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    Wisconsin Lawyer
    April 12, 2021

    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

    Criminal Procedure

    Criminal Trials – Defendant’s Objective of Asserting Innocence – McCoy Claim That Defense Counsel Conceded Defendant’s Guilt

    State v. Chambers, 2021 WI 13 (filed 23 Feb. 2021)

    HOLDING: Defense counsel did not concede the defendant’s guilt during closing arguments and continually advocated the defendant’s position of absolute innocence.

    SUMMARY: The defendant, Chambers, was charged with first-degree reckless homicide as well as being in possession of a firearm after having been adjudicated delinquent for a felony. At trial, the state requested that the jury be given the option of convicting the defendant of second-degree reckless homicide. The defendant did not object to the giving of this lesser-included offense to the jury, and his attorney confirmed that the defendant agreed with the proposed jury instructions, including the instruction for second-degree reckless homicide. The jury convicted Chambers of second-degree reckless homicide and the weapons offense.

    After the defendant’s trial, the U.S. Supreme Court decided McCoy v. Louisiana, 138 S. Ct. 1500 (2018), a capital murder (that is, death penalty) case. In McCoy, the Supreme Court held that trial counsel cannot concede a client’s guilt when a client expressly asserts that the objective of the defense is to maintain innocence and the client objects to the concession of guilt (see ¶ 2).

    “Accordingly, to succeed on a McCoy claim, the defendant must show that he or she ‘expressly assert[ed] that the objective of “his defence” is to maintain innocence of the charged criminal acts’ and the lawyer did not ‘abide by that objective and [overrode] it by conceding guilt’” (¶ 20) (citation omitted). (In a footnote, the Wisconsin Supreme Court indicated that, though McCoy was a capital murder case, it was assuming, without deciding, that the McCoy holding applies equally in murder cases for which the death penalty is not a potential penalty (see ¶ 18 n.5).)

    In this case, Chambers raised a McCoy claim arguing that his trial counsel conceded his guilt during closing arguments, contrary to his objective of maintaining absolute innocence and over his objections. The circuit court disagreed with Chambers and held that Chambers’ trial counsel did not concede Chambers’ guilt during closing argument. In an unpublished decision, the court of appeals agreed. In a unanimous opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals.

    The supreme court concluded that the defendant’s attorney never conceded Chambers’ guilt during closing arguments (see ¶ 21). As part of her argument, defense counsel stated that because “whoever shot [Kyle Weary]” did so “at night, in the dark, in the rain, a distance away,” the jury “should consider” second-degree reckless homicide. She concluded the closing argument by insisting that because there was reasonable doubt based on the evidence, the jury “should find [Chambers] not guilty” (¶ 8).

    According to the supreme court, when counsel stated that the jury “should consider” the second-degree reckless homicide option, she was merely restating the language of the jury instruction, which the circuit court gave in advance of the closing arguments (¶ 23). Looking at the entirety of defense counsel’s closing argument, the court concluded that defense counsel never abandoned the defendant’s position of absolute innocence (see ¶ 24).

    Because the record demonstrates that Chambers’ counsel did not concede his guilt, the court assumed, without deciding, that Chambers expressly asserted that the objective of his defense was to maintain innocence of the charged criminal acts, thus satisfying the first requirement of a McCoy claim (see ¶ 21 n.8).

    Lastly, because the court concluded that defense counsel did not concede the defendant’s guilt during closing argument, the court did not address the state’s argument that counsel can maintain absolute innocence while simultaneously suggesting that, in the alternative to absolute innocence, the jury should consider a lesser-included offense if the jury believes the defendant to be guilty (see ¶ 22 n.9).

    Motor Vehicle Law

    OWI – Proof of Prior Out-of-state OWI Convictions

    State v. Loayza, 2021 WI 11 (filed 11 Feb. 2021)

    HOLDING: The state proved, by a preponderance of the evidence, a prior California conviction for operating while intoxicated (OWI).

    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: The defendant was charged in Wisconsin with OWI (ninth offense). The criminal complaint alleged that three of the prior convictions for OWI occurred in California, in 1989, 1990, and 1991. The defendant was convicted in the present case and, at sentencing, claimed that the state failed to prove the 1990 California OWI. This was significant for the defendant because repeat OWI offenders are subject to a system of enhanced penalties based on the number of prior OWI (and related) convictions.

    The circuit court rejected the defendant’s challenge. However, in an unpublished decision, the court of appeals reversed. In a unanimous opinion authored by Justice A.W. Bradley, the supreme court reversed the court of appeals.

    The supreme court concluded that the state met its burden of proving by a preponderance of the evidence that the defendant was convicted of the 1990 OWI in California. Though its analysis was necessarily fact intensive, in sum the court based its decision on several components of the state’s proofs at sentencing, including introduction of a certified copy of the defendant’s driving record from the state of Wisconsin that shows the 1990 California OWI, the defendant’s acknowledgement of the 1990 OWI conviction in an affidavit filed earlier in the present case when he collaterally attacked the 1990 OWI claiming he was not represented by counsel, and documentation from the defendant’s 1990 and 1991 OWI prosecutions in California.

    That documentation included statements made in the 1991 case from which it can reasonably be inferred that the defendant was admitting the existence of the 1990 conviction. Reasonable inferences from the California documentation also supported a conclusion that the defendant had a 1990 OWI conviction for which he was placed on probation.

    Said the court: “In sum, based on a review of the record before us, including Loayza’s admissions contained in the California documentation, together with the DOT driving record and the references to his probation contained in the California materials, we determine that it is more likely than not that Loayza was convicted in California of OWI in 1990. We therefore conclude that the State has met its burden of proof, demonstrating by a preponderance of the evidence the existence of Loayza’s 1990 California OWI conviction” (¶ 45).

    Sexually Violent Persons

    Interlocutory Appeals – Discovery – “Raw Data”

    State v. Jendusa, 2021 WI 24 (filed 10 March 2021)

    HOLDING: The court of appeals properly exercised its discretion in denying an interlocutory appeal; nevertheless, on the merits, the Wisconsin Department of Corrections (DOC) database at issue was discoverable under the applicable statute.

    SUMMARY: In 2016, the DOC filed a petition seeking to commit Jendusa as a sexually violent person under Wis. Stat. chapter 980. A dispute erupted over the statistical measures of Jendusa’s future dangerousness on which the state’s expert relied. Jendusa demanded disclosure of the “Wisconsin-specific base rate” because it was potentially exculpatory. The state opposed disclosure on a variety of grounds. After a hearing addressing the data’s substance, the circuit court judge ordered the DOC to transmit the full, unredacted database to Jendusa but granted a stay of its order. The state appealed, but the court of appeals denied its petition for leave to appeal a nonfinal order.

    The supreme court affirmed the court of appeals in an opinion, authored by Justice Dallet, that addressed not only the discovery issue but also the court of appeals’ discretionary authority to hear appeals from nonfinal orders. It began by “reaffirming our longstanding and sound practice of typically not reviewing the court of appeals’ discretionary denial for interlocutory appeal” (¶ 18). It also “clarify[ied] that the court of appeals need not explain why it denied leave to file an interlocutory appeal.” (id.)

    The supreme court expressly declined to extend an earlier case, resting on an “inapposite rationale,” that did require the court of appeals to explain its reasoning. See State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. Here, the court of appeals’ bare determination that the petition failed to “satisfy the criteria for a permissive appeal,” citing Wis. Stat. section 808.03(2), was sufficient (¶ 22).

    Turning to a de novo review of the merits, the supreme court held that the DOC database was discoverable under Wis. Stat. section 980.036(5), which permits a court to order “production of any item of evidence or raw data that is intended to be introduced at the trial.” Each element of the statute is explained and applied to the raw data at issue here, including the phrase “intended to be introduced at trial.” The court held that in the Wis. Stat. chapter 980 context, the only reasonable reading of this phrase “is that the analysis of the raw data is intended to be introduced” (¶ 30).

    Justice Ziegler dissented, joined by Chief Justice Roggensack and Justice R.G. Bradley. The dissent contended that the controlling statutes require the court of appeals to explain its denials of petitions for interlocutory appeals. The dissent also contended that the discovery statute, Wis. Stat. section 980.036(5), provides “for the discovery of only raw data that is intended to be introduced at trial, not raw data that could be part of an expert’s analysis, which, may or may not be introduced” (¶ 51).


    Trademarks – Ownership – Sale of Business

    Ritter v. Farrow, 2021 WI 14 (filed 23 Feb. 2021)

    HOLDING: Buyers of a resort-management business acquired exclusive ownership of the business’s trademarks upon purchase of the business.

    SUMMARY: This case involved the sale of trademarks as part of the purchase of a business. The three marks related to a resort business in northern Wisconsin. There are three parties: 1) the original owners of the resort, the Ritters; 2) the buyers of the resort-management business, the Farrows; and 3) a condominium association established by the Ritters years before the sale in question. Essentially, the Farrows claimed that by buying the business, they became owners of the trademarks at issue; the Ritters and the condominium association asserted that they retained ownership of the marks despite the sale.

    The circuit court granted summary judgment in favor of the Ritters, finding that the marks became part of the condominium association when it was created in 1998 and that no one exclusively owned them when the 2006 sale occurred. The court of appeals affirmed on other grounds. See 2019 WI App 46.

    The supreme court reversed in an opinion authored by Justice Karofsky. The “old and clear rule, universally followed,” is that ownership of goodwill and trademarks pass to the buyers when a business is sold (¶ 29). Here the marks “represent the resort management services” that the Ritters sold to the Farrows in 2006 (¶¶ 30-31).

    The court rejected the contentions by the Ritters and the condominium association that the 1998 “resort-to-condominium conversion” transferred the marks to the association. Their arguments ran counter to “longstanding trademark and trade name principles.” Nor did they accord with statutes governing condominiums or the declaration that mandated the conversion at issue here (¶ 32). When the Farrows bought the business in 2006, they purchased the “tangible and intangible personal property and rights” bound up with it (¶ 38).

    Chief Justice Roggensack, joined by Justice A.W. Bradley and Justice Ziegler, dissented. They contended essentially that the summary-judgment record revealed uncontested material facts that precluded the Farrows’ claims for trademark infringement (see ¶ 43).

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