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State v. Gary F. Lemberger, 2015AP1452-CR, petition for review granted 10/11/2016

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

As explained in our post on the court of appeals decision, the first (and substantive) issue builds on State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526, which held that the Fourth Amendment bars the state from arguing to a jury that a defendant’s refusal to consent to a search (for DNA, in Banks’s case) shows consciousness of guilt. A few Wisconsin cases allow the state to elicit the fact the defendant refused a breath test—namely, State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (1980) (Ct. App. 1980), State v. Bolstad, 124 Wis. 2d 576, 370 N.W.2d 257 (1985), and State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (1986). But those cases predate Banks and Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 617 (1989), which held that taking a blood, breath, or urine sample is a Fourth Amendment search. The question, then, is whether the rule of Albrightet al., survive Skinner and Banks.

It’s a neat issue—but the court of appeals refused to address it, which gives rise to the second, procedural issue. Lemberger filed a postconviction motion claiming that, given Banks, trial counsel should have objected to the state’s reference to his refusal to take a breath test. The circuit court denied the motion without a hearing and without a response from the state, and it issued a written decision saying Albrightet al., precluded Lemberger’s claim and faulting Lemberger for not citing those cases in his motion (all without giving him the opportunity to explain why the cases don’t govern the issue). Lemberger appealed, but the court of appeals held he forfeited the argument that Albrightet al., don’t govern because he didn’t make that claim in his postconviction motion and didn’t move the circuit court to reconsider its decision denying the motion.

A court can always address a forfeited issue, as forfeiture doesn’t deprive a reviewing court of jurisdiction; and it seems unlikely the supreme court has accepted review to dodge the substantive issue like the court of appeals did. Nonetheless, SCOW could hold the argument was forfeited and thereby create (implicitly or otherwise) new pleading or procedural requirements that postconviction motions will have to meet to preserve issues for appeal. Anyone doing postconviction litigation will want to keep an eye on this case.

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