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    Wisconsin Lawyer
    October 01, 2012

    Court of Appeals 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. 85, No. 10, October 2012

    Criminal Procedure

    DNA Surcharge – Circuit Court Discretion to Impose Surcharge

    State v. Simonis, 2012 WI App 84 (filed 28 June 2012) (ordered published 27 July 2012)

    Simonis was convicted of reckless endangerment and failure to comply with an officer's attempt to take him into custody. The sole issue on appeal was whether the circuit court properly exercised its discretion in ordering him to pay the DNA analysis surcharge pursuant to Wis. Stat. section 973.046(1g). Simonis contended that the circuit court did not properly exercise its discretion because the court's rationale was based on an impermissible consideration: the court's belief that Simonis might in the future commit a crime that would generate DNA analysis costs.

    In a decision authored by Judge Vergeront, the court of appeals concluded that "[section] 973.046(1g) does not authorize the circuit court to impose a DNA analysis surcharge for this reason. Instead, if Simonis commits a future crime in which there are costs for DNA analysis, payment of a surcharge to cover those costs will be a matter for the court in that case to decide, pursuant to the applicable statutes and case law" (¶ 1). [Editors' Note: The defendant was convicted of felonies as to which imposition of the DNA surcharge is a matter of the court's discretion.]

    Accordingly, the court of appeals reversed the portions of the conviction and the postconviction order relating to the DNA surcharge and remanded the matter for further proceedings. On remand the court may consider the factors outlined in State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, with respect to imposing the DNA surcharge (see ¶ 23). (The Cherry factors are "(1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent" (¶ 13).)

    The court of appeals also indicated that the circuit court may consider the holding of State v. Long, 2011 WI App 146, 337 Wis. 2d 648, 807 N.W.2d 12. The Long court concluded that "the taking of a DNA specimen, analyzing it, and putting it in the DNA database when a specimen has been ordered by the circuit court pursuant to Wis. Stat. § 973.047 is a proper consideration in imposing a surcharge – if a surcharge has not previously been paid based on those same costs" (¶ 23).

    Search and Seizure – Searches by Private Citizens – Prosecutorial Vindictiveness

    State v. Cameron, 2012 WI App 93 (filed 25 July 2012) (ordered published 29 Aug. 2012)

    Grana owned a home and shared the residence with Cameron. After Cameron was arrested for allegedly committing domestic violence and while he was still in custody, Grana found printed images of child pornography in boxes belonging to Cameron that were stored under the basement steps. She put these materials into a bag belonging to Cameron and then placed the bag inside her car. She also put her computer hard drive inside her car. Grana subsequently contacted the local sheriff's office and accompanied the responding deputy to her car, from which he retrieved the bag. The deputy examined the printed materials and also took the computer hard drive when Grana offered it to him. Subsequent forensic examination confirmed that 171 images of child pornography had been downloaded onto the hard drive.

    The state originally charged Cameron (the defendant) with 14 counts of possessing child pornography based on the printed images described above. The defendant rejected the plea offer the state extended. Thereafter the state added an additional series of child pornography charges based on images recovered from the computer hard drive.

    The defendant moved to dismiss the additional charges, claiming they resulted from prosecutorial vindictiveness; he contended that the prosecutor added the charges to punish him for maintaining his innocence and proceeding to trial on the original charges. He also moved on Fourth Amendment grounds to suppress the evidence recovered by the deputy as described above. The circuit court denied the motions. After a jury convicted the defendant on numerous counts, he appealed. In a decision authored by Judge Neubauer, the court of appeals affirmed.

    As to the claim of prosecutorial vindictiveness, the court began with the proposition that the filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness (see ¶ 13). Accordingly, the defendant had to show "actual vindictiveness motivated by some constitutionally impermissible consideration by the prosecutor. In order to establish actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights" (¶ 14) (internal quotations omitted).

    The court of appeals agreed with the circuit court that the defendant failed to establish such actual vindictiveness. "The record reflects that the prosecutor's decision to bring a second set of charges was based on an accumulation of evidence and her belief that this additional evidence would strengthen the State's case on the original charges" (¶ 20). The court also cited case authority for the proposition that a prosecutor's desire to obtain a guilty plea does not establish prosecutorial vindictiveness (see ¶ 17).

    As for the defendant's Fourth Amendment challenge, the court of appeals began with the propositions that the Fourth Amendment protects individuals against unlawful intrusions made by the government, not against those made by private parties, and that the Fourth Amendment is not implicated when articles discovered in a private search are voluntarily turned over to the government (see ¶ 23).

    A search is a "private search" if three requirements are met: "(1) the police may not initiate, encourage or participate in the private entity's search; (2) the private entity must engage in the activity to further its own ends or purpose; and (3) the private entity must not conduct the search for the purpose of assisting governmental efforts" (¶ 24). The appellate court was satisfied that these requirements were met in this case.

    Further, "[w]hether or not Cameron had a legitimate expectation of privacy in his belongings in the basement closet, Grana (a private citizen) destroyed any expectation when she went through those belongings and discovered the child pornography. After discovering and reviewing the child pornography, Grana placed it in the duffel bag…. Grana, on her own accord, invited [Deputy Sheriff] Boldus to her residence for the express purpose of viewing the contents of the duffel bag. Boldus testified that he then took possession of the duffel bag when it was removed from Grana's car. Boldus' subsequent search of the duffel bag did not exceed the scope of Grana's search. In keeping with [United States v. Jacobsen, 466 U.S. 109 (1984)], we conclude that there was no Fourth Amendment violation, and Cameron is not entitled to suppression of the evidence of child pornography found by Grana in their shared home and voluntarily turned over to law enforcement" (¶ 28) (citations omitted).

    Presentence Investigation Reports – Authority of Circuit Court to Order Destruction

    State v. Melton, 2012 WI App 95 (filed 17 July 2012) (ordered published 29 Aug. 2012)

    The defendant was found guilty of a felony, and the circuit court ordered the Department of Corrections to prepare a presentence investigation (PSI) report. The defendant moved to strike portions of the report that discussed certain uncharged offenses. The court determined that the information about the uncharged offenses would be of "little use to the Court at a sentencing." The court then concluded that leaving the objected-to information in the PSI report would be prejudicial to Melton as he went through the "route" (presumably the DOC system after sentencing) (¶ 4). ("After sentencing, the DOC is permitted to use the [PSI report] for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment and to make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research" (¶ 15) (internal quotations and citations omitted).).

    Citing its inherent authority, the court issued an order directing the DOC to prepare a second PSI report, omitting the objected-to information that was included in the first PSI report. The order also directed that the first PSI report "be sealed and destroyed following the expiration of any appellate time limits" (¶ 5). No party objected to the circuit court's order. After sentencing and entry of judgment, a successor circuit court judge modified the order of his predecessor and directed that the original PSI report be sealed rather than destroyed. The defendant appealed.

    In a decision authored by Judge Brennan, the court of appeals reversed. It concluded that, under the unique facts of this case, the circuit court had inherent authority to order destruction of the first PSI report (see ¶ 1). Courts exercise inherent authority to ensure the efficient and effective functioning of the court and to fairly administer justice (see ¶ 22).

    Said the court, "It is true that at the time the circuit court modified the order to destroy the first PSI report, and instead ordered that the report be sealed, the original sentencing was completed. However, Melton's appeal was still pending and the potential existed for resentencing. There were two sealed PSI reports in the file, the first report that had been ordered destroyed, and the second report, on which the sentencing court relied. The existence of two PSI reports in a file presents an opportunity for confusion and injustice. Even if clearly labeled, the possibility exists that at resentencing the 'wrong' PSI report would be used. Even without considering the DOC's subsequent use of the PSI reports, it would be reasonable for a circuit court to conclude that the 'wrong' PSI report should be destroyed to prevent misuse. That is certainly a matter of efficient judicial administration and fairness at a potential resentencing, and as such, is within a circuit court's inherent powers" (¶ 23). 

    Newly Discovered Evidence – Third-party Defense

    State v. Vollbrecht, 2012 WI App 90 (filed 25 July 2012) (ordered published 29 Aug. 2012)

    In 1989 a jury convicted Vollbrecht of sexually assaulting and brutally murdering a young woman, Hackl, whose body was found suspended by tire chains in a wooded area. Vollbrecht had been with the victim shortly before her murder but denied killing or assaulting her, although he did admit to having had consensual sexual intercourse with her. In 2009, Vollbrecht brought a postconviction motion based on information suggesting a link between a third party and Hackl's murder. The circuit court granted Vollbrecht's motion for a new trial based on newly discovered evidence.

    The court of appeals affirmed in an opinion, authored by Judge Neubauer, that focuses on the newly-discovered-evidence test. The evidence involved a very similar murder, committed by another man, that occurred in an adjacent county six weeks after Hackl was murdered.

    The court of appeals held that the postconviction court correctly determined that the evidence Vollbrecht relied on in his motion was sufficient to allow him a new trial. First, the evidence was found after his conviction. Second, Vollbrecht had not been negligent in discovering it. Third, the evidence was material to the identity of the killer in this case, a conclusion that turned on application of the Denny standard, which requires a showing that the third party had 1) an opportunity, 2) a motive, and 3) a direct connection to the crime that was not remote in time, place, or circumstance (see ¶ 25). See State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). The court's analysis is, necessarily, fact intensive.

    Finally, the newly discovered evidence raised a "reasonable probability" that a jury hearing such evidence would have had a reasonable doubt as to the defendant's guilt (see ¶ 34). "During the first trial, Vollbrecht was the only suspect in Hackl's murder. The newly discovered evidence would now present the jury with a viable alternative suspect: an individual who had expressed a desire to commit such a crime, who had confessed to committing a similar crime, and – if Pepin and Schultz are deemed credible – who had allegedly confessed to committing this crime. The State sets forth in great detail the circumstantial evidence against Vollbrecht, including his statements as to his whereabouts on the morning of the homicide. We nevertheless conclude that the newly discovered evidence establishes a reasonable probability that a jury would have a reasonable doubt as to Vollbrecht's guilt" (¶ 36).

    Employment Law

    Suits to Enforce Employment Restoration Rights of Veterans – Sovereign Immunity

    Scocos v. Wisconsin Dep't of Veteran Affairs, 2012 WI App 81 (filed 28 June 2012) (ordered published 27 July 2012)

    In 2003, Scocos was appointed secretary of the Wisconsin Department of Veterans Affairs (DVA). His service as secretary was interrupted by his deployment to Iraq. Upon return from deployment, he was restored to his position as department secretary. Two months later he was removed from this position by a vote of the DVA board.

    Scocos brought suit in circuit court against the DVA and board members, alleging a violation of his right not to be discharged without cause under Wis. Stat. section 321.64(2) and violations of his rights under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). The state sought dismissal of these claims, asserting sovereign immunity. The circuit court denied the state's motion. In a decision authored by Judge Lundsten, the court of appeals affirmed.

    Wisconsin Statutes section 321.64 provides employees with certain employment restoration rights when they have been absent from employment because they enlisted or were inducted into military service. "Generally speaking, § 321.64(1) describes which employees are eligible to be restored to their former employment following such military service. Section 321.64(2) describes rights possessed by persons restored to employment under subsection (1) [including a right not to be discharged without cause within one year of restoration]. And, § 321.64(3) authorizes such employees to petition a circuit court to require compliance with subsections (1) and (2)" (¶ 5).

    Scocos's claims against the state are based on a clause in subsection (2) that provides discharge-for-cause protection and a clause stating "discharge is subject to all federal ... laws." Based on this latter language, Scocos brought claims alleging USERRA violations.

    It was undisputed that Scocos had a right to be restored to his unclassified state position following his return from military service pursuant to section 321.64(1), and the state conceded that the legislature has waived immunity with respect to petitions to force compliance with section 321.64(1). In this decision, the appellate court concluded that "the plain language of subsections (1), (2) and (6) of Wis. Stat. § 321.64 reveals clear and express consent to a suit against the State for a violation of subsection (2) [the discharge-for-cause provision]" (¶ 22). The court further held that section 321.64 authorizes Scocos's claims against the state under USERRA. [Editors' Note: Scocos was an "unclassified" state employee. Section 321.64(6) provides that "[t]he restoration of classified employees of the state shall be governed by s. 230.32. The restoration of unclassified state employees shall be governed by this section."]


    Confrontation – Lab Reports

    State v. Deadwiller, 2012 WI App 89 (filed 10 July 2012) (ordered published 29 Aug. 2012)

    Deadwiller (the defendant) was convicted by a jury of sexually assaulting two women. The prosecution offered testimony by a state crime lab technician that the defendant's known DNA matched samples taken from the victims at the hospital. The victims' samples had been tested at a private lab, Orchid Cellmark, located in Texas. No one from Cellmark testified at the trial, but the state lab technician testified that he "assured himself" that Cellmark, an accredited lab, had followed proper testing protocols (see ¶ 4). On appeal, the defendant claimed that the state violated his right of confrontation.

    The court of appeals affirmed in an opinion written by Judge Fine. The court relied on Williams v. Illinois, 132 S. Ct. 2221 (2012), in which the U.S. Supreme Court split 4-1-4.

    "We need not parse in any great detail the philosophical underpinnings of the various opinions in Williams because although they disagreed as to their rationale, five justices agreed at the core that the outside laboratory's report was not testimonial. This conclusion governs this case, and we do not have to delve beyond this core to analyze whether, as Justice Alito's lead opinion concludes in part, that the outside laboratory's report was not relied on for its truth (with which five justices disagreed), or whether, as Justice Alito seems to indicate, the analysis might have been more far-ranging if Williams's trial had been to a jury rather than to a judge, although he also notes that he does 'not suggest that the Confrontation Clause applies differently depending on the identity of the factfinder. Instead, our point is that the identity of the factfinder makes a big difference in evaluating the likelihood that the factfinder mistakenly based its decision on inadmissible evidence.' This discourse on possible foundational gradations does not apply here because, as we have seen, the State laid more than a sufficient foundation for the jury to conclude that the semen recovered from [the victims] was sent to Orchid Cellmark, and that Orchid Cellmark's profiles were consistent with approved DNA-analysis standards" (¶ 12) (citations omitted).

    The court especially emphasized that the DNA samples had been properly authenticated and that the testifying expert had performed "peer review," as in an earlier case.


    "Junk" Faxes – Privacy Violations

    Sawyer v. West Bend Mut. Ins. Co., 2012 WI App 92 (filed 10 July 2012) (ordered published 29 Aug. 2012)

    The plaintiff, a locksmith, received on his business's fax machine an unsolicited "junk" fax from Atlas Heating and Sheet Metal Works. It was printed using the plaintiff's paper and toner. The plaintiff initiated a class action lawsuit based on the federal Telephone Consumer Protection Act (TCPA). The class action was removed to federal court, but the plaintiff then brought this declaratory judgment action against Atlas and its insurer, West Bend, on the issue of insurance coverage. The circuit court ruled that the insurer had a duty to indemnify and defend under its coverage for a "personal and advertising injury."

    The court of appeals affirmed in a majority opinion, authored by Judge Curley, that addressed three issues related to coverage. First, the policy covered injury to the plaintiff individually and his business. "Sawyer, as an individual and on behalf of other individuals, brought this action against West Bend, and therefore, there is coverage. Although the blast fax was sent to Sawyer's place of business, A-1 Security, and used its fax machine, toner, and paper, Sawyer received the fax and brought the class action suit against West Bend 'on behalf of himself and all other persons similarly situated.' Sawyer is listed as the plaintiff in the complaint, and it is he – as a natural person – who is seeking relief for the TCPA violation" (¶ 14). Moreover, the policy's use of the word "person" did not clearly exclude the plaintiff's locksmith business (see ¶¶ 15-16).

    Second, the complaint properly alleged a privacy violation under the policy's personal and advertising injury provision. The majority sharply disagreed with a Seventh Circuit case, finding more persuasive a 2006 Illinois opinion.

    "In sum, we conclude that by faxing advertisements to Sawyer and the alleged class of recipients, Atlas's advertisement transmitted printed material and communicated information to the public; therefore, it was a 'publication.' The 'material' at issue is an unsolicited fax advertisement, which is expressly prohibited by the TCPA. See 47 U.S.C. § 227(b)(1)(C) (referring to unsolicited advertisements). That material, by virtue of its prohibited nature, violated Sawyer's right to be left alone – i.e., his right to seclusion" (¶ 22). The majority also explained its disagreement on this point with Judge Fine's dissent.

    Third, the unsolicited "blast" fax was a publication within the policy's meaning. Having found coverage under the policy, the majority then held that the policy's exclusion for a "knowing violation of rights of another" was inapplicable. The complaint pleaded in the alternative that the defendant's negligence may have caused the plaintiff's injury (see ¶ 25).

    Judge Fine dissented, noting the "irresistible lure" of the TCPA's penalties for class action lawsuits. Although the fax might have violated the TCPA, it was not "highly offensive" for purposes of insurance coverage (¶ 26).

    "What the Majority's as-a-matter-of-law holding means, is that every piece of junk mail, advertising material slipped under an apartment door, or placed in a mail/paper box, or attached to the homeowner's door knob, or, slipped under a car's windshield-wiper blade (perhaps the most annoying unsolicited advertisements) will fall within Wis. Stat. § 995.50(2)(a)'s proscription because the advertisement would be: (1) a trespass and (2), under the Majority's analysis, 'highly offensive' as a matter of law. This will be another boon to creative class-action lawyers because § 995.50(1) permits not only, under subsection (b), '[c]ompensatory damages based either on plaintiff's loss or defendant's unjust enrichment,' but also, under subsection (c), '[a] reasonable amount for attorney fees'" (¶ 35).

    Automobiles – Secondary Employer

    Lang v. Lowe, 2012 WI App 94 (filed 24 July 2012) (ordered published 29 Aug. 2012)

    Lowe worked part-time delivering pizzas for Pizza Hut in addition to working for another employer. While on a pizza delivery run, Lowe was involved in an accident. At the time he was driving a minivan owned by his primary employer, Unlimited Inc., and insured by Frankenmuth Insurance Co. After a jury trial on the issue of coverage, the jury found that Lowe did not have Unlimited's permission, express or implied, to drive the minivan for purposes of delivering Pizza Hut pizzas. Thus, the Frankenmuth policy provided no coverage, and Frankenmuth had no duty to defend or indemnify Lowe or Pizza Hut.

    The court of appeals affirmed in an opinion written by Judge Curley. First, credible evidence supported the verdict. Lowe's supervisors at Unlimited testified that months before the accident they instructed Lowe that he was not to use the company minivan to deliver pizzas (see ¶ 17). Although other testimony (Lowe's) contradicted this version of events, the jury's findings were amply supported by the record, and the court of appeals' role was not to reweigh evidence (see ¶ 18).

    Second, Lowe contended that he was the "real owner" of the minivan and thus could give himself permission to drive it for any purpose. In rejecting this argument, the court applied a multifactor approach set forth in an earlier case. For example, the named insured was Unlimited, which held title to the minivan and insured it. Unlimited did not regard Lowe as the owner (see ¶ 21). Nor was Lowe's financial interest in the vehicle as strong as Unlimited's interest (see ¶ 24). The court also observed that even if it had considered Lowe to be the real owner, coverage would have been excluded under a different policy provision for employees' vehicles. Lowe could not have it both ways (see ¶ 27).

    Third, unlike Lowe's proposed jury instruction, the "implied consent" instruction given by the circuit court, Wis. J.I. – Civil 3112, accurately described the law (see ¶ 33).

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