a witness was coached on what to say; (2) whether investigating authorities asked questions blatantly tailored to extract a particular answer; (3) whether the authorities made a threat with consequences that would be unlawful if carried out; (4) whether the witness was given an express and unlawful quid pro quo; (5) whether the State had a separate legitimate purpose for its conduct; and (6) whether the witness was represented by an attorney at the time of the coercion or statement, ..."

    The first four factors weigh in favor of suppression, the latter two against it. (¶31)

    The court next addressed the applicable procedures. First, the defendant must bring a motion to suppress, which must allege sufficient facts to warrant an evidentiary hearing. If the motion papers are insufficient, a trial court may conduct a nonevidentiary hearing to determine if the defendant's initial burden has been met and there is a need for an evidentiary hearing. Second, at an evidentiary hearing the defendant bears the burden of producing evidence to establish a prima facie case of involuntariness. Once this burden is met, the state must persuade the judge by a preponderance of the evidence that the statement is voluntary under the standard set forth above. (¶¶ 35-39)

    On the record before it, the court concluded that "Tisha's statements were not derived from egregious police misconduct that would produce statements unreliable as a matter of law." (¶46)

    Justice Bablitch dissented and would have remanded the case because the record "raises serious questions as to the interrogation methods employed during the intake conference and immediately thereafter." (¶50)

    Expert Testimony - Right to Present Evidence

    State v. St. George, 2002 WI 50 (filed 8 May 2002)

    The defendant was convicted for sexually assaulting 5-year-old Kayla, whom he allegedly fondled after she crawled into bed with him and Kayla's mother. The assault occurred sometime during the night. Although Kayla reported the assault to her mother the next day and later repeated the story to a doctor and others, when called at trial Kayla denied that the fondling had occurred and testified that she had made up some of the events. The defendant denied that he had improperly touched Kayla. The court of appeals affirmed his conviction.

    The supreme court, in a decision authored by Chief Justice Abrahamson, reversed and remanded for a new trial. The defendant raised two issues. First, he claimed a constitutional right to present evidence that Kayla had engaged in sexual contact with another child. Applying a two-part test (see below), the court upheld the exclusion of such evidence on grounds of relevancy. Kayla's initial statements did not demonstrate "such precocious sexual knowledge that a jury would believe that some sexual contact with the defendant must necessarily have occurred." And without such an inference, there was "no reason for the defense to show that Kayla could have acquired sexual knowledge from prior sexual encounters" (¶26).

    As to the second issue, the trial court erroneously exercised its discretion by excluding testimony by a defense expert regarding recantation and interview techniques regarding children. Since the defendant was not attacking the constitutionality of Wis. Stat. section 907.02 or Wisconsin law regarding the admissibility of expert witness testimony, the court examined the scope of a defendant's constitutional right to present a defense. The court is required "to determine the accused's interest in admitting the evidence and to determine whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion `undermine[s] fundamental elements of the defendant's case.'"(¶53) The test, then, has two parts.

    Under the standard's first part, the defendant must show the following four factors: 1) The expert witness testimony met the standards of Wis. Stat. section 907.02 governing the admission of expert testimony; 2) the expert's testimony was clearly relevant to a material issue in this case; 3) the expert's testimony was necessary to the defendant's case; and 4) the probative value of the testimony of the defendant's expert witness outweighed its prejudicial effect. (¶54) The appellate record supported a finding of all four factors. The second part of the constitutional right addresses whether the defendant's right to present the proffered evidence "is nonetheless outweighed by the state's compelling interest to exclude the evidence." (¶55) The court found no such countervailing interest.

    Concurring, Justice Sykes wrote separately to "emphasize [her] concern about constitutionalizing the multitude of discretionary evidentiary decisions that occur on a daily basis in criminal trials in the circuit courts of this state." (¶76)

    Justice Crooks, joined by Justice Wilcox, dissented. They argued that the majority erroneously applied its own "erroneous exercise of discretion standard." (¶90)

    Wisconsin Sales Representative Act

    Wis. Stat. Section 134.93 - Corporations as Plaintiffs

    Industry-to-Industry Inc. v. Hillsman Modular Molding Inc., 2002 WI 51 (filed 17 May 2002)

    Industry-to-Industry Inc. (Industry) is a manufacturer's representative and Hillsman Modular Molding Inc. (Hillsman) is a Florida-based business that makes custom injection plastic parts. Industry had been Hillsman's Wisconsin representative since 1971. In 1999 Hillsman terminated its relationship with Industry. Thereafter Industry filed suit against Hillsman alleging that Hillsman failed to pay commissions on orders prior to August 1999 in breach of their contract and in violation of the Wisconsin Sales Representative Act (the act). See Wis. Stat. § 134.93.

    The circuit court granted partial summary judgment to Hillsman, concluding that Industry was not an "independent sales representative" as defined in the act and thus could not bring suit thereunder. The court of appeals reversed.

    In a decision authored by Justice Crooks, the supreme court affirmed the court of appeals. Pursuant to section 134.93(1)(b), an "independent sales representative" is defined as "a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission." The question on appeal was whether Industry, as a corporation, qualifies as a "person" within the meaning of the statute.

    The supreme court held that a corporation is a "person" within the meaning of the act. In so concluding, the court looked not only at the common understanding of corporations as "persons" in Wisconsin law, but also at Wis. Stat. section 990.01(26), which defines a "person" as specifically including corporations. The court found that applying this general statutory definition as well as the common understanding described above would not be contrary to the manifest intent of the Legislature. Further support for this conclusion was identified in the relevant language of the statute under construction.

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