On Point

State v. Lamont C., 2013AP1687, District 1, 2/11/14; court of appeals decision (1-judge; ineligible for publication); case activity

¶14      We conclude under the facts in this case that [Officer] Hoffman did have reasonable suspicion … to stop … Lamont C. Hoffman, relying on information provided to him by a robbery victim, located Lamont C. within minutes of the robbery. In the limited time Hoffman was able to speak with the victim, Hoffman obtained information about the robbers’ ages, race and clothing. Lamont C.’s age, race and clothing matched that information. Furthermore, Hoffman found Lamont C. emerging from the east end of the school building within walking distance of the robbery—the same location M.R. gave police when describing the direction in which the robbers ran. Based on the totality of the circumstances, we conclude that Hoffman put forth “specific articulable facts and [drew] reasonable inferences from those facts, that [Lamont C.] [was] violating the law.” See State v. Gammons, 2001 WI App 36, ¶6, 241 Wis. 2d 296, 625 N.W.2d 623.

The age, race, and clothing information wasn’t specific or particularized: Young black males wearing dark hooded sweatshirts. (¶4). So where and when the officer saw Lamont may be what makes this a valid stop instead of mere racial profiling.

¶15      We also conclude that Hoffman had sufficient probable cause to arrest Lamont C. To make a warrantless arrest, a police officer “must have evidence that would lead a reasonable officer to believe that defendant probably committed an offense. It is only necessary that the information available to the officer leads him or her to conclude that guilt is more than a possibility.” State v. Wheaton, 114 Wis. 2d 346, 349-50, 338 N.W.2d 322 (Ct. App. 1983) (internal citations omitted), overruled on other grounds by State v. Pham, 137 Wis. 2d 31, 403 N.W.2d 35 (1987). As stated, Lamont C. fit the description provided by the robbery victim, was found within blocks of the robbery, and was found very shortly after the robbery. Moreover, Hoffman testified that Lamont C.’s demeanor was consistent with someone who had been running—something Hoffman considered relevant both because the victim stated that the robbers ran after noticing a squad car and because Lamont C. denied running. Under the totality of the circumstances, we conclude that Hoffman had reasonable suspicion to believe that Lamont C. was one of the three men that robbed M.R.[3]

---

[3]  We do not address Lamont C.’s argument that Hoffman lacked probable cause to place his hand on Lamont C.’s chest to check his (Lamont C.’s) heart rate. In light of the totality of the circumstances, Hoffman had probable cause to place Lamont C. under arrest regardless of whether he checked Lamont C.’s heart rate.

State v. Lawrence A. Levasseur, Jr., 2013AP2369-CR, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity

The arresting officer used an implied consent form that pre-dated the 2009 amendments to § 343.305, so it omitted language about accidents involving death or serious injury–language that did not apply to Levasseur’s situation. The use of the outdated form didn’t strip the resulting blood test result of its statutory presumption of admissibility and accuracy, applying State v. Piskula, 168 Wis. 2d 135, 483 N.W.2d 250 (Ct. App. 1992), and distinguishing Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243:

¶22      In Smith, the court explained that the analysis for cases in which an officer fails to provide statutorily required information to a defendant is different than the analysis for cases in which an officer provides additional information beyond what is statutorily required to the defendant. Smith, 308 Wis. 2d 65, ¶72. In the former, fail-to-provide scenario, the Smith court stated, courts should apply the analysis from State v. Wilke, 152 Wis. 2d 243, 448 N.W.2d 13 (Ct. App. 1989). The Smith court read Wilke to stand for the proposition that “there cannot be substantial compliance with [Wis. Stat.] § 343.305(4) when the law enforcement officer fails to give the defendant the statutorily required information about penalties.” Id., ¶75. Failure to provide statutorily required information about penalties that apply to the defendant is easily distinguishable from the omission at issue in this appeal. Thus, I see nothing inconsistent in the Smith, Wilke, and Piskula decisions, and, under the logic of Piskula, the officer who read Levasseur the Informing the Accused substantially complied with the requirements of § 343.305(4).

The officer also had probable cause to ask Levasseur to provide a PBT, even though he did not doubt Levasseur’s account that the accident was due to a flat tire and testified he was “on the edge of suspicion” about Levasseur’s impairment. The officer’s subjective assessment is irrelevant, State v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d 531, 671 N.W.2d 660, and even assuming that a flat tire contributed to the accident, an objective view of the facts allows for the inference that impairment might have played a role or increased its severity. (¶¶14-17).

City of Lancaster v. Todd A. Chojnowski & Eric T. Chojnowski, 2013AP1593 & 2013AP1594, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1593; 2013AP1594

Arrest under § 968.075, the mandatory arrest law for domestic abuse offenses, doesn’t preclude a charge under city disorderly conduct statute. While § 968.085(8) prohibits the issuance of a “citation” to a person arrested under § 968.075, that relates to issuance of a citation to appear in lieu of an arrest for a criminal charge, § 968.085(1), and thus doesn’t apply to citations for a civil forfeiture.

Attorney Mark Gumz from the SPD’s Baraboo office has a good deal to say about State v. Hemp, the court of appeals’ latest expunction decision.  Read his comments here.

Eek! “Judge Fired for Sunbathing Nude in Her Chambers” here.

When imposing a sentence, Wisconsin courts may consider the defendant’s demeanor at trial and his remorse.  But a new study suggests that it is very difficult to evaluate remorse across cultural, ethnic and racial lines.  Check out the study here.

“Words Jurors Are Too Dumb to Hear in Public Include ‘Guilty,’ ‘Not Guilty,’ and ‘Innocent.'”  Click here.

If you’ve got a case involving Wisconsin’s newly-adopted Daubert standard, take a look at this post.  A recent 9th Circuit decision tossed out a jury verdict because the trial court failed to make findings regarding the reliability and relevance of expert testimony before admitting it.

What happens when a juror hugs the DA?  Find out here.

“Fewer Prisons and Yet Less Crime.”  Read about it here.

Bill Keller, former editor-in-chief of the New York Times is leaving to launch The Marshall Project, a non-profit journalism start-up focused on the American criminal justice system.  See this article.  Now that should be an interesting website!

Wood County v. Linda S.D., 2013AP1380, 2/16/14, District 4 (1-judge, ineligible for publication), case activity

Do you know what an infinite loop is?  This decision is a good example of one.

Linda S.D. was subject to a Ch. 51 inpatient commitment order, and the County petitioned to extend it.  The test for extending a commitment order is set forth in § 51.20(1)(am).  The issue, according to the court of appeals, is:  what evidence must the County offer to meet the “dangerousness” requirement of §51.20(1)(a)2, and did the County meet it?  And the answer the court gave is:

Under Wis. Stat. § 51.20(1)(am), the County may show dangerousness by showing that “there is a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” As the circuit court recognized, it makes no sense to require the County to re-prove past dangerousness at each subsequent extension hearing.  Slip op. ¶13.

Apparently, Linda S.D. argued that even if the County didn’t have to re-prove past dangerousness, it still had to prove dangerousness, a point the court of appeals dismissed with:

. . . Linda S.D.’s argument does not come to grips with the fact that Wis. Stat. § 51.20(1)(am) specifies what the mode of proof may be at an extension hearing: The county may prove dangerousness by showing that “there is a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” Implicit in § 51.20(1)(am) is that an individual who would be a “proper subject for commitment” if treatment is withdrawn is by definition an individual who would be dangerous if treatment is withdrawn.  Slip op. ¶15.

If you still don’t understand the dangerousness requirment or the evidence needed to satisfy it at an extension hearing, you are not alone.  You will have better luck reading the decision on a similar issue in Waukesha County v. Michael J.S., Appeal No. 2013AP1983, which District 2 issued 10 days ago.  On Point post here.  It’s a shame the Linda S.D.  decision  simply repeats the statutory language without explaining its meaning or applying it to the facts of this case.  That makes it hard for the folks affected to understand why they lost.

State v. Shymika S.W., 2013AP2415, District 1, 2/4/14  (1-judge opinion, ineligible for publication), case activity

Issue:  Whether, in terminating Shymika S.W.’s parental rights to her daughter, the circuit court erroneously exercised its discretion by ignoring § 48.426(3)’s “adoptability factors?”  Those factors are found in § 48.426(3)(a) and (f), and they require consideration of the likelihood of the child’s adoption after termination and whether the child will be able to enter into a more stable and permanent family relationship as a result of termination, taking into account the child’s current placement, the likelihood of future placements, and the results of prior placements.

Holding:  The circuit court’s exercise of discretion was appropriate.  After noting that Shymika S.W. did not contest the circuit court’s findings of fact, the court of appeals highlighted the circuit court’s several comments about her daughter’s adoptability and the evidence supporting those comments.  Slip op. ¶¶ 4-6.

Washington County v. Joseph Harvey Bingen, 2013AP1171, District 2, 2/5/14; court of appeals decision (1-judge; ineligible for publication); case activity

The trial court didn’t erroneously exercise its discretion by denying Bingen’s request for additional voir dire of prospective jurors for his first-offense OWI trial. In particular, Bingen was not able to ask if any jurors had been the victims of or convicted of drunk driving. (¶¶2-3, 6). Though the statute granting the right to a six-person jury in traffic forfeiture cases provides that “[t]he judge shall permit voir dire examinations and challenges for cause,” § 345.43(3)(b), the court’s voir dire was sufficient do determine whether there were any jurors who could not serve fairly in an OWI trial:

¶7        After asking if prospective jurors knew any of the parties, attorneys, or witnesses, the trial court asked the prospective jurors if any of them “for any reason has an interest in how this case is going to come out.” The trial court then concluded that there was no juror who “shouldn’t be on the jury for some other reason that wouldn’t show up in your jury questionnaire.” The trial court concluded, “So I’m satisfied that the six people who have been called forward can serve as our jury.”

The court doesn’t say so, but it effectively reads “shall permit voir dire” to mean “may permit voir dire.” Yet § 345.43(3)(b) contains four “shalls” and one “may” (“…either party may strike 5 names”). Use of the word “shall” creates a presumption that the action is mandatory, and that presumption is strengthened where the legislature uses the word “may” in the same statute because that use demonstrates “the legislature was aware of the different denotations and intended the words to have their precise meanings.” Karow v. Milwaukee County Civil Service Comm’n, 82 Wis. 2d 565, 570-71, 263 N.W.2d 214 (1978).

Of course, even where “shall” and “may” are used in the same statute, “shall” may be construed as directory if such a construction is “necessary to carry out the legislature’s clear intent.” Id. In addition to not acknowledging that it is construing “shall” to mean “may,” the court doesn’t explain why that construction is necessary to carry out the clear intent of the legislature. And explaining that could be difficult in the face of the legislative history cited in Bingen’s brief-in-chief (at 8-9), which shows the statute used to ban almost all voir dire and that the language was added at the behest of a judge who felt banning voir dire was unfair to both sides.