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    Wisconsin Lawyer
    October 07, 2020

    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 J. Blinka & Thomas J. Hammer

    Consumer Law

    Motor Vehicles – Repossession – Residence

    Duncan v. Asset Recovery Specialists Inc., 2020 WI App 54 (filed 30 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: In repossessing the plaintiff’s vehicle, the defendants unlawfully towed it from the basement parking garage of the plaintiff’s apartment building, which was part of her “residence.”

    SUMMARY: The plaintiff was in default on her car loan. A bank owned a security interest in the vehicle. The bank opted for a “nonjudicial” repossession as provided by Wis. Stat. section 425.206(1)(d). A repossession company towed the car from an underground parking garage available to tenants in the apartment building where the plaintiff resided. The plaintiff sued the bank and the repossession company for violating her rights. The circuit court granted summary judgment in the defendants’ favor on all claims based on its determination that their entry into the garage was lawful.

    The court of appeals reversed in an opinion authored by Judge Graham. The court found that the vehicle was unlawfully repossessed under Wis. Stat. section 425.206(2)(b) when the defendants entered the garage shared by the building’s residents (see ¶ 12).

    In so holding, the court construed the meaning of “dwelling,” a term left undefined by the Wisconsin Consumer Act (see ¶ 22). It agreed with the plaintiff that “dwelling” includes “any garage, shed, barn or other building on the premises whether attached or unattached” (¶ 29) (citation omitted). Thus, Duncan’s “garage on the ground floor of her apartment building was part of her ‘dwelling’” (¶ 30). But Wis. Stat. section 425.206(2) “does not prohibit merchants from entering any dwelling; rather, it prohibits merchants from entering a ‘dwelling used by the customer as a residence’” (¶ 31).

    The court rejected any construction of the phrase that turned on “considerations of ownership or the right to exclude” (¶ 33). The court weighed arguments by both sides before concluding that the phrase permits merchants to enter “some other person’s dwelling in the course of repossession’” (¶ 37). Finally, the court ruled that the plaintiff was entitled to summary judgment on this claim.

    The plaintiff also alleged that the defendants had acted “unconscionably,” as provided by Wis. Stat. section 425.107(1). The court reversed the grant of summary judgment in the defendants’ favor, remanding the issue for further proceedings without reaching the merits, including whether this provision is a consumer defense that does not give rise to a claim against a merchant.

    Criminal Law

    Homicide – Self-defense – Lesser-included Offenses – Other Act Evidence

    State v. Johnson, 2020 WI App 50 (filed 8 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: The circuit court erred by not instructing the jury on perfect self-defense, not giving a lesser-included-offense instruction, and excluding other act evidence.

    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: In this homicide case, the defendant unlawfully entered the victim’s home while armed, was discovered and confronted, and then killed the unarmed victim. Charged with first-degree intentional homicide, the defendant claimed self-defense.

    The defendant and the victim were brothers-in-law. The defendant unlawfully entered the victim’s home to search the victim’s computer for child pornography to better substantiate his belief that the victim had committed child abuse and that family members were at risk. The defendant spent several hours searching the victim’s computer before he was discovered. The defendant, allegedly in fear for his life, shot the unarmed victim five times. The circuit court refused to instruct on perfect self-defense. A jury acquitted the defendant of first-degree and second-degree intentional homicide but convicted him of first-degree reckless homicide.

    The court of appeals reversed in an opinion authored by Judge Reilly. First, the circuit court erred by not giving the perfect-self-defense instruction, an issue that implicated the castle doctrine. The “unique facts” produced convoluted arguments that boiled down to whether the defendant could have “reasonably believed” that the victim was “unlawfully” interfering with the defendant (the trespasser), when the defendant used deadly force to defend himself (for example, the victim would have attacked the defendant for having discovered child pornography on his computer). The trial judge erred by deciding this issue herself rather than letting the jury resolve it (see ¶ 21). The defense met its modest burden of coming forward with “some evidence” to support perfect self-defense (¶ 27).

    Second, the trial judge erred by not instructing the jury on second-degree reckless homicide. It was for the jury to determine whether the defendant acted with “utter disregard for human life,” the element that distinguishes first- and second-degree reckless homicide. A reasonable jury could have acquitted the defendant of first-degree reckless homicide but convicted him of second-degree reckless homicide (see ¶ 40). However, the judge acted properly in not instructing the jury on homicide by negligent use of a firearm (see ¶ 42).

    Third, the trial judge erred by excluding the defense’s proffer of other act evidence, namely that the defendant had discovered child pornography on the victim’s computer. Here the court applied the three-step test set forth in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), concluding that the other act evidence was relevant to the defendant’s self-defense claim.

    The court of appeals remanded the case for a new trial on any charges for which the defendant was not explicitly or implicitly acquitted.

    Criminal Procedure

    Search and Seizure – Warrantless Withdrawal of Blood from Unconscious Suspect – Exigent Circumstances

    State v. Richards, 2020 WI App 48 (filed 16 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: Exigent circumstances justified the warrantless withdrawal of a blood sample from an unconscious individual suspected of operating a vehicle while intoxicated.

    SUMMARY: A Waushara County deputy sheriff was dispatched to a car accident at 11:30 p.m. on July 30, 2014. Upon arrival he found the driver, Richards, who appeared to be severely injured. The deputy called for EMS services and tried to talk to the defendant, who was going in and out of consciousness.

    When EMS personnel arrived, they informed the deputy that they would transport the defendant to the Wild Rose Hospital and then a helicopter would transport him to a hospital in Neenah, which was about 50 miles away. While EMS personnel were on the scene of the accident for 15-20 minutes, the deputy remained with the defendant. He was not specifically gathering evidence to support an operating while intoxicated (OWI) charge even though he could smell intoxicants on the defendant. Instead, the deputy’s focus was on the defendant’s injuries and getting him treatment.

    The deputy drove to the Wild Rose Hospital and, before arriving there, decided that there was enough probable cause that the defendant was driving while intoxicated. The defendant was unconscious at the hospital (a finding made by the circuit court), and he was kept in the ambulance there until the helicopter arrived. The deputy asked a member of the Wild Rose Hospital staff to perform a blood draw on the defendant while he was still in the ambulance. The blood was drawn at 12:55 a.m., and the helicopter airlift took place 20 minutes later. No search warrant was obtained before the blood draw. The deputy testified that the process for getting a search warrant in Waushara County would have taken about 30 minutes.

    The defendant’s blood-alcohol content was determined to be 0.196. In a prosecution for OWI (12th offense), the defendant moved to suppress the results of the blood test. The circuit court denied the motion, finding that exigent circumstances justified the warrantless blood withdrawal. In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed.

    The appellate court applied the plurality decision in Mitchell v. Wisconsin, 139 U.S. 2525 (2019), to decide this appeal. It concluded that Mitchell established a rule that if the state can show that four factors were present and the defendant fails to prove two additional factors, exigent circumstances existed and a law enforcement officer’s ordering of a blood draw to measure a driver’s blood-alcohol content without obtaining a search warrant is permissible and does not violate the Fourth Amendment.

    “The four factors that the State bears the burden to show are: (1) law enforcement has probable cause to believe that the driver has committed a drunk-driving offense; (2) the driver is, at pertinent times, unconscious or in a stupor; (3) the driver’s unconscious state or stupor requires that he or she be taken to a hospital or similar facility; and (4) the driver is taken to the hospital or similar facility before law enforcement has a reasonable opportunity to administer a standard evidentiary breath test. If the State meets its burden to show that the previously-mentioned four factors are present, the defendant establishes that a search warrant is necessary for a blood draw of an unconscious driver if the defendant is able to show that: (1) his or her blood would not have been drawn if police had not been seeking BAC information about the driver’s blood alcohol content; and (2) law enforcement could not have reasonably judged that a warrant application would interfere with other pressing needs or duties” (¶¶ 29-30) (internal quotations and citations omitted).

    In this case the appellate court concluded that the state established that 1) there was probable cause to believe the defendant had operated a vehicle while intoxicated, 2) he was unconscious at the time of the blood draw, 3) the defendant’s unconscious state required that he be taken to a hospital, and 4) the transport to the hospital occurred before law enforcement officers had a reasonable opportunity to administer a standard evidentiary breath test (a test conducted with evidence-grade breath testing machinery – not a preliminary breath test, which is not of evidentiary quality (¶ 38 n. 7)).

    Having concluded that the state satisfied the four Mitchell factors for which it has the burden of proof, the appellate court examined whether the defendant met his burden to show both of two factors to negate the conclusion that there were exigent circumstances and that a warrant was not necessary for the blood draw. The court concluded that he failed on both. “In light of Richards’ severe injuries, the only reasonable conclusion is that blood would have been drawn from Richards at some point in the immediate treatment of those injuries” (¶ 44).

    The appellate court also agreed with the circuit court that, considering all pertinent facts, “those circumstances would cause a search warrant application to interfere with other pressing duties of law enforcement. Richards’ severe injuries, safety needs at the accident scene, and the tight window of time before Richards was taken away by helicopter did not allow law enforcement to both obtain a search warrant and meet ‘other pressing needs or duties’” (¶ 48).

    Accordingly, pursuant to the tests set forth in Mitchell, exigent circumstances were established and the warrantless blood draw from the defendant did not violate the Fourth Amendment.

    Search and Seizure – Warrantless Blood Withdrawal – Exigent Circumstances

    State v. Dieter, 2020 WI App 49 (filed 16 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: Exigent circumstances justified the warrantless withdrawal of the defendant’s blood.

    SUMMARY: Defendant Dieter suffered injuries and his passenger was killed in a car crash in Monroe County. A Monroe County deputy sheriff arrived at the scene at 6:16 a.m. and remained there for 27 minutes during which time he spoke with rescue technicians attending to the defendant’s injuries, photographed the scene, determined the identity of the deceased passenger, and spoke briefly with the defendant, who said he and his passenger had been on their way home from a local tavern. The deputy also interviewed two witnesses. Based on the information obtained in these interviews, the deputy concluded that the crash had happened about five hours earlier.

    Dieter was transported by ambulance to a hospital in Tomah, arriving there at 6:51 a.m. The deputy followed. At the hospital, medical staff informed the deputy that Dieter smelled strongly of intoxicants. The deputy also learned that an ambulance was on its way from Sparta, would arrive “soon,” and would transport Dieter to a hospital 45 minutes away, in La Crosse. It was undisputed that at this point, the deputy had probable cause to believe that Dieter had been driving under the influence of alcohol.

    The deputy read to Dieter the “Informing the Accused” form, which explained the implied-consent law. Dieter thereafter refused consent for a blood draw. Knowing that it would take at least 40 minutes to obtain a search warrant from a judge that would authorize a blood draw and expecting the ambulance to arrive within the next 10 minutes, the deputy directed the hospital medical staff to draw a blood sample. The blood draw occurred between 7:20 a.m. and 7:25 a.m. Dieter was loaded into the ambulance shortly thereafter and driven to La Crosse. Test results showed his blood-alcohol concentration to be 0.164.

    Charged with homicide by intoxicated use of a vehicle and other crimes, Dieter moved to suppress the blood test results, claiming they were obtained in violation of the Fourth Amendment. The circuit court agreed and suppressed the evidence. In a decision authored by Judge Graham, the court of appeals reversed the circuit court, holding that exigent circumstances justified the warrantless withdrawal of blood.

    The parties disagreed about whether there were exigent circumstances in this case. The state contended that the unusually long interval between the crash and the initial law enforcement response, as well as Dieter’s imminent transport to La Crosse for medical care, created a “now or never” situation for taking a sample of Dieter’s blood. Dieter disagreed, arguing that waiting an additional 40-60 minutes to obtain a warrant would not have “significantly undermined the efficacy of the search.” He also contended that the deputy should have started the warrant application process at the crash scene, which would have provided him with enough time to obtain a warrant before Dieter was transported to La Crosse (see ¶ 10).

    The appellate court found that during the relatively brief time the deputy was at the scene of the accident, he reasonably prioritized tasks such as documenting the aftermath of the crash and speaking to witnesses at the scene while their memories were still fresh (see ¶ 18). Based on the totality of the circumstances in this case, the court concluded as follows:

    “[The deputy]’s first reasonable opportunity to apply for a warrant was at the time he arrived at the hospital in Tomah at approximately 6:51 a.m. And, from that point forward there is no indication of unreasonable delay. At that time, [the deputy] promptly took steps to determine whether Dieter would consent to a blood draw. It was reasonable for [the deputy] to follow the procedures in [the implied-consent law] for obtaining voluntary consent, even though there was a chance that Dieter would refuse, as he ended up doing” (¶ 19).

    “We further conclude that a reasonable officer in [the deputy]’s position would have believed that applying for a warrant would significantly delay the blood draw and that he did not have time to obtain a warrant without ‘significantly undermining the efficacy of the search’” (¶ 20) (citation omitted). Also, an objectively reasonable officer in the deputy’s position would have believed that the unusually long interval since the crash made it all the more important to take a blood sample without further delay (given the dissipation of alcohol over time) (see ¶¶ 26-27).

    Effective Assistance of Counsel – Attorney Conflict of Interest – Judicial Bias in Sentencing

    State v. Henyard, 2020 WI App 51 (filed 8 July 2020) (ordered published 31 Aug. 2020)

    HOLDINGS: 1) The defendant failed to demonstrate by clear and convincing evidence that his attorney had an actual conflict of interest that adversely affected his representation. 2) The defendant failed to meet his burden of establishing that the circuit court judge was either actually biased in sentencing him or that there existed a great risk of actual bias that established the appearance of bias.

    SUMMARY: The defendant entered guilty pleas to several serious drug felonies, including a count of delivery of heroin for which he was sentenced to 12 years’ initial confinement followed by five years’ extended supervision. He moved to withdraw his guilty pleas, claiming that his Sixth Amendment right to the effective assistance of counsel was violated because his lawyer (hereinafter trial counsel) had an “actual conflict of interest” as a result of having previously presided as a court commissioner at the preliminary hearing in this same case. At that proceeding the defendant waived his right to a preliminary hearing, the commissioner found probable cause to believe that he had committed a felony, and the commissioner bound him over for trial. The circuit court denied the motion for plea withdrawal.

    In a majority opinion authored by Judge Gundrum, the court of appeals affirmed. It rejected the defendant’s request for plea withdrawal because he failed to demonstrate that trial counsel had an actual conflict of interest that adversely affected his performance and thus failed to show that trial counsel performed ineffectively.

    At the hearing on the defendant’s postconviction motion, trial counsel testified that he met and began representing the defendant in May 2017, that he did not recognize the defendant “at all,” that he believed that he had done a conflict check before agreeing to represent the defendant but did not “catch” that he had presided over the December 2016 preliminary hearing, and that he did not become aware that he had presided over the hearing until he received a letter to that effect from postconviction counsel about one year after the defendant entered his guilty pleas (see ¶ 10).

    Said the court: “Because [trial counsel] was at no relevant point aware he had presided over that hearing and made the probable cause finding and bind over decision, and Henyard has suggested no other way in which simply having served as court commissioner at that hearing could have adversely affected [trial counsel]’s representation of him, we must conclude Henyard has failed to demonstrate by clear and convincing evidence that [trial counsel] had an actual conflict of interest that adversely affected his representation” (¶ 19). “Henyard has provided no factual basis for us to conclude that [trial counsel]’s act of presiding over the December 2016 hearing in any way compromised his representation of Henyard” (¶ 25).

    Henyard also appealed the circuit court’s denial of his motion for resentencing. That motion was based on the contention that the judge was biased “against heroin and/or drug delivery offenses” (¶ 1). He pointed to comments of the judge as reported in newspaper articles, which were similar to comments that the judge made at his own sentencing. However, in the view of the appellate court, these comments “were general statements on [the judge’s] view of the gravity of the crime of delivering heroin and other drugs and the importance of protecting the public by deterring future crimes of this nature” (¶ 30). (Quoted excerpts from the newspaper articles appear at paragraph 12.)

    “Our supreme court has stated that protection of the public and future deterrence of those who would contemplate committing similar crimes are key factors a court should consider in meting out a sentence” (¶ 30).

    In sum, the defendant failed to meet his burden of convincing the court of appeals that the circuit court judge was either actually biased in sentencing him or that there existed a great risk of actual bias that established the appearance of bias. As a result, he failed to rebut the presumption that the trial judge was fair, impartial, and without prejudice (see ¶ 36).

    Judge Reilly filed a dissenting opinion, writing that “a judge who makes a substantive ruling and then sells his services as a defense lawyer to the defendant he just presided over has created an actual conflict” (¶ 44), and this is a conflict that cannot be waived (see ¶ 37).

    Motor Vehicle Law

    OWI – Implied Consent – “Informing the Accused” – Evidentiary Consequences of a Refusal

    State v. Levanduski, 2020 WI App 53 (filed 1 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: A law enforcement officer correctly informed the defendant that a refusal to submit to a blood test following her OWI arrest could be used against her in court.

    SUMMARY: After Levanduski’s arrest for OWI (second offense), the officer read her the standard “Informing the Accused” form, which among other things informed the defendant that a refusal to submit to chemical testing could be used against her in court. Thereafter the defendant consented to a blood draw. In the OWI case she moved to suppress the blood test result (a 0.269 blood-alcohol concentration), claiming that her consent to the blood draw was involuntary because she had a constitutional right to refuse to submit to a blood draw and the officer violated that right by misinforming her that if she refused to submit to it, the fact that she refused could be used against her in court. The circuit court agreed and granted Levanduski’s motion. The state appealed.

    In an opinion authored by Judge Gundrum, the court of appeals reversed. It cited the “clear rule” than an OWI suspect’s refusal to submit to a blood draw can be used against the suspect as evidence in court, and it rejected the defendant’s argument that recent decisions of the U.S. Supreme Court and Wisconsin Supreme Court have abrogated that rule (¶ 10).

    Though a refusal to submit to a blood test cannot be the basis for a separate criminal charge, both courts have acknowledged that imposing civil penalties and evidentiary consequences on drunk-driving suspects who refuse to submit to a blood draw is lawful under the Fourth Amendment. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016); State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120 (¶¶ 11-13). (The Dalton court held inter alia that sentencing a defendant to a lengthier jail term for the sole reason that the defendant refused to submit to a blood test violated the rule that criminal penalties may not be imposed for a refusal (see ¶ 13).)

    Accordingly, the court of appeals in this case concluded “that when the officer read Levanduski the Informing-the-Accused statement, ‘If you refuse to take any test that this agency requests … the fact that you refused testing can be used against you in court,’ he correctly stated the law. Because the officer correctly stated the law, Levanduski’s consent to the blood draw was voluntary, and the results of the blood test may be used against her at trial. And because the circuit court granted Levanduski’s suppression motion based upon an incorrect understanding of the law, we reverse the order granting the motion [to suppress] and remand for further proceedings” (¶ 15).

    Real Property

    Easements – Abandonment

    Bohm v. Leiber, 2020 WI App 52 (filed 8 July 2020) (ordered published 31 Aug. 2020)

    HOLDING: The circuit court erred by granting summary judgment on the issue of whether an easement was abandoned; assuming it was not, the construction of a proposed driveway was acceptable under the easement.

    SUMMARY: An easement was created in the 1970s providing for a “roadway” for the “ingress and egress” from one adjacent parcel of property to another. The Bohms bought the parcel that carried the easement in 2000. In 2016, the Leibers purchased the property over which the easement lies (see ¶ 4). A dispute soon developed, resulting in this declaratory-judgment action.

    The circuit court granted summary judgment in favor of the Bohms, after finding they had not abandoned the “roadway” easement despite evidence that they had planted trees and constructed a berm on that land. The trial judge also permitted them to go forward with a proposed “driveway.” The court also ruled in favor of the Leibers that the Bohms could not use the easement right for a parking lot, arboretum, and so on (see ¶ 7).

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Gundrum. On the record, a disputed issue of material fact – whether the easement had been abandoned – precluded summary judgment. The disputed facts related to alleged promises by the Bohms and their act of planting more than 60 trees on the roadway easement (see ¶ 13). Thus, a trial was necessary to resolve this issue.

    The court of appeals affirmed as to the scope of the easement. The Bohms’ “proposed driveway” fell within the meaning of the easement, which permitted a “means of vehicular ingress and egress” (¶ 19).

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