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    Wisconsin Lawyer
    July 28, 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 Law

    Felon in Possession of Firearm – Multiple Successive Prosecutions – Double Jeopardy

    State v. Berry, 2016 WI App 40 (filed 26 April 2016) (ordered published 25 May 2016)

    HOLDING: The multiple successive prosecutions of the defendant, for possession of a firearm as a felon and possession of a firearm by someone who has been adjudicated delinquent for a different prior act that would be a felony if committed by an adult, did not violate the defendant’s right to be free from double jeopardy.

    SUMMARY: After a bench trial, defendant Berry was convicted of possession of a firearm as a felon contrary to Wis. Stat. section 941.29(2)(a) (2013-14). Before sentencing, his lawyer discovered that Berry’s prior conviction was only for a misdemeanor – not a felony. The circuit court dismissed the case with prejudice. Thereafter the state charged Berry with possession of a firearm by someone who has been adjudicated delinquent for an act that would be a felony if committed by an adult, contrary to Wis. Stat. section 941.29(2)(b) (2013-14).

    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 the new prosecution, the state relied on the same act of possessing a firearm but invoked Wis. Stat. section 941.29 on the basis of a different prior adjudication (the adjudication for a delinquent act). Berry moved to dismiss the new case on double jeopardy grounds. The circuit court denied the motion, and this interlocutory appeal followed.

    Before the court of appeals, Berry argued that because the circuit court previously dismissed a possession of a firearm as a felon charge against him with prejudice, his right to be free from double jeopardy was violated by the circuit court’s denying his motion to dismiss a later charge of possession of a firearm by a person who has been adjudicated delinquent, which charge was based on the same underlying act of possession (see ¶ 7).

    In a decision authored by Judge Brash, the court of appeals affirmed. It concluded that the two charges brought against Berry are different in law: one requires proof of a prior felony conviction and the other requires proof of a prior delinquency adjudication for an act that, if committed by an adult, would constitute a felony (see ¶ 11). The court held that because the two charges are different in law, Berry’s right to be free from double jeopardy was not violated by the successive prosecutions (see ¶ 17).

    [Editors’ Note: The statutory provisions under which Berry was prosecuted, Wis. Stat. section 941.29(2)(a) and (b) (2013-14), have since been repealed. The same prohibitions now appear in Wis. Stat. section 941.29(1m)(a) and (bm). See 2015 Wis, Act 109.]

    Criminal Procedure

    Mistrials – Double Jeopardy – Manifest Necessity

    State v. Troka, 2016 WI App 35 (filed 21 April 2016) (ordered published 25 May 2016)

    HOLDING: The circuit court erred in granting the state’s motion for mistrial based on a procedural error by the defense; because there was insufficient evidence of any manifest injustice, double jeopardy precluded a retrial.

    SUMMARY: Troka was tried for assorted felonies stemming from his brutal assault of an individual. To refute allegations that he had strangled and severely injured the victim, Troka called several medical witnesses who had personally examined the victim, as well as a third doctor, Tovar, who had formed opinions based solely on his review of medical records. Tovar testified only to his qualifications before the prosecutor objected on grounds that the defense had not provided a report or summary of Tovar’s testimony, as required by statute.

    After three recesses, the trial judge granted the prosecutor’s motion for mistrial on grounds that defense counsel’s miscue had set the table for ineffective assistance of counsel should there be a conviction. A retrial date was set, and the defendant appealed.

    The court of appeals, in an opinion authored by Judge Kloppenburg, reversed the circuit court. Because the defense had not consented to or requested a mistrial, only a showing of “manifest necessity” could authorize a retrial for double jeopardy purposes (¶ 16). The record “does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial” (¶ 19).

    Defense counsel had proposed withdrawing Tovar as a witness subject to a curative instruction (see ¶ 23). The trial judge and the prosecutor contended that this remedy only underscored defense counsel’s ineffective assistance, but the trial record belied any showing that Tovar was an “important” defense witness at trial (defense counsel’s pretrial statements notwithstanding) (see ¶¶ 26-28). Because Tovar was not a “critical” witness, defense counsel’s error could not have generated a manifest necessity.

    Ineffective Assistance – Evidence – Confrontation

    State v. Morales-Pedrosa, 2016 WI App 38 (filed 6 April 2016) (ordered published 25 May 2016)

    HOLDING: Defense counsel was not ineffective for failing to object to other act evidence or expert testimony generalizing about the truthfulness of sexual assault victims, nor was the defendant’s confrontation right violated.

    SUMMARY: A jury convicted the defendant of several criminal charges related to three sexual assaults of a relative. On appeal, he raised several issues involving ineffective assistance of counsel and also asserted that his confrontation right was violated.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. The ineffective-assistance-of-counsel claims involved trial counsel’s failure to object to expert testimony about the veracity of sexual assault victims generally and his failure to object to other act evidence. The state called an expert “forensic interviewer” who testified that “90 percent” of reported child sexual assault allegations are “true” (¶ 12).

    The court recognized the problems inherent in such vouching testimony, leaving “for another day” whether such evidence is admissible in some form
    (¶ 25). On this record, however, trial counsel’s failure to object was not ineffective. The witness had not interviewed the victim, and no Wisconsin case law has directly addressed the admissibility of such generalizations (see ¶ 26).

    Nor was trial counsel ineffective in failing to object to other act evidence, namely, the insinuation that the defendant had sexual intercourse with the victim’s mother when both were underage. While the prosecutor was surely “misguided,” the circumstances involving the mother and the circumstances involving the victim were as different as “night and day”; hence, there was no reasonable probability of a different outcome had the other act evidence been excluded (¶ 30).

    Finally, the defendant’s confrontation right was not violated. The victim testified, and she was cross-examined about her prior statements. Moreover, there was no showing that she was unavailable for further testimony regarding a statement she made to police about her fear of the defendant. A police officer testified to her latter statement but only after the victim had left the stand; the record, however, strongly suggested that she could have been recalled if needed.

    Employment Law

    Unemployment Compensation Eligibility – “Substantial Fault”

    Operton v. LIRC, 2016 WI App 37 (filed 14 April 2016) (ordered published 25 May 2016)

    HOLDING: The employee’s cash-handling errors did not constitute the kind of “substantial fault” that made her ineligible for unemployment benefits.

    SUMMARY: Operton worked for 20 months as a service clerk at Walgreens. During that time, she engaged in approximately 80,000 cash-handling transactions. On eight occasions, there were “cash-handling errors,” most of which involved very small amounts of money in transactions involving Women, Infants and Children (WIC) program checks; Overton was repeatedly warned about the proper procedures for taking WIC checks. 

    The last error was much more substantial and involved accepting a credit card for a $399 purchase without verifying the customer’s identity; the card turned out to be stolen. After that error, Walgreens fired Operton. She then filed for unemployment benefits.

    Walgreens objected to the request, claiming that Operton “was discharged for violation of a reasonable company policy regarding excessive cash discrepancies” that occurred as a result of her “incapacity to perform.” An administrative law judge (ALJ) concluded that Operton was ineligible for unemployment benefits because her discharge was for “substantial fault” and the Labor and Industry Review Commission (LIRC) adopted the ALJ’s decision and also found that Operton’s failure to check the customer’s identification on the last erroneous transaction was a “major infraction.” The circuit court affirmed LIRC. In a majority decision authored by Judge Reilly, the court of appeals reversed the circuit court.

    In 2013, the legislature enacted a new statutory ground for the denial of unemployment benefits: “substantial fault.” The change was prompted “by concerns within the employer community that the prior misconduct standard in Wisconsin was too generous in providing benefits to employees who should not qualify” (¶ 7). Substantial fault includes “those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer ….” Wis. Stat. § 108.04(5g)(a). 

    The new statute also sets forth three acts or omissions by employees that do not constitute substantial fault: 1) one or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction; 2) one or more inadvertent errors made by the employee; and 3) any failure of the employee to perform work because of insufficient skill, ability, or equipment.

    In this case, the principal question was whether Operton’s eight errors were “one or more inadvertent errors” and therefore not “substantial fault” (see ¶ 37) (concurring opinion). The court concluded that one or more “inadvertent errors,” even if warnings are given, are not “substantial fault” under the statute (¶ 25). “The legislature statutorily determined that an employee does not lose their unemployment benefits for making unintentional errors” (¶ 27). “Inadvertent errors, warnings or no warnings, never meet the statutory definition of substantial fault” (¶ 28).

    The courtalso concluded that “LIRC’s finding that Operton’s eighth error was a ‘major infraction’ has no support in the record, and Operton’s failure to meet Walgreens’ expectations under the facts presented does not make Operton ineligible for unemployment benefits under § 108.04(5g)(a)3.” (¶ 32).

    Judge Lundsten filed a concurring opinion.


    Specialized Knowledge – Reliable Methodology

    State v. Chitwood, 2016 WI App 36 (filed 13 April 2016) (ordered published 25 May 2016)

    HOLDING: Wisconsin Statutes section 907.02 governed opinion testimony that the defendant was under the influence of drugs; the record demonstrated that a reliable methodology supported that opinion.

    SUMMARY: The defendant was found bleeding in his car following a crash. A jury convicted him of driving under the influence of a drug that rendered him incapable of safely driving. Over a defense objection, the state introduced opinion testimony by a “drug recognition evaluator,” a trained police officer, that the defendant was under the influence of various drugs, including a narcotic, that left him incapable of operating the car safely (¶ 21). The judge ruled that the officer’s testimony was not “scientific” testimony subject to the Daubert [v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)] reliability requirements of current Wis. Stat. section 907.02.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. The “circuit court erred when it concluded that § 907.02 and Daubert did not apply” (¶ 34). Nonetheless, the record reflected that the witness was qualified and had applied a reliable methodology under Wis. Stat. section 907.02, namely, the drug recognition evaluation (DRE) protocol, which “has been the subject of several published studies and peer reviews” (¶ 36). Moreover, the DRE protocol “is widely accepted and in use in the law enforcement community” (¶ 52).

    The court discussed the 12-step DRE protocol in some detail as well as the secondary literature supporting its reliability (see ¶¶ 37-44). The protocol was tested, shown to have an acceptable rate of error, subject to peer review, and generally accepted by experts in the field. Toxicology tests in this case corroborated the witness’s opinion based on the protocols. Moreover, the officer’s opinion was admissible even though he did not complete all 12 steps.

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