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    Wisconsin Lawyer
    June 01, 2011

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 6, June 2011


    Criminal Evidence

    Hearsay – Confrontation – Dying Declarations – Prior Inconsistent Statements

    State v. Beauchamp, 2011 WI 27 (filed 3 May 2011)

    The defendant was convicted of first-degree intentional homicide. At trial the state introduced statements made by the victim, shortly before his death, to an ambulance driver and a police officer. Those statements were relevant to proving the defendant’s identity as the shooter. Over hearsay and confrontation objections, the trial court admitted the hearsay under the dying-declarations exception. The state also called several other witnesses who had told police that the defendant was the shooter. At trial, however, the witnesses changed their stories. The state then introduced their prior inconsistent statements, in which they identified the defendant to police officers. In a published decision, the court of appeals affirmed the defendant’s conviction. See 2010 WI App 42.

    The supreme court affirmed in a majority opinion authored by Justice Crooks that addresses these important hearsay and confrontation issues. First, the court held that the admission of hearsay under the dying-declarations exception is consistent with the hearsay rule and the confrontation right. Although the U.S. Supreme Court has yet to “give its explicit blessing to the dying declaration,” the Wisconsin Supreme Court found the record before it sufficient (¶ 5).

    The Wisconsin Supreme Court, “like every state court that has considered the dying declaration exception since Crawford [v. Washington, 541 U.S. 36 (2004)], take[s] a position consistent with the language of Crawford and Giles [v. California, 128 S. Ct. 2678 (2008)] and decline[s] to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder” (¶ 34). The court trenchantly observed that “aggressive impeachment” is the solution to dying declarations that are alleged to be inaccurate or fabricated (see ¶ 5).

    The court also rebuffed the argument that prior inconsistent statements must satisfy more than the foundational requirements of the evidence rules, namely, “that the declarant be present and available for cross-examination,” and that the prior statement be inconsistent with the witness’s trial testimony. Essentially, the defense contended that due process required something more, such as the multifactor test first elaborated on in Vogel v. Percy, 691 F. 2d 843 (7th Cir. 1982) and then quickly forgotten. The court was “unpersuaded” and pointedly “declined the invitation to reformulate Wisconsin’s standard on this question” (¶ 43).

    Chief Justice Abrahamson concurred. She found that the victim’s statements to the ambulance driver were nontestimonial and hence outside Crawford’s domain. His statements to the police officer presented a “closer call” but any error was harmless (see
    ¶ 50).

    Criminal Procedure

    Evidence – New Trial in the Interest of Justice

    State v. Burns, 2011 WI 22 (filed 26 April 2011)

    Burns was charged with sexually assaulting a child under age 16, his niece S.B. She had also allegedly been sexually assaulted by her grandfather. Both Burns and the grandfather were eventually convicted in separate proceedings. Burns was tried first. At Burns’ trial the judge barred any reference to S.B.’s allegations against the grandfather. The issues in this case revolve around whether the exclusion of that evidence prevented the real controversy from being tried, chiefly as it related to S.B.’s credibility. The court of appeals affirmed Burns’ convictions.

    The supreme court affirmed in a majority opinion authored by Justice Roggensack. The central issue was whether the court should use its discretionary-reversal power in the interest of justice because 1) the real controversy was not fully tried or 2) it is probable that justice miscarried (see ¶ 24). “Burns argues that he is entitled to a new trial in the interest of justice pursuant to Wis. Stat. § 751.06. We agree with the court of appeals that the real controversy here was whether S.B. truthfully alleged that Burns sexually assaulted her.”

    Burns contended that the real controversy had not been tried because 1) S.B. made a misleading statement that implied that Burns, and not her grandfather, had taken her virginity; 2) the jury did not hear evidence of the grandfather’s earlier assaults of S.B.; and 3) the prosecutor’s closing arguments were improper (see ¶ 26). The court rejected all three grounds in a necessarily fact-intensive analysis. It was satisfied that S.B.’s “virginity testimony did not so cloud the critical issues of whether S.B. lied about what Burns did” that a new trial was justified (¶ 43). Evidence of the grandfather’s assaults was inadmissible under the rape-shield law and its exceptions. And the prosecutor’s closing argument “did not muddle the jury’s understanding of the evidence before them” (¶ 52). Finally, the “totality of the evidence” did not warrant a new trial (see ¶ 54).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented. S.B.’s testimony was the central issue. “The State’s case focused on buttressing the credibility of the accuser, especially through expert testimony describing the reaction of a sexual assault victim. Burns’ case relied heavily on impeaching the credibility of the accuser and presenting an alternative story for the events in the time period in question. Burns was not able to introduce evidence relating to the accuser’s allegations of the grandfather’s conduct that would have called into question the strength of the State’s case” (¶ 59).

    Interrogation – Right to Counsel

    State v. Forbush, 2011 WI 25 (filed 29 April 2011)

    The state of Wisconsin charged Forbush with attempted second-degree sexual assault and false imprisonment; a warrant was issued for his arrest. He was subsequently arrested in Michigan where, assisted by an attorney he had retained for these charges, he made a court appearance. On the advice of counsel, Forbush waived extradition and was returned to Wisconsin. Once back in Wisconsin, the police advised him of his Miranda rights, which he waived; in the interrogation that followed, he made potentially incriminating statements. He thereafter was taken to court for his initial appearance.

    Before trial, Forbush moved to suppress his statements, claiming that because he was represented by counsel and had been formally charged before the interrogation, his statements were obtained in violation of the Sixth Amendment right to counsel and its counterpart under the Wisconsin Constitution. The circuit court found that law enforcement officers knew Forbush was represented by counsel on the pending charges, and the court concluded that the state had violated Forbush’s Sixth Amendment right to counsel. The circuit court granted Forbush’s motion, barring the state from introducing Forbush’s statements to police.

    In a published decision (2010 WI App 11), the court of appeals reversed the suppression order. It concluded that the circuit court’s holding was based on State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (a decision in which the supreme court “suppressed a defendant’s incriminating statements under the Sixth Amendment, concluding that a presumption existed that the defendant had invoked his right to counsel when (1) the defendant had been charged; (2) the defendant had counsel; and (3) law enforcement officers were aware that the defendant had counsel” (¶ 62)). However, the court of appeals found that Dagnall was effectively overruled by the U.S. Supreme Court in Montejo v. Louisiana, 129 S. Ct. 2079 (2009) (a decision that was rendered after the circuit court suppressed Forbush’s statement and that Justice Crooks characterized as holding that “retaining or appointing counsel does not, by itself, serve to invoke the Sixth Amendment right to counsel prohibiting a subsequent police-initiated interrogation” (¶ 118)); accordingly, the court of appeals reversed the suppression order.

    The supreme court reversed the court of appeals in a decision that generated a plethora of opinions. Although four justices voted to reverse, there was no majority decision and the reversing justices reached their conclusions through different avenues of analysis. Chief Justice Abrahamson, joined by Justice Bradley, concluded that the confession should be suppressed under the Wisconsin Constitution; she acknowledged that Montejo supersedes the Wisconsin Supreme Court’s interpretation of the Sixth Amendment in Dagnall (see ¶ 64) but she would use the reasoning and conclusions of Dagnall to conclude that the interrogation of Forbush violated the state constitution (see ¶ 79).

    Justice Roggensack concluded that in the factual context of this case, “Montejo does not sanction the interrogation that occurred”; she so concluded “because Forbush’s right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator’s questioning was initiated. I also conclude that the circuit court’s finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to ‘re-invoke’ his right to counsel when the investigator initiated interrogation” (¶ 56).

    Justice Prosser voted to reverse because this result is required under the controlling law (Dagnall) in effect at the time of the interrogation (see ¶¶ 92-93), but he acknowledged that Montejo “is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel” (¶ 116).

    Justice Crooks, joined by Justices Ziegler and Gableman, would have affirmed the court of appeals’ decision under the “clear mandate” in Montejo and would have overruled Dagnall. Said Justice Crooks, “I would affirm the court of appeals’ decision and remand this case for trial. In so doing I would make it clear that Dagnall is no longer the law in Wisconsin and hold that the Sixth Amendment does not prohibit law enforcement from questioning a charged and represented defendant, assuming Miranda warnings and a knowing, voluntary, and intelligent waiver. I would also hold that a defendant may invoke the Sixth Amendment right to counsel only through an unambiguous and unequivocal request for the assistance of counsel” (¶ 152).

    Justice Ziegler, joined by Justice Gableman, wrote as follows: “Because I would adhere to the long-standing principle that we follow the United States Supreme Court’s interpretation of the Sixth Amendment when interpreting the parallel provision, Article I, Section 7, of our state constitution, it is my view that this court is required to follow the Supreme Court’s clear decision in Montejo” (¶ 158) (citation omitted).


    Family Exclusion – Wrongful Death

    Day v. Allstate Indemnity Co., 2011 WI 24 (filed 29 April 2011)

    Emma, an 8 year old with a seizure disorder, drowned in a bathtub at the home of her father, Clinton, and her stepmother, Holly. Emma’s mother, Wendy, sought damages from Holly and her homeowner’s insurer for Emma’s death. In time, “the only remaining claims were the survival action advanced on behalf of Emma’s estate and Wendy’s claim for wrongful death” (¶ 17). The insurer, Allstate, argued that the claims were barred by a family exclusion in the policy. The circuit court granted summary judgment in favor of the plaintiffs.

    The court of appeals granted the insurer’s leave to appeal the nonfinal order and reversed the circuit court. See 2010 WI App 72. Both the survival claim and Wendy’s wrongful-death claim were excluded from coverage because Emma’s father, Clinton, “was entitled to half of any recovery on either claim” and thus was an “insured person” who fell within the family exclusion (see ¶ 21). Wendy filed a petition for review regarding the wrongful-death claim only (see ¶ 24).

    The supreme court reversed the court of appeals in a majority opinion written by Justice Bradley. “Based upon an examination of the language of the policy, the canons of insurance policy construction, and our case law, we conclude that Allstate has failed to meet its burden to demonstrate that the family exclusion unambiguously precludes coverage” (¶ 4). The court began by observing that the parties’ focus on public policy considerations “put the cart in front of the horse.” “Whether the family exclusion precludes coverage for Wendy’s wrongful death claim is a question of contract interpretation. The purpose underlying a family exclusion does not control our determination of whether the language of the family exclusion unambiguously precludes coverage for a claim. The answer to that question depends upon the language of the insurance policy” (¶ 35).

    The only claim before the court was Wendy’s wrongful-death claim. “It is undisputed that Wendy is not an insured under Allstate’s policy. Nevertheless, we agree with Allstate that ‘[t]he fact that Wendy Day is not an insured person under the policy will not save her wrongful death claim against Allstate if a benefit would accrue to an insured person[.]’ The language of the policy requires us to determine whether a benefit of coverage would accrue directly or indirectly to an insured person” (¶ 40).

    First, the court held that “Allstate has failed to meet its burden to demonstrate that the policy term ‘benefit’ unambiguously includes the contractual right to receive a defense or the contractual right to indemnification. The term is undefined in the policy. Allstate’s expansive definition is inconsistent with Wisconsin case law interpreting identical policy language. It is likewise inconsistent with how the term is used in the context of another policy provision. Finally, it would render policy language meaningless surplusage” (¶ 57).

    Second, the court addressed “whether any insurance proceeds will accrue directly or indirectly to an insured person as a result of Allstate’s coverage of Wendy’s claim” (¶ 58). The court distinguished wrongful death actions from a survival action (see ¶ 62). Case law clearly establishes that “the wrongful death statute does not provide that all members of a class always have a legal right to collect a portion of any wrongful death recovery. Rather, each beneficiary’s recovery for wrongful death may be independent from the recovery of any other beneficiary. This premise is made more evident in situations where the wrongful death beneficiaries are divorced”
    (¶ 72).

    The supreme court also held that “any language from [Bruflat v. Prudential, 2000 WI App 69, 233 Wis. 2d 523] suggesting that a wrongful death recovery must be distributed to all wrongful death beneficiaries is inconsistent with this court’s pronouncement [in a cited case], and it is withdrawn” (¶ 73). Here the court of appeals erred by “concluding that Clinton [Emma’s dad] would have a ‘legal right to collect a portion of the wrongful death award’” (¶ 74). “[I]t is apparent that under the facts of this case, no insurance proceeds will accrue to Clinton by virtue of Allstate’s coverage of Wendy’s wrongful death claim. Regardless of whether Wendy pursues a wrongful death claim and whether Allstate provides coverage, Clinton has a right to bring a claim for Emma’s wrongful death. Yet, a judgment in favor of Wendy does not entitle Clinton to any ownership of her recovery. If he remains a party to this action, Clinton will have to prove his own loss. It goes almost without saying that if the fact-finder awards Clinton any damages, Allstate will have no contractual obligation to indemnify those losses under the family exclusion”
    (¶ 75).

    Justice Ziegler dissented, joined by Justice Prosser and Justice Gableman. “While I have tremendous sympathy for the Day family, this court cannot rewrite an unambiguous family exclusion provision in order to cover a risk that Allstate did not contemplate and for which it did not receive a premium” (¶ 86).


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