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    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 & Thomas J. Hammer

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    Criminal Law

    Retail Theft – Aggregating Charges Under Wis. Stat. section 971.36(3)(a)

    State v. Lopez and State v. Rodriguez, 2019 WI 101 (filed 27 Nov. 2019)

    HOLDING: The state lawfully charged multiple misdemeanor retail thefts as a single felony retail theft by invoking the provisions of Wis. Stat. section 971.36(3)(a).

    SUMMARY: Criminal complaints against defendants Lopez and Rodriguez alleged that, on seven occasions over a two-week period, they stole merchandise from a Wal-Mart store. Lopez, a Wal-Mart employee, would assist Rodriguez at a self-checkout and would pretend to scan items while either not scanning them or voiding the scans. Rodriguez would then exit the store with the stolen merchandise. These seven retail thefts each involved merchandise valued at less than $500 and thus individually would be Class A misdemeanors. However, acting under the authority of Wis. Stat. section 971.36(3)(a), the district attorney aggregated the retail thefts and charged the defendants with a Class I felony because the total value of the stolen merchandise exceeded $500.

    The defendants moved to dismiss the complaints, arguing that the state could only charge them with seven misdemeanors. The circuit court granted their motions. In a published decision, the court of appeals reversed. It concluded that the state had the authority under Wis. Stat. section 971.36(3)(a) to charge the multiple acts of retail theft as one continuous offense. See 2019 WI App 2. The supreme court affirmed the decision of the court of appeals.

    Section 971.36(3)(a) of the Wisconsin Statutes provides that “in any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in the execution of a single deceptive scheme ….” In this case the defense argued that the application of this statute is limited to thefts prosecuted under the general theft statute, which is codified at Wis. Stat. section 943.20. The state contended that the term “theft” as used in Wis. Stat. section 971.36(3) means any type of theft, including retail theft (which is codified at Wis. Stat. section 943.50).

    The supreme court concluded that “theft” under Wis. Stat. section 971.36(3) includes retail theft under Wis. Stat. section 943.50. Thus, the state may charge multiple retail thefts under Wis. Stat. section 943.50 as one continuous offense pursuant to the aggregation provisions of Wis. Stat. section 971.36(3) (see ¶ 24).

    The court reached this conclusion though it did not produce a majority opinion. However, through a lead opinion authored by Justice Ziegler (joined by Chief Justice Roggensack and Justice Hagedorn) and concurring opinions authored by Justice R.G. Bradley and Justice Kelly, five justices agreed that the term “theft” as used in Wis. Stat. section 971.36(3) includes the crime of retail theft.

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet.

    Criminal Procedure

    Search and Seizure – Reasonable Suspicion – Extended Supervision

    State v. Anderson, 2019 WI 97 (filed 15 Nov. 2019)

    HOLDING: A police officer had reasonable suspicion to search the person of a defendant who was on extended supervision.

    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.

    SUMMARY: The defendant was on extended supervision from a prior drug conviction. An officer searched his person based on the officer’s knowledge of the defendant’s criminal background, several tips from informants that he was selling drugs, and the officer’s observation of minor traffic offenses. The trial judge upheld the search, finding that, because the defendant was on extended supervision, he was subject to the reasonable-suspicion standard set forth in 2013 Wis. Act 79 (Act 79) – not the probable-cause standard. In an unpublished opinion, the court of appeals affirmed.

    The supreme court affirmed in an opinion authored by Justice A.W. Bradley. First, the court upheld the determination that the officer was aware that the defendant was on extended supervision when searched. Act 79 permits a police officer to conduct a “full search” of a suspect’s person if there is reasonable suspicion that the suspect violated the law and falls within “one of Act 79’s specified supervision statuses” (¶ 23). The evidence showed that the officer knew about the defendant’s criminal record and that he was “on parole or probation … or extended supervision from that [prior] arrest” (¶ 26).

    Second, the totality of the circumstances, including information from confidential informants, provided reasonable suspicion to justify the search (see ¶ 34). The opinion carefully addresses the reasonableness of relying on information from unnamed “tipsters” when corroborated (¶ 47). It also distinguishes this search from the unlawful search conducted in State v. Gordon, 2014 WI App 44, 353 Wis. 2d 468, 846 N.W.2d 483.

    Justice Hagedorn and Justice Ziegler joined the majority opinion in full but wrote separately to clarify that the supreme court was not deciding whether Act 79 requires a showing that the officer knew of the suspect’s “Act 79 status” (¶ 62). Act 79’s requirements “implicitly suggest some level of advance knowledge by the searching officer” (¶ 67). Also open for review is whether the Fourth Amendment “requires more than the statute commands” (¶ 68).

    Identification Procedures – Single Photos – Dubose Overturned

    State v. Roberson, 2019 WI 102 (filed 3 Dec. 2019)

    HOLDING: Eyewitness-identification procedures are subject to the “linchpin” of “reliability,” and therefore State v. Dubose is “unsound in principle” and is overruled.

    SUMMARY: While investigating a shooting stemming from an attempted drug deal, a police officer showed the victim a single Facebook photo displayed on the detective’s cell phone. The victim stated he was positive (100 percent) that the photo was that of the man who shot him (see ¶ 17). The circuit court granted the defendant’s motion to suppress both the photo identification and any in-court identification (see ¶ 22).

    On an interlocutory appeal, the court of appeals reversed. It ruled that State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, which generally precluded identifications based on “showups,” did not apply to single-photo identifications.

    The supreme court affirmed in an opinion authored by Chief Justice Roggensack. The court reviewed its opinions on eyewitness identification that preceded State v. Dubose before turning to Dubose itself. The pre-Dubose cases required two things. The defendant had to demonstrate that the identification procedure used by police was “impermissibly suggestive” (that is, raising a substantial likelihood of misidentification). If the defense carried that burden, the state had to prove that the identification was nevertheless reliable under the totality of the circumstances (see ¶¶ 34-35).

    The majority said that the Dubose decision rested on social science and a “misunderstanding” of constitutional law (¶ 46) Although Dubose involved an in-person showup, the state action involved was equivalent to the single-photo procedure used in this case (see ¶ 48). Moreover, the majority said, Dubose did not give rise to a “substantial body of law”; thus, “overturning it will have minimal impact” (¶ 65). Said the court: “Dubose was unsound in principle. Therefore, we overturn Dubose and return to ‘reliability [a]s the linchpin in determining the admissibility of identification testimony’” (¶ 3) (citations omitted).

    Applying pre-Dubose law to the record, the court assumed that the single photo was unnecessarily suggestive (step 1) but that the record nonetheless demonstrated it was sufficiently reliable (step 2). The reliability factors are explained in some detail. Ultimately, the accuracy of the identification is for the jury.

    Justice R.G. Bradley, joined by Justice Kelly, concurred except for paragraphs 41 and 42, which “suggest that courts may consult social science research to interpret the constitution.”

    Justice Hagedorn also concurred but wrote separately to make three points: 1) Social science research may be used at trial to attack the identification’s reliability (see ¶ 90), 2) “fundamental fairness” in procedure is not “synonymous” with “unconstitutional” process (¶ 94), and 3) overturning Dubose did not offend stare decisis (see ¶ 95).

    Justice Dallet dissented, joined by Justice A.W. Bradley. “Ultimately the majority erodes the due process protection afforded by the Wisconsin Constitution and places jurors in the impossible position of separating the taint of a suggestive single photo identification from its reliability” (¶ 96). The social science research that supported Dubose is still valid, and the majority is wrong that overruling Dubose will have “minimal impact” (¶¶ 104, 106).

    Juvenile Waivers to Adult Court – Successive Prosecutions – “Once Waived, Always Waived”

    State v. Hinkle, 2019 WI 96 (filed 12 Nov. 2019)

    HOLDING: The Fond du Lac County adult criminal court had exclusive original jurisdiction over a juvenile defendant because juvenile court jurisdiction had already been waived in a pending prosecution in Milwaukee County.

    SUMMARY: In July 2015 defendant Hinkle, then 16 years old, stole a car in Milwaukee and drove it to Fond du Lac. Once there, Hinkle led police officers on a high-speed chase. Hinkle eventually crashed the vehicle, and he was arrested. Delinquency petitions against Hinkle were filed in both Milwaukee and Fond du Lac Counties, along with petitions seeking waiver into adult criminal court.

    The juvenile court in Milwaukee County, after a hearing, waived its jurisdiction over Hinkle pursuant to Wis. Stat. section 938.18, sending the matter to adult criminal court, where he was prosecuted for multiple felonies. While the Milwaukee case was pending, the juvenile court in Fond du Lac County concluded that, under Wis. Stat. section 938.183(1)(b), the waiver by the Milwaukee County court required it to waive jurisdiction over Hinkle to the Fond du Lac County adult criminal court.

    After pleading no contest to various offenses that had been included in the original Fond du Lac delinquency petition, Hinkle sought to withdraw his pleas in Fond du Lac County. He argued that the Fond du Lac court had improperly relied on Milwaukee’s waiver of juvenile jurisdiction. The circuit court denied the motion. In a published decision, the court of appeals affirmed. See 2018 WI App 67.

    In a majority opinion authored by Justice R.W. Bradley, the supreme court affirmed the court of appeals. According to the majority, the plain text of Wis. Stat. section 938.183(1)(b) “places a juvenile under adult court jurisdiction when the juvenile is ‘alleged to have violated any state criminal law’ either (1) after a previous conviction following a waiver by the juvenile court; or (2) when the juvenile court waived its jurisdiction on a violation where criminal proceedings are still pending” (¶ 29).

    The court concluded that “Hinkle met the requisites under para. (1)(b) because the juvenile court in Milwaukee waived its jurisdiction over Hinkle in favor of adult criminal court jurisdiction, and the Milwaukee criminal proceeding was still pending when Hinkle appeared before the Fond du Lac County Circuit Court on the 14-count delinquency petition” (id.).

    The court rejected the defendant’s argument that Wis. Stat. section 938.183(1)(b) mandates automatic adult-court jurisdiction only within the county in which a previous waiver occurred. Said the majority: “We hold the text of the statute does not limit the adult court jurisdiction prescribed in Wis. Stat. § 938.183(1) to the individual juvenile court in the specific county where a juvenile was previously waived. Whenever a juvenile court exercising jurisdiction under ch. 938 (or ch. 48) has previously waived a juvenile – who is alleged to be in violation of any state law and that juvenile is either convicted or the criminal proceeding is still pending – courts of criminal jurisdiction anywhere in Wisconsin have exclusive original jurisdiction. The waiver by the juvenile court means that any pending or future violations by that juvenile must begin in adult criminal court pursuant to the exclusive original jurisdiction assigned to courts of criminal jurisdiction under Wis. Stat. § 938.183(1). Once waived, always waived” (¶ 30).

    In a footnote the court noted that Wis. Stat. section 970.032 provides two ways in which a juvenile may be returned to juvenile court jurisdiction (see ¶ 30 n.14.).

    Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley.

    Justice Hagedorn did not participate in this case.

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