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    Wisconsin Lawyer
    January 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Searches – Attenuation – Independent Source

    State v. Gant, 2015 WI App 83 (filed 9 Oct. 2015) (ordered published 18 Nov. 2015)

    HOLDINGS: 1) Police officers had probable cause to seize the defendant’s personal computer in connection with his wife’s death. 2) The attenuation and independent-source doctrines permitted admission of child pornography found on the defendant’s computer when it was searched many months after the seizure.

    SUMMARY: While investigating the hanging death of defendant Gant’s wife, police officers seized Gant’s computer based on a report that the wife had used it before her death. Although her death was ruled a suicide, the law enforcement agency retained the computer despite several requests for its return by Gant. Months later, police obtained a search warrant based on other allegations, searched the computer, and discovered child pornography. Gant later pleaded guilty to possession of child pornography, after the circuit court denied his motion to suppress.

    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.

    The court of appeals affirmed in an opinion authored by Judge R.G. Bradley. First, the police properly seized the computer as part of an investigation into whether the wife’s death was a homicide. Hanging deaths are not assumed to be suicides, especially in situations such as this, in which Gant cut down and moved the body (see ¶ 13).

    Second, the court assumed, without deciding, that the 10-month retention of the computer was an unlawful seizure (see ¶ 14). Nonetheless, both the attenuation and the independent-source doctrines permitted admission of the child pornography evidence. The independent-source doctrine applied “because the retention of Gant’s computers did not affect the officer’s decision to get a search warrant, and it did not affect the magistrate’s decision to issue the search warrant” (¶ 16). Attenuation also applied. As to the “temporal proximity” factor, the failure by police to return the computer had nothing to do with the later evidence of the defendant’s involvement in child pornography, which led to the search warrant (see ¶ 18). Moreover, “intervening circumstances” also supported attenuation: there was no evidence that police retained the computer because Gant was suspected of child pornography (¶ 19). Finally, there was no evidence of flagrant police misconduct (see ¶ 20).

    DNA Surcharge – Ex Post FactoChallenge

    State v. Scruggs, 2015 WI App 88 (filed 21 Oct. 2015) (ordered published 19 Nov. 2015)

    HOLDING: A statute mandating assessment of a DNA surcharge on conviction of a single felony is not an ex post facto law as applied to the defendant.

    SUMMARY: Defendant Scruggs appealed from a judgment of conviction for burglary, which imposed a $250 DNA surcharge pursuant to Wis. Stat. section 973.046(1r)(a) (2013-14), and an order denying her motion for postconviction relief vacating the surcharge. When Scruggs committed the crime, the imposition of a $250 DNA surcharge for that offense was subject to the court’s discretion; however, by the time she was convicted and sentenced, the legislature had made the $250 DNA surcharge mandatory for all felony convictions. The circuit court concluded it was required to assess the surcharge.

    On appeal, Scruggs contended that, as applied to her, the mandatory imposition of the $250 DNA surcharge violates the ex post facto clauses of the U.S. and Wisconsin Constitutions. The state countered that the amendment making the surcharge mandatory is not punitive and thus does not constitute an ex post facto law. In a decision authored by Chief Judge Neubauer, the court of appeals affirmed.

    Applying an “intent-effects” test, the appellate court concluded that, in making the surcharge mandatory, the legislature “was motivated by a desire to expand the State’s DNA data bank and to offset the cost of that expansion, rather than [by] a punitive intent” (¶ 10). Moreover, the defendant did not carry her burden of showing that the effect of the $ 250 surcharge is to impose a criminal penalty on her (see ¶ 18). In sum, “Scruggs has failed to demonstrate beyond a reasonable doubt that the $250 DNA surcharge that the circuit court imposed on her for a single felony conviction constitutes a punishment and, thus, violates the prohibitions against ex post facto laws in the U.S. and Wisconsin Constitutions” (¶ 19).

    The court distinguished its decision in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758. Radaj brought an as-applied challenge to the same statute and the court held that the mandatory surcharge was an ex post facto law when the circuit court applied it to each of four felony convictions and assessed a $1,000 DNA surcharge. In that case, the appellate court concluded that the effect of assessing a $250 DNA surcharge for each felony conviction was to punish the defendant, holding that there could be no reason why the costs associated with running the DNA data bank would generally increase in proportion to the number of convictions. The Radaj court left for another day the issue litigated in the present case: whether assessing a $250 surcharge for a single felony conviction would be punitive in effect (see ¶ 9).

    Sentence Modification – New Factor

    State v. Sobonya, 2015 WI App 86 (filed 21 Oct. 2015) (ordered published 19 Nov. 2015)

    HOLDING: A postsentencing report by an expert that expresses an opinion different than the circuit court’s regarding sentencing objectives (protection, punishment, rehabilitation, and deterrence) does not constitute a “new factor” for sentence-modification purposes.

    SUMMARY: Defendant Sobonya requested expungement of her criminal record at her sentencing for heroin possession. The circuit court denied her request on the ground that granting expungement would undermine the deterrent effect of the court’s sentence. Sobonya then retained an expert who opined that granting expungement would not undermine the deterrent effect of the court’s sentence and offered this report as a new factor relevant to the court’s decision on expungement.

    A circuit court possesses inherent authority to modify criminal sentences but such authority is limited to certain circumstances, including when the defendant has shown the existence of a new factor. “A ‘new factor’ in the context of sentence modification ‘refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties’” (¶ 6) (citation omitted).

    In a decision authored by Judge Reilly, the court of appeals concluded that “[a] postsentencing report that expresses an opinion different from that of the trial court regarding the objectives of sentencing (protection, punishment, rehabilitation, and deterrence) is nothing more than a challenge to the trial court’s discretion and does not constitute a ‘new factor’ for sentence modification purposes” (¶ 8).

    Chief Judge Neubauer filed a concurring opinion.

    Probation Revocation – Compelled Statements – “Use” and “Derivative-use” Immunity

    State ex rel. Douglas v. Hayes, 2015 WI App 87 (filed 7 Oct. 2015) (ordered published 19 Nov. 2015)

    HOLDING: The petitioner’s probation was improperly revoked for his refusal to give a statement about his activities to his probation agent because he was not sufficiently informed, before his refusal, that he had both use and derivative-use immunity related to any information he would have provided to the agent.

    SUMMARY: While on probation, petitioner Douglas was arrested in connection to the commission of various criminal offenses. His probation agent sought to question him about these crimes. The agent informed Douglas (both orally and with the use of a Department of Corrections form) that he must account for his activities but that none of this information could be used against him in criminal proceedings.

    Douglas refused to give a statement, and an administrative law judge (ALJ) later revoked his probation solely on that basis. Douglas appealed to the Division of Hearings and Appeals (DHA), which sustained the ALJ’s revocation decision. On certiorari review, the circuit court affirmed the DHA’s decision.

    In an opinion authored by Judge Gundrum, the court of appeals reversed. “We conclude, pursuant to the Fifth Amendment to the United States Constitution and our supreme court’s decision in State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), Douglas’s probation was improperly revoked because he was not sufficiently informed, prior to his refusal [to give a statement], that he had both use and derivative use immunity related to any information he would have provided the agent” (¶ 1).

    With use immunity, particular information provided by an individual cannot be used against that individual in criminal proceedings, whereas with derivative-use immunity, any evidence subsequently discovered by authorities through direct or indirect use of the provided information cannot be used against the individual in criminal proceedings (see ¶ 11).

    Said the court, “there is a significant difference between having only use immunity and having both use and derivative use immunity … and we do not see how the language the agent read to Douglas and/or her additional commentary provided Douglas with ‘sufficient explanation’ that he was afforded not only use immunity but also derivative use immunity” (¶ 15). Accordingly, Douglas’s refusal to give a statement could not serve as a ground for revocation of his probation (see ¶ 16).

    Vehicle Forfeiture – Innocent Owner – Eighth Amendment Excessive Fines Clause

    State v. One 2013, Toyota Corolla/S/LE Four-Door, License #437MXR, VIN #2T1BU4EEXDC038839, Its Tools & Appurtenances, 2013 WI App 84 (filed 28 Oct. 2015) (ordered published 19 Nov. 2015)

    HOLDINGS: 1) The innocent-owner exception to the vehicle-forfeiture statute did not apply to defendant Vogel. 2) The forfeiture of defendant Vogel’s full financial interest in a vehicle was unconstitutional under the Excessive Fines Clause.

    SUMMARY: Steven T. Baumgard and Gladys A. Vogel appealed from the circuit court’s order of forfeiture of a 2013 Toyota Corolla. The defendants argued that forfeiture of the Toyota pursuant to Wis. Stat. section 961.55 was improper because 1) Vogel is an innocent owner of the vehicle under the statute, and 2) the forfeiture violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution.

    The state commenced this vehicle forfeiture action, claiming Baumgard used the Toyota in conjunction with alleged sales of marijuana. The vehicle was purchased less than two months before its seizure and was titled in Baumgard’s and Vogel’s names. $2,500 of the purchase price was funded by the trade-in of another vehicle owned by Baumgard. Vogel paid the remaining $20,000 of the purchase price. Baumgard was supposed to pay her back but has only made two payments, totaling $550.

    The address on the title at the time of purchase was Baumgard’s, and Vogel has a different vehicle of her own and did not have to purchase another as a result of the seizure. Vogel testified that she had no knowledge that Baumgard was engaging in any criminal activity with the Toyota and she never consented to his use of it for such activity. Baumgard alone used the Toyota and paid for the insurance, gas, and maintenance.

    The circuit court held an evidentiary hearing and, at the conclusion of the hearing, determined Baumgard is the actual owner of the Toyota, while Vogel is only a nominal owner, and therefore the innocent-owner defense to forfeiture did not apply. The court then concluded that forfeiture of the Toyota would not constitute an excessive fine under the Eighth Amendment. It ordered the Toyota forfeited, but stayed the order pending this appeal. In a decision authored by Judge Gundrum, the court of appeals affirmed in part and reversed in part.

    The forfeiture statute provides for an innocent-owner exception. See Wis. Stat. § 961.55(1)(d)2. To be entitled to the protection of this exception, one must prove that he or she is the actual owner of the vehicle – not just a nominal owner. In State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), the court identified “possession, title, control and financial stake” as relevant factors to be considered in determining whether one is “the owner” of a vehicle for purposes of the innocent-owner exception. Considering these factors, the appellate court agreed with the circuit court that Baumgard was the actual owner of the Toyota, and Vogel was merely the vehicle’s nominal owner (see ¶ 13).

    The appellate court next considered whether forfeiture of the vehicle violated the Excessive Fines Clause. A punitive forfeiture violates this clause if it is grossly disproportional to the gravity of the defendant’s offense. In this case, the appellate court concluded that forfeiture of the Toyota and Baumgard’s $3,050 financial interest in it (based on his $2,500 trade-in to purchase the Toyota plus the $550 repaid to Vogel) does not violate the Excessive Fines Clause (see ¶ 20).

    However, because Vogel had no culpability with respect to Baumgard’s activities, forfeiture of her full financial interest is necessarily disproportionate and would amount to an unconstitutionally excessive fine (see ¶ 21). Accordingly, the appellate court concluded that “the Toyota is properly forfeited, that $3050 of the proceeds from any sale of the vehicle – Baumgard’s direct financial interest – is properly forfeited, but that any remaining proceeds are to be returned to Vogel. This holding balances the purpose of the forfeiture statute with the need to apply the law in a constitutional manner based on the individualized culpability of persons with an ownership interest in the subject property” (¶ 22).


    Pollution Exclusion – Nonstandard Language – Ambiguity

    Connors v. Zurich Am. Ins. Co., 2015 WI App 89 (filed 15 Oct. 2015) (ordered published 18 Nov. 2015)

    HOLDING: Nonstandard language in an insurance policy’s pollution-exclusion provision was ambiguous; hence, summary judgment should not have been granted in the insurer’s favor.

    SUMMARY: The plaintiff alleged that a foundry where he worked negligently allowed bacteria to be released into the air, injuring him. He filed this action against the foundry’s insurer but the circuit court dismissed his claims on summary judgment on grounds that the insurer’s pollution exclusion foreclosed coverage.

    The court of appeals reversed in an opinion authored by Judge Blanchard. The sole issue was whether the pollution exclusion in the foundry’s policy applies in the context of an occurrence as alleged here (see ¶ 6). “We conclude that the pollution exclusion in the foundry’s policy, which is considerably more detailed than the standard pollution exclusion in many commercial general liability policies, is ambiguous on the question of whether the bacteria are ‘pollutants’ in the context of the occurrence alleged here. The exclusion is ambiguous in this context because the bacteria are not obviously in the nature of the commercial or industrial products or byproducts specified in the pollution exclusion, and therefore a reasonable insured could expect coverage” (¶ 2).

    The court distinguished several cases, including two recent supreme court decisions, “because they interpret the standard pollution exclusion, not the pollution exclusion at issue here” (¶ 17).


    Buildings – Former Tenant – “Vendors” and Restatement (Second) of Torts § 352

    Brenner v. National Cas. Co., 2015 WI App 85 (filed 6 Oct. 2015) (ordered published 18 Nov. 2015)

    HOLDING: When a worker was injured while rehabilitating a commercial property, only the “entity in possession and control” was liable for his injuries, not a former long-term tenant.

    SUMMARY: A worker was seriously injured when he fell through a large hole in the floor of a building owned by MWF. The holes had been made by the machinery of a former tenant, Charter, which manufactured wire. Charter terminated its tenancy in 2009, vacating the premises with the approval of another entity, GBI, which negotiated the lease’s termination. MWF purchased the building in “as-is, where-is” condition, including its “faults,” in 2011. MWF commissioned the rehabilitation work during which the plaintiff was injured. The plaintiff sued MWF, Charter, and GBI for negligence and safe-place violations, but the circuit court granted summary judgment dismissing Charter and GBI. MWF appealed.

    The court of appeals affirmed in an opinion authored by Judge Brennan. The court held that “the former tenant, is entitled to protection as a ‘vendor’ under Restatement (Second) of Torts § 352 because the rationale behind § 352, as well as the caselaw, extends the protection from liability to the one who has relinquished possession of the property to the buyer. Here, Charter relinquished possession of the building to [GBI] in November 2009, one and one-half years before MWF bought it ‘As-Is’ in May 2011” (¶ 5).

    Moreover, MWF had “thoroughly inspected” the building before taking possession. “[The] undisputed material facts show that both MWF and Charter had reason to know that: (1) there were large holes in the metal grate floor that led to a pit; (2) the holes were covered by large plywood panels; and (3) the panels were unmarked and untethered and did not otherwise indicate that they hid the large holes.… Unfortunately for MWF, Wisconsin law holds only the entity in possession and control of the property liable, as the entity in possession and control is the only entity in a position to prevent the accident” (¶ 36).

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