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    Wisconsin Lawyer
    June 01, 2015

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka

    Criminal Procedure

    Postconviction Competency Hearings – Burden of Proof

    State v. Daniel, 2015 WI 44 (filed 29 April 2015)

    HOLDING: When a defense attorney raises the issue of the defendant’s competency at a postconviction hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant is competent to proceed.

    SUMMARY: Defendant Daniel was charged with first-degree intentional homicide and armed burglary. The circuit court found him competent to proceed, and a jury convicted him of the crimes charged and sentenced him to life imprisonment. Thereafter, defense counsel notified the court that he had a good-faith reason to doubt the defendant’s competency to pursue postconviction relief. In a postconviction hearing at which the defendant himself said he thought he was competent to proceed, the circuit court concluded that defense counsel failed to show by clear and convincing evidence that Daniel was incompetent.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a published decision, the court of appeals concluded that the circuit court could allocate the burden of persuasion to the defense in a postconviction competency proceeding but that the appropriate burden is preponderance of the evidence. See 2014 WI App 46.

    In a decision authored by Justice Bradley, the supreme court noted that the issue of who bears the burden of proof at a postconviction competency hearing when defense counsel and the defendant disagree on competency is a matter of first impression in Wisconsin (see ¶ 20) and one that is not answered by Wisconsin’s competency statute, Wis. Stat. section 971.14.

    Nonetheless, after considering this statute as well as the potential conflict of interest in placing the burden of proof on defense counsel and the relative interests and risks at stake, the court concluded that “once a defense attorney raises the issue of competency at a postconviction hearing, the burden is on the State to prove by a preponderance of the evidence that the defendant is competent to proceed” (¶ 53).

    The court declined to adopt the state’s suggestion that competency be presumed at a postconviction hearing when the defendant was previously determined to be competent to stand trial. “Competency is not static” (¶ 49).
    “[T]he fact that a defendant was deemed competent to stand trial should not create a presumption that the defendant is competent at a later date when the same defendant pursues postconviction relief” (¶ 50).

    Justice Prosser did not participate in this case.

    Investigative Stop – Arrest – Community-caretaker Exception to the Warrant Requirement

    State v. Blatterman, 2015 WI 46 (filed 5 May 2015)

    HOLDING: Police officers had reasonable grounds to conduct an investigative detention of the defendant and probable cause to arrest him for violating the .02 percent prohibited alcohol concentration (PAC) law.

    SUMMARY: Police officers received a dispatch advising them that Blatterman was bringing gas into his house through a stove or fireplace to try to blow up the house or light it on fire. The complainant was Blatterman’s wife. Officers then were informed that the defendant had left his home in a white minivan, was possibly intoxicated, and had, in the past, mentioned “suicide by cop.” A deputy spotted and followed the minivan, did not observe the driver violate any traffic laws, and ultimately stopped the van when other officers arrived as backup.

    Immediately after being pulled over, Blatterman exhibited odd and potentially dangerous behavior. Contrary to the officers’ orders, he exited his vehicle and began to approach the officers. He was wearing jeans, boots, and a short-sleeve shirt without a coat, although the temperature was very cold. He continued walking toward the officers despite the fact the officers were pointing guns at him and had ordered him to stop moving.

    When Blatterman finally stopped, the officers put him on the ground and handcuffed him. A deputy smelled alcohol on him and observed that he had watery eyes. After Blatterman was placed in handcuffs, he told the officers that his chest hurt. The officers then summoned emergency medical services (EMS) personnel to evaluate him. In the meantime, the officers placed Blatterman in the back of a squad car, because he was not dressed appropriately for the cold weather. When the EMS personnel arrived, Blatterman refused attention.

    Meanwhile, a deputy checked Blatterman’s driving record and discovered that he had three prior operating while intoxicated (OWI)-related convictions and was therefore subject to a PAC legal limit of .02 percent. A deputy subsequently transported Blatterman to a hospital 10 miles away for an evaluation regarding his chest pain. Hospital employees examined Blatterman and found no concern with his chest pain. A blood draw was done and indicated that Blatterman’s blood alcohol concentration was .118 percent.

    Blatterman was charged with fourth-offense OWI and fourth-offense PAC. He moved to suppress the blood test results, claiming his transport to the hospital amounted to an arrest unsupported by probable cause. The circuit court denied the motion, and he then pleaded guilty to the OWI charge. In an unpublished opinion, the court of appeals reversed. In a decision authored by Chief Justice Roggensack, the supreme court reversed the court of appeals.

    On the facts as recited above, the supreme court concluded that the officers had reasonable suspicion to conduct an investigatory detention of the defendant and the detention was reasonable in duration given the need to summon EMS personnel; however, transporting the defendant to the hospital 10 miles away exceeded the authorization in the temporary-detention statute (Wis. Stat.
    § 968.24) to detain a suspect “in the vicinity” of where the person was stopped.

    Nonetheless, the court concluded that an arrest of the defendant occurred when the officers transported the defendant to the hospital and the arrest was supported by probable cause (noting among other things that before the transport the officers knew the defendant was subject to the .02 percent PAC law). The court also concluded that the transportation of the defendant to the hospital was lawful under the community-caretaker exception to the Fourth Amendment’s warrant requirement.

    Justice Ziegler joined the majority opinion but wrote separately “to briefly explain why the officer here was not required to first administer a preliminary breath test (‘PBT’) to Dean Blatterman in order to have his blood tested at the hospital. I also concur and write separately to further discuss why odor alone establishes probable cause to arrest and test a serial offender, like Blatterman, who smells of intoxicants and is driving. We took this case to do more than apply previously existing probable cause principles. We accepted review in this case to decide whether there is probable cause to arrest and test a driver, who is subject to the .02% alcohol concentration limit, based upon odor of alcohol alone” (¶ 61). Justice Prosser joined this concurrence in full, and Chief Justice Roggensack joined it in part.

    Charge Specificity – Other-act Evidence – Closing Argument

    State v. Hurley, 2015 WI 35 (filed 31 March 2015)

    HOLDINGS: The criminal complaint provided adequate notice of the child-sexual-abuse charges against the defendant, the circuit court properly admitted other-act evidence regarding a prior victim, and the prosecutor’s remarks during closing argument did not justify a new trial.

    SUMMARY: The defendant was charged with multiple counts of sexually abusing his then stepdaughter between 2000 and 2005. At trial, the court admitted other-act evidence involving the defendant’s sexual assaults against his own sister more than 25 years earlier (she was younger than 10 years old at the time and the defendant was a young teenager). In postconviction proceedings, the trial judge granted a new trial based on the prosecutor’s remarks during closing argument. Both sides appealed to the court of appeals, which held that the criminal complaint did not provide adequate notice and that the trial judge abused his discretion in admitting the other-act evidence. The court of appeals did not address the closing-argument issue.

    The supreme court reversed the court of appeals and reinstated the defendant’s conviction in an opinion authored by Justice Gableman. The court addressed three fact-intensive issues. First, the amended complaint provided adequate notice despite the open-ended allegations (see ¶ 37). Controlling case law governing child-sexual-abuse allegations includes at least seven factors that courts may consider in assessing the adequacy of the allegations. Included are two factors relating to “dimmed memories”; the court rejected a “purely mathematical approach” that dwells on the years elapsed between the crimes and the defendant’s arrest because it undermines the statute of limitation
    (see ¶ 51).

    Second, the supreme court held that the circuit court properly admitted other-act evidence relating to the defendant’s sexual assault of his sister. Applying the greater-latitude standard governing other-act evidence in child-sexual-abuse cases (see ¶ 82), the court found no abuse of discretion in admitting this evidence despite it pertaining to events that occurred 25 years earlier. Noteworthy is the court’s discussion of “motive” and “opportunity” as avenues of other-act proof; the majority opinion closely assesses all three steps of the other-act-evidence test. See State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

    Finally, the supreme court held that the circuit court erroneously exercised its discretion when granting a new trial based on the prosecutor’s comments during closing argument. The error occurred when the trial judge misapplied case law governing comments about a defendant’s failure to deny allegations (see ¶¶ 102-104).

    Chief Justice Abrahamson, joined by Justice Bradley, dissented on grounds that the other-act evidence failed all three steps required for admissibility.

    Evidence Destruction – Strict Liability – Rule of Lenity

    State v. Luedtke, 2015 WI 42 (filed 24 April 2015)

    HOLDINGS: In two consolidated cases, the court held that the defendants’ due-process rights were not violated when the state destroyed their blood samples in accordance with routine procedures. In one case, the court also held that operating a vehicle with a detectable amount of a restricted controlled substance is a valid strict-liability offense.

    SUMMARY: The two defendants in these consolidated cases were charged with operating vehicles under the influence of alcohol or controlled substances. In each case, the state tested a sample of the defendant’s blood and later, in accordance with routine practices, destroyed the defendant’s blood sample before the defense requested production of the sample so it could be retested. Both defendants were convicted, and the court of appeals upheld both convictions in published decisions. See State v. Luedtke, 2014 WI App 79, 355 Wis.2d436, 851 N.W.2d837; State v. Weissinger, 2014 WI App 73, 355 Wis.2d546, 851 N.W.2d780.

    The supreme court affirmed both convictions in a majority opinion authored by Justice Gableman. Both defendants argued that the destruction of their blood samples pursuant to routine procedures violated their due-process rights. Both had demanded production of the samples for retesting, albeit only after the samples were destroyed.

    In rejecting these contentions, the court held that Arizona v. Youngblood, 488 U.S. 51 (1988), remains valid precedent that has not been altered by later state case law; thus, “destruction alone” results in no due-process violation (¶ 47). Youngblood mandates that due-process violations require a showing that the state 1) failed to preserve evidence that is apparently exculpatory or 2) acted in bad faith by failing to preserve potentially exculpatory evidence (see ¶ 53).

    Neither defendant argued that his or her sample was apparently exculpatory (see ¶ 54) nor did they show that the state acted in bad faith (see ¶ 55). Moreover, both defendants received fair trials, replete with discovery, wide latitude to cross-examine the state’s witnesses, and the opportunity to call their own experts (see ¶¶ 60-61). And since there was no due-process violation, the circuit courts were not required to give jury instructions “allowing the jury to infer that the lost evidence was exculpatory” (¶ 63).

    Defendant Luedtke also claimed that the strict-liability statute under which he was charged was unconstitutional (only he raised this issue). The court looked to its six-factor standard for assessing whether the statute imposes strict liability. “These six factors are: 1) the language of the statute; 2) the language of related statutes; 3) the legislative history; 4) law enforcement practicality; 5) protection of the public from harm; and 6) the severity of the punishment” (¶ 65). Five factors weighed in favor of strict liability; a sixth (the penalties) was “neutral” (¶ 72).

    The court also declined to apply the rule of lenity because the statute both was unambiguous and imposes strict liability (see ¶ 73). Finally, the statute was constitutional under rational-basis scrutiny (see ¶ 76).

    Chief Justice Abrahamson concurred. First, she disagreed with the court’s “persistent antipathy to construing” the state constitution differently than analogous provisions in the federal constitution (¶ 87). Second, she concluded that the bad-faith standard announced in Youngblood was insufficient to protect defendants’ rights. Third, the Chief Justice contended that case law should be moderated and that curative instructions should be given in cases such as these, especially given defendants’ dwindling opportunities to assess the evidence against them.

    Employment Law

    Restrictive Covenants – At-will Employee – Consideration

    Runzheimer Int’l Ltd. v. Friedlen, 2015 WI 45 (filed 30 April 2015)

    HOLDING: Lawful consideration supported the employer’s demand that the employee sign a restrictive covenant or be terminated.

    SUMMARY: Friedlen worked for Runzheimer International for 15 years before he was told to sign a restrictive covenant or lose his job. He signed the covenant but was fired approximately two years later. Friedlen went to work for one of Runzheimer’s competitors, which sparked this lawsuit against both Friedlen and his new employer.

    The circuit court ruled in Friedlen’s favor on grounds that Runzheimer’s promise not to fire him if he signed was illusory. The court of appeals certified this case to the supreme court because present case law fails to adequately address whether an employer’s “forbearance” of its right to terminate an at-will employee in exchange for the employee’s signing a restrictive covenant constitutes lawful consideration.

    The supreme court reversed the circuit court in a majority opinion authored by Justice Prosser. “We hold that an employer’s forbearance in exercising its right to terminate an at-will employee constitutes lawful consideration for signing a restrictive covenant. Although, theoretically, an employer could terminate an employee’s employment shortly after having the employee sign a restrictive covenant, the employee would then be protected by other contract formation principles such as fraudulent inducement or good faith and fair dealing, so that the restrictive covenant could not be enforced” (¶ 5).

    The opinion canvasses the split among jurisdictions on whether forbearance to terminate an at-will employee is lawful consideration (see ¶ 38). It was of “no consequence” that Runzheimer’s promise not to fire its employee was for an “indeterminate period of time because the length of the promise’s duration goes to the adequacy of the consideration, not the existence of lawful consideration” (¶ 49). Concerns about the risk of an “immediate termination” following the signing of the restrictive covenant were best addressed under other contract-law principles, such as rescission and void contracts (see ¶¶ 53, 55). The court remanded the case for a determination of the reasonableness of the restrictive covenant (see ¶ 6).

    Chief Justice Abrahamson concurred. “[T]o hold that the covenant not to compete is supported by consideration from Runzheimer, and to hold that the doctrines of fraudulent inducement and good faith and fair dealing would protect Friedlen if he were fired shortly after signing the covenant not to compete, the majority opinion in effect transforms the parties’ at-will employment contract into an employment contract for a reasonable duration. Understood this way, I agree with the majority opinion” (¶ 68).

    Wage Claims – Unpaid Lunch Breaks

    Aguilar v. Husco Int’l Inc., 2015 WI 36 (filed 1 April 2015)

    HOLDING: The decision of the Department of Workforce Development (DWD) to deny back pay for lunch breaks that were not paid pursuant to a collective bargaining agreement (CBA) was reasonable and consistent with the purpose of the state regulation governing paid lunch breaks.

    SUMMARY: A union-initiated complaint was filed with the DWD on behalf of employees of Husco International; it alleged that Husco owed the employees wages for 20-minute meal breaks. These breaks had been unpaid pursuant to every CBA negotiated between the union and the company since 1983. As it turns out, this provision was in conflict with a state regulation that requires employers to pay employees for meal breaks that are shorter than 30 minutes. See Wisconsin Admin. Code § DWD 274.02. The DWD regulation specifically allows employers and unions with a CBA to request a state waiver for shorter unpaid meal breaks, but no such request was submitted in this case. After the conflict with the regulation was discovered, the practice was ended.

    In response to the complaint, the DWD determined it would not seek collection of back wages for the meal breaks because the factors favoring a waiver (which are articulated in the regulation on waiver) were present in this case, that is,the parties to the CBA had agreed to the provision and there was no evidence that the shorter meal breaks jeopardized the life, health, safety, or welfare of employees.

    Husco employees then brought suit in the circuit court, which denied both parties’ summary-judgment motions. An interlocutory appeal followed and, in a published decision, the court of appeals held that the matter was appropriate for summary judgment and granted summary judgment to the plaintiffs, reasoning that the CBA could not trump the DWD meal-break regulation. See 2014 WI App 64.

    In a unanimous decision authored by Justice Crooks, the supreme court reversed the court of appeals. The court first considered whether federal preemption applies to the plaintiffs’ claim because this case involves a CBA and a dispute between labor and management. If the claim involves an interpretation of a CBA, the case would be controlled by section 301 of the Labor Management Relations Act. The court concluded that federal preemption does not apply here because the dispute requires no interpretation of the CBA (see ¶ 6).

    Turning to the merits, the court noted that the plaintiffs pursued this claim in circuit court after exhausting their administrative remedies and therefore the court had the benefit of the agency’s interpretation of Wisconsin Administrative Code section DWD 274.02, its own regulation, which is given “controlling weight” if it is reasonable and consistent with the meaning and purpose of the regulation. The court concluded that “the Department’s interpretation and decision to deny recovery of back pay in this case is reasonable and consistent with the purpose of the regulation because the regulation’s purpose is to protect the life, health, safety, and welfare of the employees and to accommodate reasonable departures from the rule on meal break length where, under a CBA, labor and management have agreed on that issue” (¶ 39).


    Experts – Confrontation – Independent Opinions

    State v. Griep, 2015 WI 40 (filed 23 April 2015)

    HOLDING: In a third-offense OWI prosecution, testimony by a forensic analyst who did not perform the original tests nonetheless constituted an independent opinion on the blood alcohol concentration (BAC) level, satisfying the confrontation right.

    SUMMARY: After Griep’s arrest on a charge of third-offense OWI, the state laboratory tested his blood, reporting a BAC that exceeded the legal limit. The lab analyst who performed the original BAC test was on leave at the time of trial, so the state called the lab’s section chief, Harding, who examined the data relating to the original test and came to his own independent opinion that Griep’s BAC exceeded the legal limit. Griep was convicted. In a published decision, the court of appeals affirmed Griep’s conviction. See 2014 WI App 25.

    The supreme court affirmed in a majority opinion authored by Justice Roggensack. The issue was whether Harding testified as a hearsay conduit, essentially parroting the hearsay produced by the first analyst, or instead was offering his independent opinion when he testified. The court distinguished the recent decisions in Williams v. Illinois, 132 S. Ct. 2221 (2012), and State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362, which are binding only as to their “specific result” and to persons in a “substantially identical” position,” which Griep was not (¶ 38).

    Rather, Griep’s situation was controlled by State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, and State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, which “establish that an expert witness does not violate the Confrontation Clause when his or her opinion is based in part on data created by a non-testifying analyst if the witness ‘was not merely a conduit.’ In other words, if the expert witness reviewed data created by the non-testifying analyst and formed an independent opinion, the expert’s testimony does not violate the Confrontation Clause. No federal decision addresses this type of expert testimony.… Stated otherwise, when a non-testifying analyst documents the original tests ‘with sufficient detail for another expert to understand, interpret, and evaluate the results,’ that expert’s testimony does not violate the Confrontation Clause” (¶ 40) (citations omitted).

    A concurring opinion by Chief Justice Abrahamson, joined by Justice Bradley, doubted the “independence” of Harding’s opinion (“a substitute expert witness can do little more than summarize the work and parrot the findings of the analyst who performed the testing”)
    (¶ 94). Nonetheless, the cross-examination of a substitute expert witness who fails to provide an independent opinion is “permissible” under five conditions that are set forth in the concurring opinion at paragraph 109.

    Justice Prosser did not participate in this case.

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