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    Wisconsin Lawyer
    March 01, 2012

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. 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. 3, March 2012


    Criminal Procedure

    Search and Seizure – Consent Search – Authority of Houseguest to Consent to Search

    State v. Sobczak, 2012 WI App 6 (filed 21 Dec. 2011) (ordered published 25 Jan. 2012)

    Sobczak (the defendant) invited a female friend (the girlfriend) to stay with him for the weekend at his parents’ house while his parents were away on vacation. The state conceded that the defendant was a joint occupant of the premises with his parents. When the defendant left for work, he told the girlfriend she could use his laptop computer. She discovered child pornography on the computer and contacted the police. When an officer arrived, the girlfriend admitted him into the house, played the video for him, and permitted him to seize the computer. The defendant was charged with possession of child pornography.

    The defendant filed a motion to suppress the pornography evidence, claiming that the girlfriend did not have the authority to allow the police to enter the house and to search and seize the computer. The circuit court denied the motion, ruling that the girlfriend had authority as a guest of the house to allow police to enter the home and examine the computer. The defendant was convicted of possession of child pornography. This appeal followed.

    In a decision authored by Judge Reilly, the court of appeals affirmed. It concluded that “Sobczak’s girlfriend had actual authority to consent to the officer’s entry into the house and to the search and seizure of Sobczak’s laptop. While a mere guest in a home may not ordinarily consent to a search of the premises, the analysis is different when the guest is more than a casual visitor but instead has ‘the run of the house.’ Under those circumstances, the guest may consent to a search of the residence. Sobczak’s girlfriend was invited to stay at Sobczak’s house for the weekend. Nothing in the record indicates that Sobczak restricted her use of the property during the weekend. Sobczak gave her permission to use his laptop and allowed her to stay in the residence by herself while he was at work. As the Supreme Court said in [United States v.] Matlock, [415 U.S. 164 (1974)], if a third party has ‘mutual use of the property’ and ‘joint access or control for most purposes,’ then the third party may consent to a search of the property regardless of whether he or she owns the property. The girlfriend thus had authority to allow the officers to enter the residence and to search and seize Sobczak’s computer” (¶ 12) (citations omitted).

    The court stressed that its holding “is limited to the facts of the case, namely, that the girlfriend had the authority to consent to police entry into Sobczak’s home and to a search and seizure of his laptop. We are not holding that the girlfriend’s status as a houseguest gave her carte blanche to consent to a search of all the contents in the home. Rather, her authority to consent to a search was limited to the property that she possessed ‘common authority’ over. As a weekend houseguest who was permitted to stay in the home by herself, the girlfriend had the authority to receive people into the home, and thus had the authority to permit the officer to enter. Similarly, Sobczak gave her permission to use his computer, so she had the authority to consent to the officer’s search and seizure of that item. We make no comment on the other areas of the home that the girlfriend may have had ‘common authority’ over, as it is not germane to this case” (¶ 13).

    Search and Seizure – Search of Vehicles – Containers

    State v. Sutton, 2012 WI App 7 (filed 6 Dec. 2011) (ordered published 25 Jan. 2012)

    Sutton (the defendant) was the driver and sole occupant of a van that police officers stopped for a traffic violation. In conversation during the stop, the defendant indicated that “he thought” he was on probation for possessing marijuana. While one of the officers was checking the defendant’s license and registration, the other observed the van making “two distinct rocking motions,” but because the van had small tinted windows, the officer could not see what was going on inside the vehicle. This concerned the officers, one of whom testified later that “[d]ue to my training and experience I know this movement to be … [that] of someone who may be trying to retrieve or conceal a weapon. This caused me to fear for my safety and my partner’s safety” (¶ 4).

    The officers then returned to the van and quickly patted down the defendant for weapons; none were found. They then put the defendant into the squad car. While the defendant was still in the squad car, one of the officers began a search of the defendant’s vehicle, starting with the driver’s side. Inside the driver’s side hard-plastic map pocket, the officer saw two dark-blue, cylindrical, opaque vials on a single key chain. The officer opened the vials and saw pills of various shapes, designs, and colors. The officer thought that the pills were Ecstasy, and this was later confirmed. The defendant was charged with unlawfully possessing a prohibited drug with intent to deliver. His motion to suppress the evidence (the pills) was denied, and he was convicted (see ¶ 5). His sole claim on appeal was that the circuit court erred in denying his motion to suppress.

    In a decision authored by Judge Fine, the court of appeals reversed. After reviewing the law authorizing protective searches of vehicles under circumstances of reasonable suspicion, the court agreed that the officer “had a legitimate reason to be concerned that there might be a gun or other weapon in the van because it seems highly unusual, and did to [the officer], for the large conversion van to make two, large and distinct ‘rocking motions’ when the driver had just been stopped by a marked squad car, and asked by one of the officers about his probation or parole status. The minimal intrusion of looking into the van was more than outweighed by the need for the officers to assure themselves that there was no gun or other weapon in the van, especially because Sutton was not under arrest and could freely return to the van (¶ 8).

    Once the officer was lawfully looking in the van, “she could also look at what was in plain sight – here, the opaque blue vials – without first getting a search warrant, but we agree that she should not have opened them” (id.). Although the opaque cylinders were in plain view, the pills were not, and the officer could not tell by touch what was inside the cylinders without opening them. The officer’s experience that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. Said the court, “[t]hat is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon” (¶ 10). Further, the officer did not have probable cause to believe that there was a connection between the opaque cylinders and criminal activity (a requirement of the plain-view doctrine) (see ¶ 11). Accordingly, the officer had to get a search warrant, if she could, before opening the cylinders (id.).

    Search and Seizure – Warrantless Entry of Hallway Leading to Upper Unit of Duplex – Exigent Circumstances

    State v. Guard, 2012 WI App 8 (filed 20 Dec. 2011) (ordered published 25 Jan. 2012)

    Police were dispatched to investigate a report of armed drug dealing at a duplex; Anthony Guard was named in the complaint as the suspected armed dealer. Upon arriving at the duplex, officers encountered two women sitting on the front porch. When asked whether Anthony lived there, one of the women said that the officers “probably want the back door” and “[y]ou can use the hallway there” (¶ 2). The officers went to the side of the house, where they found a solid interior door that was ajar (4-5 inches) and an unlocked exterior security door consisting of metal bars but no glass. They also smelled the odor of burnt marijuana as they approached the side entrance and likewise detected that odor on three individuals who were exiting from that entrance as the officers approached. This side entrance gave access to a hallway that connected both the upper and lower units to the basement; it was the only means of access to the upper unit.

    The officers went in through the unlocked side door, determined that the smell of marijuana was not coming from the basement, and then went up the stairs to the upper unit. The marijuana odor got stronger as they went up those stairs. Upon reaching the second-story landing, the officers saw that the door to the upper unit was open. Four people were seated around a kitchen table; Guard was seated closest to the door. The officers entered the upper unit, saw Guard holding a marijuana cigarette and two plastic bags filled with what the officer thought was marijuana, and also observed the handle of a handgun on top of a refrigerator near Guard. The officers took Guard into custody and found 20 corner cuts of cocaine during a patdown. Guard moved to suppress all evidence obtained as a result of the officers’ warrantless entry into the duplex. The circuit court denied the motion.

    In a decision authored by Judge Kessler, the court of appeals reversed. It concluded first that the defendant had a reasonable expectation of privacy not only in his unit but also in the only entrance to his unit, which was the back hallway (see ¶ 22). Factors relevant to that conclusion included the following: “(1) Guard, as a resident of the duplex, had a property interest in the premises; (2) Guard was lawfully in the duplex; (3) Guard, as a resident, had the same right as other residents to control access to his dwelling; (4) the only entrance to his dwelling was the side entrance, which also provided access to the back entrance to the lower unit and gave both units access to the basement; (5) the existence of a closed exterior security door blocking entrance from the outside to the common hallway demonstrates control of access to his dwelling; (6) there is no evidence the tenant in the lower unit had a key to access the back hall through the security door and the interior door; and (7) Guard’s possible allowance of others to enter with his permission (e.g. a pizza delivery person, or a UPS delivery person) does not transfer the only entrance to his dwelling to an area freely accessed by all in the duplex, much less by the general public” (¶ 18). Further, the court noted that Guard put the duplex unit to private use as his dwelling and that he manifested a reasonable precaution of privacy with the doors as described above (even though the interior entrance door was ajar when the officers arrived.)

    The court agreed with the state that “[i]f the police had a right to be in the back hall, they encountered exigent circumstances when they discovered, in plain view inside Guard’s dwelling, illegal activity (the consumption of marijuana), probable contraband (the packets they believed contained marijuana) and a weapon within Guard’s reach. The issue in this appeal, however, is whether the officers had a right to enter the building and thus to be in the back hall” (¶ 13 n.4).

    The court concluded that they did not. The state did not establish by clear and convincing evidence that the woman who gave the police information about the back stairs as the way to access the upper unit had the actual authority to consent to police entry to the only means of access to that upper unit (see ¶ 27). Nor was there sufficient evidence on which to conclude that the woman had apparent authority to consent to the entry; said the court, “[w] e conclude that the record does not establish by clear and convincing evidence that the information known to the officers about the women at the time the officers moved toward the side entrance supports an objective reasonable belief that the unidentified woman, who may or may not have lived in the duplex, had the apparent authority to give permission to enter the duplex” (¶ 29).

    Lastly, the appellate court concluded that the state did not establish exigent circumstances that would have excused the need for a warrant at the time the officers opened the security door and entered the back hallway (see ¶ 35). There was “neither a reasonable perception of a threat to the officers’ safety, nor a reasonable concern about the destruction of evidence … until the officers actually reached the top of the stairs leading to the upper unit and announced themselves” (¶ 34). In fact, the record establishes that the occupants of the upper unit were unaware of the officers’ presence until the latter arrived on the second floor.

    Rebuttal Evidence – Other Acts – Sleeping Jurors

    State v. Novy, 2012 WI App 10 (filed 21 Dec. 2011) (ordered published 25 Jan. 2012)

    Novy was convicted of multiple counts of stalking, bail jumping, and violating a harassment restraining order. The court of appeals affirmed in an opinion, authored by Judge Neubauer, that dealt with three issues.

    The first issue concerned rebuttal evidence. One of the bail-jumping charges alleged that Novy had called the victim from a payphone at a local store. Police officers discovered his fingerprint on the phone. The state, however, had violated a pretrial order by not disclosing that a designated police officer would provide expert testimony; the circuit court excluded the fingerprint testimony after the defendant objected to its admission. When the state rested its case, the court also dismissed this bail-jumping count because no evidence supported the charge. When the defendant testified on cross-examination, he denied having called the victim from that payphone. The circuit court then permitted the state to offer the fingerprint evidence in its rebuttal case.

    The court of appeals affirmed on this issue. The statutory duty to disclose under Wis. Stat. section 971.23 does not apply to rebuttal evidence (see ¶ 9). The court pointedly refused to draw a “bright-line distinction” between rebuttal evidence intended for “rebuttal only” and rebuttal evidence that was excluded from the state’s case-in-chief (see ¶ 11). Case law “thus affirms that, under Wis. Stat. § 971.23(1)(d), bona fide rebuttal evidence is admissible despite the absence of any disclosure by the State” (¶ 13). When Novy took the stand, he was obligated to speak truthfully, and the state was entitled to impeach his credibility (see ¶ 16). The court was satisfied that the fingerprint evidence was “bona fide rebuttal evidence” and that Novy was not unfairly surprised by it (see ¶¶ 18-19).

    Novy also complained that the circuit court impermissibly permitted other-acts evidence related to his placement of a hidden camera in the victim’s bedroom at an earlier date. Because he failed to provide the court of appeals with a transcript of the admissibility hearing, however, the court assumed that the circuit court’s ruling was correct and therefore affirmed (see ¶ 20).

    A final issue involved Novy’s assertion that one juror was asleep during the defense’s closing argument (see ¶ 21). Novy unsuccessfully sought to have the juror removed before deliberations. The court found no abuse of discretion. The parties and the trial judge disputed whether the juror was indeed asleep (see ¶ 23). Moreover, the juror closed his eyes during the closing statement, not the evidentiary phase of the trial. No cited case law showed a juror being removed for sleeping during closing arguments (see id.).

    Judge Reilly dissented on grounds that the rebuttal evidence was irrelevant as to any charge for which Novy was on trial. “It was fundamentally unfair to allow the State in rebuttal to connect up its opening statement that it would produce such ‘evidence’ when the crime had been dismissed mid-trial and the State had not sought permission to use the ‘other-acts’ evidence prior to impeaching Novy” (¶ 28).


    Victim’s Hearsay – Reversible Error

    State v. Prineas, 2012 WI App 2 (filed 14 Dec. 2011) (ordered published 25 Jan. 2012)

    Prineas was convicted of several counts of second-degree sexual assault but acquitted of four other counts. His defense was that the victim consented. At trial, the judge refused on hearsay grounds to permit him to recount what the victim allegedly said during their sexual contact.

    The court of appeals reversed in an opinion authored by Judge Neubauer. The court of appeals held that the circuit court abused its discretion when excluding the defendant’s testimony about the victim’s statements. The central issue at trial was consent (see ¶ 16). The victim’s statements to the defendant purportedly manifested her consent to the sexual contact and thus were inconsistent with the victim’s own trial testimony. Thus, they were admissible as prior inconsistent statements pursuant to Wis. Stat. section 908.01(4)(a) (see ¶ 18). Moreover, the statements also fell within the hearsay exception for a declarant’s then existing state of mind or emotion. Wis. Stat. § 908.03(3). Whether the victim in fact said these things, and if so, whether they showed consent, were issues of fact for the jury (see ¶ 19). The court declined to address other theories of admissibility for the victim’s statements (see ¶ 20 n.8).

    Next, the court of appeals found that the erroneous exclusion of this evidence was reversible error whether looked at as harmless error or through the prism of ineffective assistance of counsel. This fact-intensive analysis focused on evidence of the victim’s “willingness” to engage in the sexual conduct (see ¶ 26). The excluded evidence was neither cumulative nor superfluous. Moreover, it also bore on the relative credibility of the victim and the defendant. The opinion discusses the idea of “cumulative credibility evidence” as found in the case law (¶ 27).


    Exclusions – Fraudulent Conduct

    State v. GE-Milwaukee LLC, 2012 WI App 5 (filed 6 Dec. 2011) (ordered published 25 Jan. 2012)

    The state filed an action against a dating service, GE-Milwaukee, alleging a wide array of fraudulent, deceptive, and unfair trade practices. The state sought various types of relief for consumers. GE-Milwaukee sought coverage through its insurer, Admiral Insurance, which denied coverage. The circuit court granted a declaratory judgment in the insurer’s favor, finding it had no coverage or duty to defend.

    The court of appeals affirmed in an opinion written by Judge Fine. The court found it unnecessary to address whether the state’s allegations, if proved true, constituted volitional, not negligent, acts, thus eliminating coverage (see ¶ 14). Rather, an exclusion in the policy clearly precluded coverage irrespective of the volitional-acts doctrine. The exclusion applied to “any claim arising out of, or contributed to by the dishonest, fraudulent, criminal or malicious act or omission, or arising out of a willful violation of any penal statute or ordinance” (¶ 15). “There is no doubt but the State’s operative complaint – root and branch – alleges a dishonest and fraudulent dating-services scheme. Thus, all the claims the State asserts either ‘arise out of’ or were ‘contributed to’ by the ‘dishonest [or] fraudulent act[s] or omission[s]’ specified in the operative complaint” (id.).

    Occupied Dwelling – “Total-Loss” Statute

    Johnson v. Mt. Morris Mut. Ins. Co., 2012 WI App 3 (filed 1 Dec. 2011) (ordered published 25 Jan. 2012)

    The Johnsons bought a house as an investment; they later decided to turn the house into their retirement home. In 2007, they spent several months renovating the house, but it then was destroyed in an explosion and fire. They had never slept overnight in the house. Their homeowner’s insurer, Mt. Morris, offered to pay for their loss but refused to pay the policy’s limits on grounds that it was not an occupied dwelling, as required by statute. The circuit court granted summary judgment in favor of the Johnsons, ordering the insurer to pay the policy limits.

    The court of appeals affirmed in an opinion authored by Judge Sherman. “By its express language, Wis. Stat. § 632.05(2) requires an insurer to pay its policy limits to an insured whose ‘owned and occupied dwelling’ is ‘wholly destroyed’” (¶ 11). The place was clearly a “dwelling”: “It was occupied as a residence by the previous owner. It has a kitchen, a bathroom and bedrooms and nothing in the record suggests the Johnsons turned the building into something other than a dwelling. The fact that the building was being renovated and refurbished does not affect its status as a dwelling. It would be unreasonable to say that a dwelling ceases to be a dwelling while its owners are improving it for the very purpose of using it as a dwelling” (¶ 14).

    The tougher question was whether it was occupied as defined by the total-loss statute. Case law established that “the ‘occupied’ requirement can be met by use of the dwelling by an insured even if that use is not actually living in the dwelling at the time of the occurrence” (¶ 16). The insured’s use, however, “must bear a relationship to actually living in the dwelling” (¶ 17). Here it was not dispositive that the Johnsons had never slept in the dwelling (see ¶ 18). “It would be unreasonable to conclude that a dwelling ceases to be occupied as a dwelling if the people living there temporarily vacate the dwelling for renovations, any more than if they simply go on an extended vacation. And, we discern no reason why the result should be different if a policyholder purchases property and engages in some renovations before moving in” (¶ 19).

    Worker’s Compensation

    Loaned Employee – Temporary Help Agency

    M.M. Schranz Roofing Inc. v. First Choice Temporary, 2012 WI App 9 (filed 21 Dec. 2011) (ordered published 25 Jan. 2012)

    Crews was severely injured when he fell from a roof at a construction site. The question before the Labor and Industry Commission (LIRC) was “[w]ho was his employer for worker’s compensation purposes?” (¶ 2). The problem arose because First Choice Temporary “provided” Crews to a minority contractor, Freeman, which in turn loaned Crews to Schranz Roofing, which supervised the job site. LIRC concluded that Schranz, the worksite employer, was responsible for the worker’s compensation claim.

    The court of appeals affirmed LIRC’s findings in an opinion authored by Chief Judge Brown. First, LIRC’s findings were subject to great weight deference (see ¶ 9). “[W]hile LIRC may not have addressed this same, quirky fact situation in the past, it is quite experienced at determining employer liability, so great deference is still appropriate” (¶ 10) (citation omitted). Second, Crews was employed by Schranz within the meaning of Wis. Stat. section 102.07(4), which embraces a “broad definition” that includes “an implied contract for hire” (¶ 13). Also, in light of prior litigation in this matter, it was the “law of the case” that Crews was a “loaned employee of Schranz”(¶ 14).

    The third issue was whether First Choice, the “temp” agency, was nonetheless statutorily liable for the worker’s compensation claim because it was a temporary help agency as defined by Wis. Stat. section 102.04(2m). The court of appeals held that First Choice was not liable.

    “The long and the short of it is that Schranz did not obtain Crews’s services through the auspices of First Choice. First Choice did not place Crews with or lease Crews to ‘another employer who controls the employee’s work activities and compensates the first employer for the employee’s services.’ Rather, in order to satisfy minority hiring requirements, Crews was placed with Freeman, who then placed Crews with Schranz. Sure, this was a sleight of hand between Schranz and Freeman. Had there been evidence that First Choice knew all along that it was really just a player in order to make everything legal and that it knew it was placing Crews with the real party in control of the employee, Schranz, this would be a closer case. LIRC emphasized that First Choice did not even have knowledge that Crews was working for Schranz. This is a very important finding of fact and drives the result in this case. Indeed, without that fact, we surmise that LIRC may well have reached a different result. And that finding of fact is conclusive on us” (¶ 19).

    It did not matter that First Choice paid worker’s compensation premiums for Crews or that it was compensated for placing him with Freeman (see ¶ 20). Finally, the court distinguished commentary in a footnote by the Department of Workforce Development, which did not cover a scenario like this one and which could not, in any event, change the statute’s plain meaning (see ¶ 21).

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