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    Wisconsin Lawyer
    May 01, 2020

    Court of Appeals Digest

    In this column, Prof. Daniel D. Blinka and Prof. Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals.

    Daniel D. Blinka & Thomas J. Hammer


    Illusory Promises – Unenforceable Contracts

    Habel v. Estate of Capelli, 2020 WI App 15 (filed 26 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: An alleged contract permitting the plaintiff to sell sports memorabilia after another person’s death was unenforceable because the plaintiff’s promise was illusory and lacked consideration.

    SUMMARY: Habel operated a sports memorabilia business. Capelli, a friend and “good customer,” owed Habel money for past purchases. The two entered into an agreement by which Habel would not collect on the debt but could sell Capelli’s memorabilia collection after Capelli’s death and take a 10 percent commission. The two reduced their agreement to writing without the assistance of legal counsel.

    After Capelli’s death 16 years later, his widow refused to honor the “agreement,” and Habel sued to enforce it. The circuit court granted summary judgment in favor of Capelli’s estate, ruling that the contract was indefinite, illusory, and unenforceable.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. After reviewing the law on illusory promises, the court observed that under the agreement, “Habel does not promise to do anything, or commit to put himself at any disadvantage or face any detriment” (¶ 12). Habel made no promises. In particular, the court of appeals noted one sentence that clearly indicates that “Habel has not agreed to do anything and [that] explicitly gives him unfettered discretion not to perform the sale” (id.).

    Nor was there consideration. On this point, Habel proffered his own affidavit, which asserted that his forebearance of the debt constituted consideration.

    The court ruled the affidavit inadmissible under the parol evidence rule. “Despite its poor draftsmanship, the agreement is clear in one respect: it unambiguously provides that any mutual promises that provide ‘consideration’ are set forth therein. None binding Habel are provided” (¶ 15).

    Finally, Habel’s demand to perform was not binding on Capelli’s estate. Habel’s argument “ignores the undeniable conclusion that ‘acceptance,’ including that in the form of a lawsuit seeking to compel specific performance, does not make an illusory contract enforceable” (¶ 16). The court distinguished cases involving unilateral contracts, which involve “a promise in exchange for performance” (¶ 21).

    Criminal Law

    Possession of a Firearm Silencer – Wis. Stat. section 941.298 – Right to Bear Arms – Vagueness

    State v. Barrett, 2020 WI App 13 (filed 4 Feb. 2020) (ordered published 26 March 2020)

    HOLDINGS: 1) Wis. Stat. section 941.298 did not infringe on the defendant’s right to bear arms and is not unconstitutionally vague. 2) The defendant failed to establish that the state engaged in outrageous governmental conduct.

    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.

    SUMMARY: Defendant Barrett was charged with one count of possession of a firearm silencer contrary to Wis. Stat. section 941.298(2). Wis. Stat. section 941.298(1) defines a firearm silencer as “any device for silencing, muffling or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating such a device, and any part intended only for use in that assembly or fabrication.” In this litigation the defendant raised several constitutional challenges, each of which the court of appeals rejected in a decision authored by Judge Donald.

    The defendant argued first that Wis. Stat. section 941.298 is an unconstitutional infringement on the right to keep and bear arms, both facially and as applied. He relied principally on District of Columbia v. Heller, 554 U.S. 570 (2008), in which the U.S. Supreme Court invalidated a District of Columbia handgun ban under the Second Amendment to the U.S. Constitution, holding that the amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

    Under Heller, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms” (¶ 18). Hellerstated that the definition of “arms” protected by the Second Amendment is the same today as it was in the eighteenth century; that is, “[w]eapons of offence, or armour of defen[se]” or “any thing that a man wears for his defen[se], or takes into his hands, or use[s] in wrath to cast at or strike another” (¶ 19). Heller also recognized that the Second Amendment protects only “the sorts of weapons ... in common use” and does not extend to “dangerous and unusual weapons” “not typically possessed by law-abiding citizens for lawful purposes” (id.).

    In this case the court of appeals concluded that “[a] silencer does not fall within the definition of ‘arms’ contemplated by Heller – it is not used as a defense nor is it, in and of itself, used to ‘cast at or strike another.’ A silencer does not serve any intrinsic self-defense purpose nor is it ‘typically possessed by law-abiding citizens for lawful purposes[.]’ Silencers, therefore, are not ‘arms’” (¶ 20) (citations omitted).

    The court next considered and rejected the defendant’s argument that Wis. Stat. section 941.298 is void for vagueness. “The statute clearly states that any device used for silencing – whether it was manufactured as a silencer or not – is prohibited by the statute unless a party is registered to own such a device” (¶ 28). Moreover, Barrett cannot contend that the statute is unconstitutionally vague “because his conduct plainly fell within the scope of the statute” (¶ 29).

    Lastly, the defendant argued that his conviction resulted from outrageous governmental conduct. He claimed that 1) he was targeted and induced to commit a crime, and 2) the state intimidated a key witness.

    Said the court with respect to the first contention: “Because Barrett has neither asserted a specific constitutional right violated by the sting operation, nor demonstrated that the State was involved in criminal activity, he has not met his burden of establishing outrageous government conduct” (¶ 32).

    As to the second claim, the court concluded that the defendant did not prove his contention that the state violated his Sixth Amendment right to compulsory process by intimidating one of his witnesses and preventing the witness from testifying (see ¶¶ 33-35).

    Criminal Procedure

    Hearsay – Video Testimony

    State v. Mercado, 2020 WI App 14 (filed 4 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: In a child sexual assault prosecution, reversible error occurred when the court admitted alleged victims’ videorecorded statements that did not comply with Wis. Stat. section 908.08.

    SUMMARY: The defendant was charged with sexually assaulting children with whom he lived. Police officers conducted forensic interviews of the three children. The interviews were recorded, and the recordings were played at trial pursuant to Wis. Stat. section 908.08. The three children testified at trial, although not always in ways consistent with their interviews. One child, for example, could not recall the interview. The jury convicted the defendant.

    The court of appeals reversed in an opinion authored by Judge Brash. First, the trial judge failed to comply with various requirements in Wis. Stat. section 908.08. For example, he did not view the entire video before ruling on its admissibility. It was not sufficient that he viewed the “relevant portions” of the video (¶ 41). Nor did the judge make all findings required by Wis. Stat. section 908.08(3), as explained in the opinion (see ¶ 44).

    Second, the video interviews were not admissible under the residual exception to the hearsay rule, in Wis. Stat. section 908.03(24) (see ¶ 46). Two of the children did not demonstrate that they understood the difference between the truth and falsehood (see ¶ 49). Third, the forensic interviews were not admissible as prior inconsistent statements (see ¶ 54).

    Judge Fitzpatrick dissented. First, the defendant did not object at trial to most of the errors identified by the majority (see ¶ 61). Second, the trial court properly viewed relevant parts of the one video to which the defendant did object; he need not have viewed the “entire” video (see ¶ 81).

    Criminal Records

    “Expungement” of Record When Defendant Is Not Charged With Crime or Is Cleared of Offense – Wis. Stat. section 165.84(1)

    Hall v. Wisconsin Dep’t of Justice, 2020 WI App 12 (filed 26 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: The Wisconsin Department of Justice (DOJ) erroneously refused to “expunge” the petitioner’s arrest record even though the defendant was never charged with the crimes for which he was arrested.

    SUMMARY: Hall was arrested on Sept. 21, 2015 (for possession of an electronic weapon) and on Jan. 11, 2017 (for second-degree sexual assault). A law enforcement agency submitted fingerprint cards to the DOJ for these felony offenses. The cards each included a reference to a prior ordinance violation as to which there was an outstanding bench warrant on the date of the felony arrests. In both instances, the state, within two days after Hall was arrested, decided not to charge Hall with the felonies. He was, however, found guilty of the old municipal offenses.

    Hall requested expungement of the arrests that occurred on Sept. 21, 2015, and Jan. 11, 2017. Wisconsin law provides that, if a person is arrested but then not charged or cleared of the offense, that person has the right to have his or her fingerprint record returned, which the court in this opinion referred to as “expunging” the record from the state’s crime database. See Wis. Stat. § 165.84(1).

    The DOJ refused Hall’s request. “DOJ organizes the crime database by creating ‘cycles.’ Problematically, DOJ has created a ‘cycle’ format in which arrests that have no relation or nexus to one another are included together as one ‘arrest event.’ For example, as in this case, DOJ included minor ordinance offenses that predated the current arrest event by months/years. DOJ argues that it may not expunge an arrest record ‘unless the arrested person is released without charge or is cleared of all offenses’ in the cycle, which it calls the ‘arrest event’ – an all or nothing procedure. DOJ argues that as Hall pled guilty to two municipal offenses that were unrelated in time or course of conduct to the two felonies at issue, the two felonies, despite never being charged, must remain in the database and a part of Hall’s public criminal history report” (¶ 5).

    The circuit court ordered expungement of the felony arrest records.

    The court of appeals affirmed. In the lead opinion, authored by Judge Reilly, the court said the following: “The plain language of the statute is clear: ‘Any person arrested or taken into custody and subsequently released without charge, or cleared of the offense through court proceedings, shall have any fingerprint record taken in connection therewith returned upon request.’ Wis. Stat. § 165.84(1). In this case, Hall was arrested on September 21, 2015, and January 11, 2017, for the crimes of possession of an electronic weapon and second-degree sexual assault, respectively. Hall was never charged with either of those crimes. Hall was ‘released without charge,’ and under the plain terms of the statute, he is entitled to expungement of ‘any fingerprint record taken in connection therewith.’ See § 165.84(1)” (¶ 14).

    Judge Reilly continued as follows: “The legislature included no language in the statute that defines an ‘arrest event,’ and DOJ has no statutory authority to ‘cycle’ unrelated charges together so as to prevent expungement” (¶ 14).

    Chief Judge Neubauer and Judge Gundrum both filed concurring opinions.

    Election Law

    Deactivation of Voter Registrations – Wis. Stat. section 6.50(3) Inapplicable to Wisconsin Elections Commission

    State ex rel. Zignego v. Wisconsin Elections Comm’n, 2020 WI App 17 (filed 28 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: The Wisconsin Elections Commission has no duties under Wis. Stat. section 6.50(3).

    SUMMARY: The plaintiffs brought suit against the Wisconsin Elections Commission, alleging that it failed to comply with Wis. Stat. section 6.50(3). In its summary of the statute, the court of appeals said that Wis. Stat. section 6.50(3) “provides that ‘[u]pon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the elector’ by mailing a notice by first-class mail to the elector’s registration address stating the source of the information” (¶ 49) (emphasis added). “‘If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed,’ then the ‘clerk or board of election commissioners shall change the elector’s registration from eligible to ineligible status’” (id.).

    The circuit court agreed with the plaintiffs and granted a writ of mandamus ordering the commission to comply with the statute and to deactivate the registrations of thousands of electors (see ¶ 1). The court later found the commission and three of its members in contempt for failure to comply with the writ of mandamus.

    In a decision authored by Judge Fitzpatrick, the court of appeals reversed. The issue before the court was whether the commission is the “board of election commissioners” as that phrase is used in Wis. Stat. section 6.50(3). The court concluded that the phrase “board of election commissioners” in this statute does not refer to the commission and that the commission has no duties under Wis. Stat. section 6.50(3) (see ¶ 71). The court reversed the circuit court’s writ of mandamus and contempt order (see ¶ 113).

    Juvenile Law

    Nonsecure Custody Sanction – 10-Day Limit – Calendar Days

    State v. A.A., 2020 WI App 11 (filed 27 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: When a court imposes nonsecure-custody sanctions on juveniles, the sanction (which cannot exceed 10 days) is measured by calendar days, not total hours in custody.

    SUMMARY: A juvenile was placed on supervision because of his habitual truancy. The court later imposed a sanction of placement in nonsecure custody for 10 days. An issue arose as to how 10 days should be measured. The court ordered that A.A. be held in custody from Jan. 16 (the day of the hearing) until Jan. 26. The record did not disclose when A.A. was first confined on Jan. 16 or precisely when he was released on Jan. 26.

    The court of appeals affirmed but modified the order, in an opinion authored by Judge Blanchard. The parties disputed the meaning of the phrase “not more than 10 days” in Wis. Stat. section 938.355(6)(d)1. It was A.A.’s contention that the time is measured in calendar days; “any part of a calendar day served counts as a full day” (¶ 12). The state contended that 10 days “means not more than 10 successive intervals of 24 hours,” for a maximum of 240 hours (¶ 13).

    The court’s opinion is an exhaustive exercise in statutory construction. Finding the provision “ambiguous,” the court considered technical or dictionary definitions, context, closely related statutes, and the need to avoid absurd or unreasonable results. It found “no legislative intent” in the statute’s text to construe “not more than 10 days” to mean either 10 calendar days or 240 hours. “Unsurprisingly, then, we see no legislative intent in the text of § 938.355(6)(d)1. to deviate from the common law rule in support of the calendar day meaning” (¶ 29). Applying the “calendar-day approach,” it held that “any part of any unique calendar day spent in custody is essentially ‘rounded up’ to a ‘day’ of custody” (¶ 32).

    The circuit court erred, however, when it declined to include the “first day” when applying Wis. Stat. section 990.001(4)(d). Put differently, the first day of the sanction is not excluded in computing the endpoint of the 10-day sanction (see ¶ 33).

    Motor Vehicle Law

    Operating While Intoxicated – Prohibited Alcohol Concentration – Evidence of Defendant’s Prior OWI Convictions – Ineffective Assistance of Counsel

    State v. Diehl, 2020 WI App 16 (filed 20 Feb. 2020) (ordered published 26 March 2020)

    HOLDING: In an operating while intoxicated (OWI) prosecution in which the defendant, because of his prior OWI convictions, was charged with driving with a prohibited alcohol concentration (PAC) greater than 0.02, the performance of defense counsel was both deficient and prejudicial when counsel failed to object to the introduction of evidence relating to the defendant’s prior OWI convictions after the defendant stipulated to those convictions.

    SUMMARY: Diehl appealed a conviction for operating a motor vehicle with a PAC and an order denying his motion for postconviction relief. Because Diehl previously had been convicted of three or more OWI offenses, the PAC that applied to him was only 0.02 – not 0.08 as it is for most drivers. At trial Diehl stipulated to his prior OWI convictions for purposes of establishing that he was subject to a 0.02 PAC. Therefore, consistent with State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), evidence of his prior convictions was inadmissible at trial.

    The prosecutor nevertheless asked multiple questions that invited the jury to infer that Diehl was a repeat offender with multiple OWI convictions. During direct examination of the arresting officer, the prosecutor emphasized the difference between the PAC restriction that Diehl was subject to and the normal 0.08 PAC.

    When cross-examining the defendant, the prosecutor asked repetitive questions about whether Diehl knew he was subject to a “.02 restriction” (an irrelevant inquiry because knowledge of the restriction is not an element of the crime). When Diehl denied knowledge of the restriction, the prosecutor asked about prior criminal convictions (Diehl admitted to two), though the questions did not specifically deal with prior OWI offenses. Defense counsel did not object to any of these questions.

    The jury returned a guilty verdict, and postconviction counsel moved for a new trial on grounds that trial counsel was ineffective for failing to object to the prosecutor’s irrelevant questioning as described above. Trial counsel testified that he was unable to recall any strategic reason for not objecting. The circuit court denied Diehl’s motion for a new trial, and Diehl appealed. In an opinion authored by Judge Graham, the court of appeals reversed.

    The appellate court concluded that the challenged questioning was not relevant and created a risk of unfair prejudice. “We further conclude that if trial counsel had objected to this questioning, the circuit court should have sustained the objection based on the rationale set forth in Alexander and based on the rules of evidence” (¶ 32).

    The court also concluded that trial counsel’s failure to object to the challenged questioning was deficient performance. “A reasonably competent attorney defending a repeat OWI charge would have been aware of Alexander and would have been concerned about the extremely high danger of unfair prejudice posed by an inference of prior OWI convictions” (¶ 36).

    Moreover, that deficient performance prejudiced the defendant and undermined the appellate court’s confidence in the reliability of the proceedings. The only disputed issue at trial was whether the defendant’s blood alcohol concentration (BAC) was “above or slightly below 0.02” when he was driving (¶ 39). A blood test taken two hours after the driving showed a BAC of .031.

    “If the State had provided strong evidence that Diehl’s blood alcohol concentration was above the legal limit at the time he was stopped, Diehl might not be able to carry his burden of showing the impermissible propensity inference undermines confidence in the reliability of the proceeding” (id.).

    But this was a close case on Diehl’s BAC at the time of driving, and “[t]he unfair prejudice resulting from the inference that Diehl had prior OWI convictions could have easily tipped the balance in the State’s favor” (¶ 42).

    For all these reasons, the court concluded that Diehl demonstrated that his trial counsel’s performance was deficient and prejudicial, and it reversed the conviction and remanded the matter for a new trial (see ¶ 44).

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