Supreme Court Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Criminal Law | Criminal
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Criminal Law
Carrying Concealed Weapon - Defense of Privilege
State v. Dundon,
No. 97-1423-CR (filed 11 June 1999)
The defendant managed a gas station in Milwaukee. Confronted
with a safe filled to capacity and the unavailability of the
station's armored car service to make a pickup, the defendant
decided to take the contents of the safe (which included $17,000
in cash) to the bank himself. While doing so he carried a concealed
firearm and was arrested for that offense.
The primary issue before the supreme court was whether a person
may assert a defense of privilege to the crime of carrying a
concealed weapon (CCW). In a unanimous decision authored by Justice
Prosser, the court began its analysis by examining the Wisconsin
privilege statute and its various specific provisions. See Wis.
Stat. §
939.45. Concluding that the statute's privileges for
coercion, necessity, defense of persons or property, fulfillment
of duties of a public office, accomplishment of lawful arrest,
and parental discipline did not apply, the court turned to the
last subsection of the statute which establishes a privilege
"when for any other reason the actor's conduct is privileged
by the statutory or common law of this state." The defendant
claimed that this last privilege permits the common law privilege
recognized in State v. Coleman,
206 Wis. 2d 199, 556 N.W.2d 701 (1996), for the crime of felon
in possession of a firearm to apply to the crime of CCW.
Coleman recognized a narrow defense of privilege to a charge
of felon in possession of a firearm when a stringent five-part
test is satisfied. However, the supreme court declined to extend
the Coleman privilege to the unrelated crime of carrying a concealed
weapon. The court further noted that Wisconsin has not recognized
any unique statutory or common law privilege to the crime of
carrying a concealed weapon for more than 120 years.
Having determined that a defense of privilege was unavailable
to the defendant, the court proceeded to dispose of various claims
of trial error raised by the defendant. It concluded that, inasmuch
as no defense of privilege to the crime of carrying a concealed
weapon was or could have been established by the defendant in
this case, the judge did not commit error by excluding evidence
supporting this invalid defense, by refusing to permit defense
counsel to argue this defense to the jury, and by declining to
instruct the jury on the defense.
Injury by Negligent Handling of Dangerous Weapon -
Dogs as Dangerous Weapons
State v. Bodoh,
No. 97-0495-CR (filed 18 June 1999)
The defendant's Rottweiler dogs chased a 14-year-old
boy who was riding his bicycle. The dogs pulled the boy from
his bike and bit him several times, causing injuries requiring
more than 300 stitches. As a result of this incident the defendant
was charged and convicted by a jury of injury by negligent handling
of a dangerous weapon, contrary to Wis. Stat. section
940.24.
In a unanimous decision authored by Justice Bablitch, the
supreme court affirmed the conviction. It concluded that a dog
can be a dangerous weapon if used or intended to be used in a
manner calculated or likely to cause death or great bodily harm
and that there was sufficient evidence presented to the jury
to prove that the defendant did so use or intend to use his dogs.
This included proof that the defendant regarded his animals as
"watchdogs." The evidence included several examples
of aggressive and vicious behavior by these dogs that demonstrated
improper or insufficient training. There was no evidence showing
that the defendant did anything to correct the aggressive behavior
of his dogs.
The court cautioned that not all dogs are dangerous weapons
and not all dog owners whose dogs bite another person can be
subject to prosecution under section
940.24. It is only when there is sufficient evidence that
the defendant intended to use his or her dog as a dangerous weapon
that the person can be liable under the statute.
The court further concluded that the state demonstrated that
the defendant was "handling" his dogs at the time of
the attack (an element of the crime) even though he was not present
when the attack occurred and was, in fact, out of state at the
time. The court concluded that a person need not be physically
present to "handle" a dog as that term is used in the
statute and that there was ample testimony that the defendant
was responsible for supervising, directing, and controlling his
dogs.
Finally, the court held that the evidence was sufficient to
prove that the defendant was criminally negligent in the handling
of his dogs as that phrase is used in the statute. There was
considerable testimony that the dogs were frequently loose and
running at large in the community and that they had been involved
in prior unprovoked attacks. Even though the defendant took steps
to contain the dogs, given the apparent nature of the dogs and
their history, as well as their size and power, the court concluded
that there was sufficient and credible evidence in the record
to support the jury's determination that a person of ordinary
intelligence and prudence would reasonably foresee that failure
to more adequately contain the dogs, especially when out of town,
would subject others to an unreasonable and substantial risk
of death or great bodily harm.
Criminal Procedure
Revocation of Probation - Hearing Before
Administrative Law Judge - Separation of Powers
State v. Horn, No.
97-2751-CR (filed 11 June 1999)
The defendant challenged the constitutionality of Wis. Stat.
section
973.10(2), which authorizes administrative, rather than judicial,
revocation of probation. The circuit court agreed with him and
declared the statute unconstitutional as a violation of the separation
of powers doctrine.
Before the supreme court the issue was whether it is within
the exclusive power of the judiciary to determine whether a defendant
has violated the court-imposed conditions of probation and whether
probation should be revoked and the defendant sent to prison.
In a unanimous decision authored by Justice Bablitch, the supreme
court held that disposition of a criminal case, including imposing
and revoking probation, is within powers shared among the branches
of government. Because the legislative delegation of probation
revocation to the executive branch does not unduly burden or
substantially interfere with the judiciary's constitutional
function to impose criminal penalties, the court concluded that
section
973.10(2) is constitutional.
Responding to the defendant's assertion that it is striking
that Wisconsin is the only state that requires administrative
rather than judicial probation revocation, the court noted that
it analyzed the statute cited above using a separation of powers
analysis based on the Wisconsin Constitution. The court further
observed that nothing in the federal constitution forbids a state
from providing for administrative revocation of probation imposed
by a court. Because neither the federal constitution nor principles
of due process require that probation revocation proceedings
be conducted before a court, the supreme court was not persuaded
by other jurisdictions relying on judicial rather than administrative
probation revocation.
Guilty Pleas - Failure of Defendant
to Personally Articulate His Plea on the Record
State v. Burns,
No. 96-3615-CR (filed 22 June 1999)
In open court and in the presence of the defendant, defense
counsel informed the judge that the defendant was prepared to
change his plea from not guilty to no contest to a charge of
homicide by intoxicated operation of a vehicle. The defendant
had completed and signed a plea questionnaire and waiver of rights
form on the morning of the hearing, which was filed with the
circuit court. On the form the defendant indicated his wish to
enter a plea of no contest to the charge. The circuit court engaged
the defendant in an on-the-record colloquy to establish that
the defendant understood the written plea questionnaire, was
entering the plea voluntarily, was aware of the potential penalties,
and understood that by entering a plea he would waive important
constitutional rights. However, the circuit judge failed to ask
the defendant on the record to verbalize his plea of no contest
and the defendant never spoke those words.
The issue before the supreme court was whether Wis. Stat.
section
972.13(1) requires that a defendant expressly and personally
articulate a plea of guilty or no contest on the record in open
court in order for a judgment of conviction to be entered on
the plea. In a majority opinion authored by Chief Justice Abrahamson,
the court affirmed the judgment of conviction, because the only
inference possible from the totality of the facts and circumstances
in the record is that the defendant intended to plead no contest.
Despite this conclusion, the court expressed deep and continuing
concerns about affirming a conviction based on a plea when the
defendant has not expressly and personally articulated that plea
on the record in open court. "A defendant expressly and
personally pleading guilty or no contest on the record in open
court is the best way for a circuit court to assure itself that
the defendant has personally made the decision to so plead. This
court urges circuit courts to follow the usual and strongly preferred
practice of asking defendants directly and personally in open
court and on the record how they plead to the charged offenses
and of entering the pleas on the record."
Justice Bradley filed a dissenting opinion.
Ineffective Assistance of Counsel - Conflict of Interest
State v. Love, No.
97-2336-CR (filed 23 June 1999)
This case concerns a relatively unique set of facts. In 1995
the defendant was charged with new crimes that led to the revocation
of his probation. When he was returned to court for sentencing
on the original charge, he was represented by a public defender
who also happened to have been the assistant district attorney
who represented the state at the original sentencing. The defendant
later filed a postconviction motion alleging that the public
defender/former prosecutor had rendered ineffective assistance
of counsel. The circuit court denied the motion but the court
of appeals reversed, holding that the defendant was entitled
to a resentencing without having to demonstrate either an actual
conflict of interest or prejudice.
The supreme court, in an opinion written by Justice Prosser,
reversed the court of appeals. Extensively reviewing the case
law on ineffective assistance of counsel and conflicts of interest,
the supreme court held that "in order to establish a Sixth
Amendment violation on the basis of a conflict of interest in
a serial representation case, a defendant who did not raise an
objection at trial must demonstrate by clear and convincing evidence
that his or her counsel converted a potential conflict of interest
into an actual conflict of interest by (1) knowingly failing
to disclose to the defendant or the circuit court before trial
the attorney's former prosecution of the defendant, or (2)
representing the defendant in a manner that adversely affected
the defendant's interests." On this record the defendant
failed to make the requisite showing.
Guilty Pleas - Procedures - Withdrawal
State v. Brandt,
No. 97-1849 (filed 8 June 1999)
The defendant pleaded guilty to forgery and theft. Before
entering the plea, his lawyer read him a guilty plea questionnaire
that the defendant later signed. Attached to the questionnaire
was an addendum that contained incorrect information about the
offenses he was pleading to. At the guilty plea colloquy the
trial judge conveyed correct, complete, accurate information
about the defendant's crimes and the rights he was waiving.
Some time later, the defendant brought a motion to withdraw based
on the incorrect information set forth in the addendum and on
which he claimed to have relied. The lower courts affirmed the
convictions.
The supreme court, in an opinion written by Justice Bradley,
also affirmed. The law clearly requires that the defendant "understand"
his guilty plea. The defendant's argument "hinge[d]
on two facts: (1) the plea questionnaire and the plea colloquy
described different crimes; and (2) the circuit court did not
notice this inconsistency and clarify the matter with Brandt."
Trial courts, however, have discretion in how to conduct the
plea hearing and are not required to use the questionnaire. Here
the judge was authorized to "order the completion of a plea
questionnaire but then conduct its colloquy disregarding in whole
or in part that questionnaire." In cases where judges ignore
the plea questionnaire and use the colloquy, reviewing courts
will scrutinize the colloquy; "the adequacy or deficiency
of the plea questionnaire is not at issue because it does not
constitute the basis on which the plea is accepted." The
supreme court explicitly distinguished cases where the judge
relies on the information in the plea questionnaire to demonstrate
the defendant's understanding.
Competency Hearings - Time Limits
State ex rel. Hager v. Martin,
No. 97-3841-W (filed 16 June 1999)
The defendant was held in custody from July 1997 to December
1997, awaiting an examination to determine whether he was competent
to stand trial for numerous criminal charges against him. In
this habeas corpus action he now seeks dismissal of all the pending
charges against him and release from custody claiming that the
statutory time limits for a competency examination were violated.
The first issue before the supreme court was whether a petitioner
can raise an issue of statutory interpretation on a writ of habeas
corpus. In a decision authored by Justice Wilcox, the court concluded
that a question of statutory interpretation may be considered
on a writ of habeas corpus only if noncompliance with the statute
at issue resulted in the restraint of the petitioner's liberty
in violation of the constitution or the court's jurisdiction.
The second issue before the court involved the question of
whether there was a jurisdictional defect because the competency
examination was not conducted within statutory time limits. The
supreme court answered in the negative. Pursuant to Wis. Stat.
section
971.14(2), a competency examination ordered to be conducted
on an inpatient basis must be completed and the report of the
examination filed within 15 days after the examination is ordered.
However, if the court orders the defendant to be examined by
the Department of Health and Family Services or a department
facility, the department shall determine if the examination is
to be done on an inpatient basis and, if so, the 15-day time
period begins to run upon the defendant's arrival at the
inpatient facility.
The court order for the competency examination in this case
directed that the examination be conducted at Winnebago -
a department mental health facility. Because the defendant was
never transported to the Winnebago facility, the time limit for
conducting the examination never started to run. There was thus
no violation of section
971.14(2).
Chief Justice Abrahamson filed a concurring opinion with which
Justice Bradley joined.
Return of Seized Property - Money as "Contraband"
Jones v. State,
No. 97-3306 (filed 3 June 1999)
This case involves the interplay of two statutory schemes
relating to the return of seized property.
Wis. Stat. section
961.55(1) provides among other things that all property,
real or personal, including money, directly or indirectly derived
from or realized through the commission of any crime under the
controlled substances chapter of the Wisconsin Statutes and any
drug paraphernalia are subject to a state forfeiture action.
Seizure without process may be made if it is incident to arrest.
The statute further provides that any property seized but not
forfeited shall be returned to its rightful owner, and any person
claiming the right to possession of seized property may apply
for its return to the circuit court.
Wis. Stat. section
968.20(1) provides that any person claiming the right to
possession of property seized with or without a search warrant
may apply for its return to the circuit court. If the right to
possession is proved to the court's satisfaction, it shall
order the property, other than contraband, returned if it is
not needed as evidence or all proceedings have been completed.
The first issue before the supreme court in this case was
described in the opinion as follows: If property is seized pursuant
to a search that leads to a charge of a violation of the Uniform
Controlled Substances Act (Wis. Stat. ch. 961) and the state
has not initiated forfeiture proceedings, may an interested party
seek return of the property under Wis. Stat. section
961.55? In a decision authored by Justice Wilcox, the court
concluded that the Legislature intended that the return of property
provision in section 961.55 can only be triggered by an unsuccessful
forfeiture action brought by the state. In all other situations
where the state has not initiated a forfeiture action, a person
claiming the right to property seized by the authorities is limited
to the procedures set forth in Wis. Stat. section 968.20.
The second issue before the court was specified as follows:
If the interested party brings an action for return of property
under Wis. Stat. section
968.20, is cash considered "contraband" within
the meaning of section 968.13(1), particularly when the charge
arising out of the property seized during the search is ultimately
dismissed? The court concluded that when the state has not instituted
forfeiture proceedings and an interested party seeks return of
seized property under section 968.20, in order to retain the
property, the state must establish that the property is either
contraband or is needed as evidence in a case. For property alleged
to be contraband, the state must establish a logical nexus between
the seized property and illicit behavior on the part of the petitioning
property owner. If property is found to be contraband, then the
property need not be returned whether criminal charges ultimately
are filed or not.
The court further concluded that the notion of "contraband"
encompasses not only those items that are illegal per se, such
as controlled substances or forged money, but also those items
that are used, acquired, or transferred illicitly. Said the court,
money that is established to have been acquired through the sale
of or used to purchase controlled substances certainly constitutes
contraband under section
968.13(1)(a) (the statute defining the term).
Finally, the court concluded that when the state contends
that property need not be returned under section 968.20(1) because
it constitutes contraband, the state must establish this by the
greater weight of the credible evidence.
Justice Prosser filed a concurring opinion. Justice Bradley
filed a dissent that was joined by Chief Justice Abrahamson.
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