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    Supreme Court Digest

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

    Daniel D. Blinka & Thomas J. Hammer

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    Criminal Law

    Concealed Carry Statute – Safe Transport Statute

    State v. Grandberry, 2018 WI 29 (filed 10 April 2018)

    HOLDINGS: 1) The concealed carry statute and safe transport statute do not conflict. 2) The concealed carry statute is not unconstitutionally vague as applied to the defendant.

    SUMMARY: Defendant Grandberry was convicted of carrying a concealed and dangerous weapon contrary to Wis. Stat. section 941.23(2) (the concealed carry statute). This resulted from an incident in which a police officer discovered a loaded handgun in the glove compartment of Grandberry’s motor vehicle during a traffic stop. Further investigation revealed that Grandberry did not have a valid concealed carry license.

    Grandberry appealed his conviction, arguing that his conduct was in compliance with Wis. Stat. section 167.31(2)(b) (the safe transport statute), which regulates the transportation of firearms in motor vehicles, and that his compliance with the safe transport statute precluded his conviction under the concealed carry statute. In an unpublished opinion, the court of appeals affirmed. In a majority decision authored by Justice Gableman, the supreme court affirmed the court of appeals.

    The concealed carry statute provides that one commits a misdemeanor if he or she “carries a concealed and dangerous weapon.” The statute contains numerous exceptions to the general prohibition in the form of affirmative defenses; for example, it does not apply to peace officers, to individuals holding a valid license to carry a concealed weapon, and to several enumerated others. The safe transport statute provides in pertinent part that “[n]o person may place, possess, or transport a firearm … in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun.”

    The court rejected the defendant’s argument that a conflict exists between these two statutes that can be resolved only by holding that persons in compliance with the safe transport statute do not violate the first element of the concealed carry statute (carrying a dangerous weapon). It held that “the Concealed Carry Statute and Safe Transport Statute are not in conflict because Grandberry could have complied with both by either obtaining a license to carry a concealed weapon pursuant to Wis. Stat. § 175.60 … or by placing his loaded handgun out of reach” (¶ 3).

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The court devoted considerable discussion to the issue of when a firearm is within a person’s reach for purposes of the concealed carry statute. In the context of vehicles, it concluded that “[t]he myriad of hypothetical circumstances that may arise in factual backgrounds in prosecutions for carrying a concealed and dangerous weapon render it impossible for this court to establish a bright-line rule setting forth which parts of a vehicle are and are not within reach…. Nonetheless, citizens and factfinders can find guidance in our precedent and common sense, and should consider factors such as the location of the dangerous weapon in the motor vehicle relative to the location of its possessor, the motor vehicle’s size, and the possessor’s ability to reach the dangerous weapon while in the motor vehicle” (¶ 31).

    Grandberry also argued that the concealed carry statute is unconstitutionally vague as applied to him because a person of ordinary intelligence would reasonably believe that complying with the safe transport statute is sufficient to lawfully place a loaded, uncased handgun in the glove compartment of a motor vehicle.

    The court also rejected this argument, holding “that the Concealed Carry Statute is not unconstitutionally vague because a person of ordinary intelligence has sufficient notice that carrying a concealed and dangerous weapon is unlawful unless one of the enumerated exceptions in the Concealed Carry Statute applies” (¶ 4). “Grandberry could not reasonably believe that placing a firearm in the glovebox of his motor vehicle is permitted under the terms of the Concealed Carry Statute…” (¶ 36).

    Justice Kelly filed a concurring opinion. Justice R.G. Bradley filed a dissent.

    Criminal Procedure

    Wis. Stat. section 974.06 Motion for New Trial – Newly Discovered Evidence

    State v. McAlister, 2018 WI 34 (filed 17 April 2018)

    HOLDING: The circuit court did not erroneously exercise its discretion when it denied without a hearing the defendant’s Wis. Stat. section 974.06 motion based on newly discovered evidence.

    SUMMARY: In 2007, a jury convicted defendant McAlister of attempted armed robbery, armed robbery, and possession of a firearm by a felon for crimes that occurred in 2004. At trial, the state presented testimony from Nathan Jefferson and Alphonso Waters. They testified that McAlister was their accomplice in the robberies. In 2014, McAlister filed a Wis. Stat. section 974.06 motion for a new trial claiming that he had newly discovered evidence, represented by the affidavits of three men who allege that Jefferson and Waters lied when they testified that McAlister was involved in the crimes for which he was convicted and did so to reduce their own punishment.

    The circuit court denied McAlister’s motion without an evidentiary hearing and, in an unpublished order, the court of appeals affirmed. In a majority opinion authored by Chief Justice Roggensack, the supreme court affirmed the court of appeals.

    For a judgment to be set aside on the basis of newly discovered evidence, the defendant must provide sufficient evidence to establish that his or her conviction is a manifest injustice. To obtain an evidentiary hearing for such an allegation, the defendant must show specific facts that establish, among other things, that the evidence is not merely cumulative (see ¶ 31). “Where the credibility of a prosecution witness was tested at trial, evidence that again attacks the credibility of that witness is cumulative. United States v. Champion, 813 F. 2d 1154, 1171 (11th Cir. 1987) (concluding that evidence bearing on the credibility of a witness impeached at trial is cumulative)” (¶ 39).

    In this case, given the testimony adduced at trial, the three affidavits filed in support of the Wis. Stat. section 974.06 motion “were of the same general character and drawn to the same point, Jefferson and Waters lied about McAlister to benefit themselves; therefore, the affidavits are cumulative” (¶ 50).

    The court also addressed the argument that the three affidavits contained recantation testimony, even though Jefferson’s and Waters’ statements were allegedly made before they testified at trial. The court thought that these affidavits “bear a similarity to recantation evidence in that they use what is claimed to be Jefferson’s and Waters’ own words to allege they lied at trial” (¶ 55).

    When testimony that is classic recantation testimony is presented as newly discovered evidence, the courts require that the alleged recantations be corroborated by other newly discovered evidence (see ¶ 56). “Corroboration requires newly discovered evidence of both: (1) a feasible motive for the initial false statement; and (2) circumstantial guarantees of the trustworthiness of the recantation” (¶ 58).

    In this case the court concluded that McAlister has failed both corroboration requirements. First, he failed to present newly discovered motives for Jefferson’s and Waters’ initial testimony, which he claims is false. “Jefferson and Waters clearly wanted to obtain plea bargains that would reduce their imprisonment time, but this motive was fully explored at trial and is not newly discovered” (¶ 59).

    Second, the defendant did not provide newly discovered evidence to support circumstantial guarantees of trustworthiness of the three affiants or of the alleged statements. “To the contrary, the length of time that passed between McAlister’s trial [in 2007] and the submission of the affidavits [5.5-7 years later] cuts against concluding that the affidavits are trustworthy,” and no newly discovered evidence supports this delay (¶ 60). Accordingly, the circuit court did not erroneously exercise its discretion when it denied the defendant’s motion for a new trial without an evidentiary hearing.

    Justice Kelly filed a concurring opinion. Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Evidence

    Expert Opinion Testimony – Reliability

    State v. Jones, 2018 WI 44 (filed 4 May 2018)

    HOLDING: The circuit court properly exercised its discretion in admitting expert opinion testimony on the petitioner’s dangerousness in a Wis. Stat. chapter 980 case.

    SUMMARY: Convicted of multiple sexual assaults in 1993, the petitioner was found to be a “sexually violent person” as defined under Wis. Stat. chapter 980 in a 2013 proceeding. At the commitment trial, the court overruled the petitioner’s objection to various psychological “instruments” used to calculate his future dangerousness for purposes of chapter 980. In an unpublished order, the court of appeals affirmed the circuit court.

    The supreme court also affirmed, in an opinion authored by Justice Ziegler that carefully describes the meticulous record made at the Daubert hearing by the circuit court judge. See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). All experts, both the state’s and the petitioner’s, relied “on substantially the same risk assessment methodology, but give weight to different factors during the process” (¶ 13). Case law and current Wis. Stat. section 907.02, which embraced the Daubert standard used in federal courts, place the circuit judge in the role of the “gatekeeper” charged with ensuring that only reliable expert testimony is introduced (see ¶ 31).

    Although the Daubert rule “is a more burdensome standard, it is not exceedingly high” (¶ 33). The circuit court record was excellent: the judge “considered the relevant facts, applied the proper standard, and articulated a reasonable basis for [her] decision” (¶ 34).

    Concurring in the opinion, Justice R.G. Bradley lamented that the majority opinion had not cited additional case law in elaborating upon its reasoning. She was joined by Justice Abrahamson and Justice Kelly.

    Mental Health Commitments

    Right to Effective Assistance of Counsel – Strickland Standards Applicable

    Winnebago Cty. v. J.M., 2018 WI 37 (filed 18 April 2018)

    HOLDINGS: 1) The respondent in a Wis. Stat. chapter 51 mental commitment extension hearing has a right to the effective assistance of counsel. 2) This respondent failed to establish that he was denied effective assistance when the standards established in Strickland v. Washington are applied.

    SUMMARY: In 2014, J.M. was involuntarily committed for one year pursuant to Wis. Stat. section 51.20. In 2015, Winnebago County filed a petition to extend his commitment. J.M. requested and received a jury trial on the petition. The result of that trial was a 12-month extension of J.M.’s commitment.

    J.M. then filed a post-disposition motion for a new commitment-extension hearing based on ineffective assistance of counsel, or alternatively, in the interest of justice. The principal focus of his challenge related to the failure of his counsel to object to, prevent the admission of, or request a curative instruction regarding evidence presented to the jury of J.M.’s status as a prisoner at the time of the trial, including J.M.’s wearing prison garb at the trial.

    The circuit court denied the motion. In an unpublished opinion, the court of appeals affirmed. In a majority opinion authored by Justice Abrahamson, the supreme court affirmed the court of appeals.

    The court first considered whether J.M. had a statutory right to effective assistance of counsel in his Wis. Stat. chapter 51 commitment-extension hearing and, if so, which standard should apply in evaluating a claim of ineffective assistance of counsel. The court concluded that J.M. had a statutory right to effective assistance of counsel.

    The legislature has provided that the subject of every civil commitment proceeding is entitled to be “represented by adversary counsel.” Wis. Stat. § 51.20(3). “When the legislature provides the right to be ‘represented by counsel,’ the legislature intends that right to include effective assistance of counsel.” (¶ 7).

    The court further concluded that, in the evaluation of a claim of ineffective assistance of counsel at a commitment-extension hearing, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), should be used. This standard, which was originally developed for use in evaluating claims of ineffective assistance of counsel in criminal cases, requires the movant to demonstrate that counsel’s performance was deficient and that the movant was prejudiced by counsel’s deficient performance (see ¶ 29).

    With respect to the prejudice prong of Strickland, the movant must show a reasonable probability exists that the result of the proceeding would be different but for counsel’s deficient performance. The movant must show that he or she was deprived of a fair trial whose result is reliable. If the movant cannot demonstrate prejudice, the court need not determine whether the lawyer’s performance was deficient (see ¶ 31).

    The court concluded that J.M. is not entitled to a new commitment-extension proceeding because he has not demonstrated that he was prejudiced by his lawyer’s performance (see ¶ 46). The evidence Winnebago County presented to support its request for an extension of J.M.’s commitment was overwhelming, and J.M. was unable to demonstrate a reasonable probability that the result of the proceeding would have been different but for his lawyer’s allegedly deficient performance (see ¶ 61).

    The court further held that nothing in the record supported J.M.’s contention that it should exercise its discretionary power under Wis. Stat. section 751.06 to grant a new trial on the ground that the real controversy was not fully tried. “The real controversy was fully tried” (¶ 67).

    Justice A.W. Bradley filed a concurring opinion.

    Real Property

    Foreclosure – Original Note

    Deutsche Bank v. Wuensch, 2018 WI 35 (filed 17 April 2018)

    HOLDING: Presentment of the “original” note by a party’s lawyer was sufficient proof that the holder had possession when the foreclosure action was filed.

    SUMMARY: The bank filed this foreclosure action after the Wuensches stopped paying on the underlying note. The circuit court admitted the “original” note after it was proffered by the bank’s lawyer. It then granted summary judgment in favor of the bank. The court of appeals reversed in a summary disposition.

    The supreme court reversed the court of appeals in an opinion authored by Justice R.G. Bradley. “The issue before this court is whether presentment by a party’s attorney of an original, wet-ink note endorsed in blank is admissible evidence and enforceable against the borrower without further proof that the holder had possession at the time the foreclosure action was filed” (¶ 2). The circuit court compared the original note, which was self-authenticating, with a copy of the note, observing that the two documents were identical (see ¶ 23).

    Under the Uniform Commercial Code, a person who possesses an original note endorsed in blank is the holder of that note. “As Deutsche Bank’s counsel physically possessed the original Note on his client’s behalf at trial, § 403.301 is satisfied. This rule alone resolves the issue in favor of Deutsche Bank” (¶ 24).

    The opinion traces the roots of this doctrine and the sometimes “discordant” Wisconsin case law (¶ 26 n.13). The bank was not required to prove the provenance of the document possessed by the bank’s counsel (see ¶ 29). In short, any such testimony was “entirely unnecessary where, as here, no extrinsic evidence was needed to admit the Note, Wis. Stat. § 909.02(6)” (¶ 30).

    Justice A.W. Bradley, joined by Justice Abrahamson, dissented on grounds that the majority “allows an attorney to introduce dispositive facts through unsworn statements and without calling a witness” (¶ 38). Most pointedly, the bank’s “attorney gave no indication he had personal knowledge of Deutsche Bank’s possession of the Note” (¶ 51).

    Sexually Violent Persons

    Discharge Hearings – Evidence Reviews

    State v. Hager, 2018 WI 40 (filed 19 April 2018)

    HOLDING: In both cases under review, the court of appeals erred in concluding that Wis. Stat. section 980.09(2) limits circuit courts to considering only evidence favorable to the discharge petitions; such review comports with due process.

    SUMMARY: Hager and Carter were committed under Wis. Stat. chapter 980 as sexually violent persons. Both sought discharge through the statutory review procedures provided by chapter 980.

    The supreme court, in an opinion authored by Justice Gableman, held that the court of appeals erred in both cases by concluding that Wis. Stat. section 980.09 limits circuit courts to consider only evidence favorable to a petition for discharge (see ¶ 4).

    At issue were amendments the Wisconsin Legislature made to section 980.09 in 2013. “The result of a plain reading of ‘the court may consider the record’ is that courts are free to review everything in the record, no matter whether it is beneficial or detrimental to the petitioner’s cause. In order to illustrate the breadth of materials circuit courts may consider, the legislature included a host of examples of such materials, which by their nature will contain facts detrimental to the petitioner…” (¶ 27).

    In reviewing the petitions, however, “courts are to carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition, including facts both favorable as well as unfavorable to the petitioner” (¶ 30). These statutory procedures do not violate due process of law, substantive or procedural (see ¶¶ 41, 48) Nor did the U.S. or Wisconsin Constitution preclude the retroactive application of the statute, as construed.

    The court remanded Hager’s case for consideration in light of its opinion. As to Carter, there was no need for a remand, as the circuit court properly applied that statute (see ¶ 33).

    Justice Kelly, joined by Justice R.G. Bradley, concurred in the opinion, but contended that the statute also requires circuit courts to “weigh” the evidence (¶ 66).

    Justice Abrahamson, joined by Justice A.W. Bradley, dissented. “The majority delivers a useless, unworkable, and potentially unconstitutional standard for §§ 21 and 23 of the 2013 Wis. Act 84 amendments to Wis. Stat. § 980.09 that is not helpful to the bench, bar, or litigants” (¶ 80).




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