On Point

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinionF
For Long: Joseph L. Sommers

Issue: Whether “restrained or confined” element of false imprisonment was established where the defendant hugged the complainant tightly while committing an act of sexual contact.

Holding:

¶28      This court has previously explained that confinement is the “restraint by one person of the physical liberty of another.” Herbst v. Wuennenberg, 83 Wis.  2d 768, 774, 266 N.W.2d 391 (1978). Nothing in the statute or our case law limits confinement to situations where the defendant locks another person in some sort of structure, as Long suggests.

¶29      In this case, Bobbie D. testified, “He just kept holding on very tight and both arms were around and it was just very tight and he didn’t let go.” We conclude that, based on such testimony, a reasonable jury could have determined beyond a reasonable doubt that Long restrained Bobbie D.’s physical liberty.

Issue/Holding: Consent, for purposes of false imprisonment, is defined comparably to sexual assault:

¶31      Consent is not defined in the false imprisonment statute. Nonetheless, the term is defined in the sexual assault statute as “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have . . . sexual contact.” Wis. Stat. § 940.225(4). In the context of sexual assault, consent requires an affirmative indication of willingness. A failure to say no or to resist does not constitute consent.¶32      In the context of false imprisonment, we also define consent as words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. See id. Long does not point to any words or actions by Bobbie D. that would indicate her freely given agreement to be confined or restrained. Under these circumstances, we conclude that even if the jury did not believe that Bobbie D. said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint.

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion

Issue/Holding: Support for warrantless entry of a residence to effectuate an arrest may be found where the offense is jailable, even if a misdemeanor; State v. Mikkelson, 2002 WI App 152 overruled:

¶27      Our review of the reasoning of Mikkelson, as compared with that of Welsh and Santana, causes us to overrule Mikkelson and to adopt Justice Prosser’s concurrence in State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713. As Justice Prosser noted, Welsh and Santana did not create a bright-line rule requiring the underlying offense to be labeled a felony in order for exigent circumstances to justify a warrantless home entry. ^[8] Id., ¶71 (Prosser, J., concurring). Instead, Welsh held that the gravity of the underlying offense is “an important factor to be considered when determining whether any exigency exists,” Welsh, 466 U.S. at 753, and that where the underlying offense is “a noncriminal, civil forfeiture offense for which no imprisonment is possible,” exigent circumstances will rarely, if ever, be present, id. at 754.

¶28      Welsh does not create a felony/misdemeanor distinction for finding exigent circumstances, contrary to the holding in Mikkelson. Instead, in determining the extent to which the underlying offense may support a finding of exigency, “the critical factor . . . is . . . ‘the penalty that may attach.'” Sanders, 311 Wis.  2d 257, ¶81 (Prosser, J., concurring) (quoting Welsh, 466 U.S. at 754 n.14). We reach this conclusion since the penalty imposed for an offense “‘provide[s] the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.'” Id.(quoting Welsh, 466 U.S. at 754 n.14).

¶29      Accordingly, courts, in evaluating whether a warrantless entry is justified by exigent circumstances, should consider whether the underlying offense is a jailable or nonjailable offense, rather than whether the legislature has labeled that offense a felony or a misdemeanor. To hold otherwise would allow “the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label (‘felony’ or ‘misdemeanor’) chosen by the legislature.” Id., ¶93 (citation omitted). Such a result is not mandated by Welsh.

No bright line, then, any longer separates misdemeanors from felonies for purposes of warrantless entry to arrest. Does this also mean that such entries are necessarily lawful? Not clear. All the majority says on this point, really, is that probable cause to believe Ferguson committed disorderly conduct, a jailable offense, potentially supported warrantless police entry, ¶30. “Gravity” of the underlying offense is an “important factor”: just because the offense is jailable doesn’t mean it’s sufficiently “grave”—or so you might think. And although this is no doubt something to be hashed out case-by-case, the court doesn’t say what ought to be weighed in any given case. Perhaps this is because the viability of Mikkelson wasn’t really presented under the facts and that the majority, despite its protestation to the contrary, ¶30 n. 9, reached an issue that was really an abstraction to the case, and thus engaged in a bit of judicial activism.To belabor the obvious on a separate point: probable cause to arrest isn’t enough, of course, for warrantless entry. There must be some sort of exigency, such as hot pursuit or evidence destruction, e.g., ¶20.

State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk

Issue/Holding: Police had probable cause to believe Popke violated § 346.05, driving on right-side of highway:

¶16      In this case, the officer testified that he was sitting at a stop sign when the defendant turned left onto the road directly ahead of where the officer was sitting. The officer immediately began following the car and his view was not obstructed at any time. The defendant initially turned into the correct lane of traffic. However, the defendant subsequently “swerved” into the left lane of traffic and that resulted in the defendant’s vehicle being three-quarters left of the center of the road, which was identified by a black strip of tar.¶17      Based on this testimony, we conclude that the police officer had probable cause to believe a traffic code violation had occurred, namely operating left of center pursuant to Wis. Stat. § 346.05, and therefore, the traffic stop was reasonable. The officer watched as the defendant drove left of center, and as a result, the officer had probable cause to believe a traffic violation was being committed. Moreover, the circuit court concluded, and we agree, that none of the exceptions to this statute apply. See Wis. Stat. § 346.05(a)—(f). That is, there was nothing that required the defendant to drive left of center.

The court rejects the idea that “momentarily” crossing the center line is not “driving”:

¶18      Wisconsin Stat. § 346.63(3)(a) provides: “‘Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.” The defendant’s actions are consistent with this definition, and thus, he was driving left of the center of the road in violation of Wis. Stat. § 346.05(1). The State posits an interesting question with regard to the defendant’s claim that he was not driving; if the defendant was not driving in the left lane, what was he doing? This question itself reflects the inherent flaw with the defendant’s argument.

State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion
For Lange: Steven M. Cohen

Issue/Holding: Probable cause to arrest for OWI was based on the following factors:

¶24      First, the driving that Officer Hoffman and Officer Penly witnessed is relevant. The driving was not merely erratic and unlawful; it was the sort of wildly dangerous driving that suggests the absence of a sober decision maker behind the wheel. …

…

¶30      Second, the officers’ experience is a consideration. …

¶31      Officer Penly and Officer Hoffman discussed their observations, as well as the question whether they had probable cause to arrest the defendant for operating while under the influence at the hospital. Officer Penly informed Officer Hoffman that in his opinion, probable cause existed to arrest the defendant for operating while under the influence.

¶32      Third, the time of night is relevant. Officer Hoffman’s and Officer Penly’s uncontroverted testimony was that they encountered the defendant about when Saturday night bar-time traffic arrives in Maple Bluff from downtown Madison. It is a matter of common knowledge that people tend to drink during the weekend when they do not have to go to work the following morning.

¶33      Fourth, by the time of the arrest, Officer Hoffman had discovered that the defendant had a prior conviction for operating a motor vehicle while under the influence of an intoxicant. Officer Hoffman could take this evidence into account when determining whether she had probable cause to believe that the defendant was under the influence of an intoxicant while operating his vehicle.^[14]

¶34      Fifth, the defendant’s collision with the utility pole cut off the law enforcement officers’ opportunity for further investigation. The defendant was unconscious, bloody, and lying amid a gasoline-soaked crash scene when Officer Hoffman discovered him. It is neither surprising nor significant that Officer Hoffman failed to detect any odors of intoxicants, to ascertain whether the defendant’s speech was slurred or his balance impaired, to obtain an admission that the defendant had been drinking, to administer a field sobriety test to the defendant, or to discover any empty cans or bottles in the defendant’s compacted and evidently flammable vehicle.

Typical indicia of usage—odors, admissions, etc.—may strengthen probable cause but aren’t necessary to its existence, ¶36. But, the court also emphatically rejects Lange’s claim that refusal to suppress will mean that any accident in and of itself furnishes probable cause; instead, there must be “totality-of-the-circumstances” support, evidenced in this case by the factors listed above, ¶39. The fact that Lange couldn’t be questioned because he was unconscious at the scene, and remained so at the hospital, appears to be significant, but how much so is left unsaid, ¶36. A 3-Justice concurrence spills a bit of ink stressing a point that doesn’t seem to be in dispute, namely that a field sobriety test isn’t a prerequisite for OWI probable cause, ¶¶42-43.

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen

Issue/Holding:

¶37      We conclude that Wagner had an objectively reasonable basis for deciding that a motorist may have been in need of assistance when he stopped behind Kramer’s vehicle. Kramer was parked on the side of a highway after dark with his hazard flashers operating. It was Wagner’s experience that when a vehicle is parked on the side of the road with its hazard flashers operating, typically there is a vehicle problem. His first contact with Kramer was to offer assistance. He said, “Hi. Can I help you with something?” and “Just making sure no vehicle problems.”

¶38      Wagner also acknowledged that he did not know what was going on inside the vehicle, or whether there was a driver present. He approached the vehicle with caution, but to do so was standard police procedure, designed to protect an officer who was entering upon an unknown situation. It was only after Kramer spoke that Wagner’s concern shifted from his community caretaker function to a law enforcement function.

The court then employs the community caretaker “balancing test” (public interest vs. individual’s liberty), comprised of four factors, and concludes that it favors the caretaker function on the particular facts, ¶¶40-46 (largely turning on the idea that the interaction involved a potentially stranded motorist).

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea. A completed Form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the Form. Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, ^[18] the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant.

¶33      We conclude that in the present case the circuit court incorporated the Plea Questionnaire/Waiver of Rights Form into the plea colloquy and that the circuit court’s reliance on the Form was so great that the Plea Questionnaire/Waiver of Rights Form substituted for an in-court colloquy. We do not agree with the court of appeals or the State that the circuit court in the present case fulfilled the mandatory requirements.

¶34      At least with respect to the first two allegations in the defendant’s Bangert motion, we therefore agree with the defendant that his motion does make a prima facie showing of a violation of Wis. Stat. § 971.08(1) or other court-mandated duties by pointing to passages or gaps in the plea hearing transcript. As the defendant asserts, the plea hearing transcript shows that neither the circuit court nor the defendant made any statements during the plea hearing relating to promises or threats made in connection with the defendant’s plea or any statements relating to the range of punishments to which the defendant subjected himself by entering his plea. The plea hearing transcript is completely silent on these matters.

State v. Hansen, 168 Wis. 2d 749, 485 N.W.2d 74 (Ct. App. 1992) (in effect: colloquy insufficient if establishes only that defendant read and understands plea questionnaire form), expressly approved, ¶¶35-38; as is State v. Moederndorfer, 141 Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987) (colloquy may properly incorporate plea form if references are specific enough), ¶¶39-42.Potentially significant development, because the court of appeals all but approved mere, glancing mention of the questionnaire. The supreme court now squarely rejects that view, and though the mandate formally indicates the court of appeals’ decision is “affirmed,” it is more properly described, “affirmed as modified,” something made more or less explicitly by ¶8: “we affirm the decision of the court of appeals, although on different grounds.” And by the following passage:

¶38      The Hansen decision is incompatible with the position taken by the court of appeals in the instant case that when the circuit court ascertains during the plea hearing that the defendant generally understands the contents of the Plea Questionnaire/Waiver of Rights Form, the Form’s contents thereby become an intrinsic part of the plea colloquy and may substitute for an in-court personal colloquy between the circuit court and the defendant. Hansendemonstrates that it is not enough for the circuit court to ascertain that a defendant generally understands the contents of the Plea Questionnaire/Waiver of Rights Form.

Shorter version: Feel free to continue cutting corners with guilty plea forms, just don’t fetishize them.

State v. Tony Payano, 2009 WI 86, reversing 2008 WI App 74
For Payano: Patrick Cavanaugh Brennan

Issue: Payano was convicted of shooting at police officers who entered his apartment under a no-knock warrant; he claimed self-defense (i.e., defending himself against unknown armed intruders); over objection, the State presented an informant’s testimony that the day before he had been at Payano’s apartment and seen Payano with drugs and a handgun: the issue is whether this testimony was properly admitted to provide “context” for the event.

Holding¹:

¶65      The question that inevitably occurs to an outsider looking at this shooting is why Payano shot at the door. This implicates Payano’s claim of self-defense. It also implicates his motive and knowledge. Motive and knowledge are both enumerated purposes for the admission of other acts evidence under Wis. Stat. § 904.04(2).¶66      Payano has never asserted that the other acts evidence was not offered for a proper purpose. In fact, in his brief to this court, Payano explicitly acknowledges that “these are acceptable purposes for offering ‘other acts’ evidence.” The circuit court did not erroneously exercise its discretion on the issue of purpose.

Holding²:

¶72      As the circuit court’s ruling makes clear, the central dispute at trial was whether Payano acted reasonably in self-defense and defense of others when he shot Officer Lutz——whether he knew or should have known it was the police at the apartment door when he shot the gun. In other words, as the State argued, “the jury needed to decide between two competing motives for the shooting: to protect his family, as Payano argued; or to buy time to hide drug evidence, as the State argued.” (Emphasis added.) Payano’s entire defense theory was premised on the fact that he acted reasonably to protect himself and his family when he shot Officer Lutz. Hence, what Payano knew or reasonably believed at the time of the shooting was paramount to the “determination of the action.” Wis. Stat. § 904.01; Sullivan, 216 Wis.  2d at 772; see also Wis. Stat. § 939.48 (1) and (4).

…

¶75      In sum, Kojis’s testimony and the information he provided to Officer Lutz was offered by the State to undermine Payano’s claim of self-defense and defense of others by offering an alternative theory of the case, that Payano’s shooting of Officer Lutz was criminal rather than privileged. Consequently, the State’s other acts evidence satisfies the first prong of the relevancy analysis because it was offered to help prove a “fact [or proposition] that is of consequence to the determination of” Payano’s guilt or innocence. Wis. Stat. § 904.01.

¶76      The other acts evidence satisfies the second prong of the relevancy test as well, because its admission made the State’s claim——that Payano shot the gun to deter the police from entering the apartment so that he would have time to get rid of drugs——more probable than it would have been without the evidence, and it made Payano’s claim——that he shot the gun to protect himself and his family——less probable than it would have been without the evidence. See Wis. Stat. § 904.01; Sullivan, 216 Wis. 2d at 772; Blinka, supra, § 404.6 at 181; see also Sullivan, 216 Wis. 2d at 784 (“Evidence of other acts may be admitted if it tends to undermine an innocent explanation for an accused’s charged criminal conduct.”); Kourtidias, 206 Wis. 2d at 582 (“[T]his other acts evidence was very relevant to this theory of defense.”).

Holding³:

¶93      There is no denying that the other acts evidence regarding a gun and a large amount of cocaine being present at Payano’s apartment the day before the shooting may have caused the “the jury [to] draw the forbidden propensity [or character] inference.” Blinka, supra, § 404.6 at 185. It is certainly plausible that some members of the jury may have decided to convict Payano based on “improper means” upon hearing the other acts evidence. SeeSullivan, 216 Wis.  2d at 789-90; Johnson, 184 Wis.  2d at 340 (citingC hristensen, 77 Wis.  2d at 61).

¶94      Having said that, this is not a classic case of unfair prejudice, likeMcGowan, where the other acts evidence is so similar in nature to the charged act that there is danger the jury will simply presume the defendant’s guilt in the current case. See McGowan, 291 Wis.  2d 212, ¶¶1-2, 9-10, 23. Moreover, the danger of unfair prejudice is not as great as it would be if the other acts evidence were used to prove Payano’s identity or that he committed the charged offense. Cf. Whitty, 34 Wis. 2d at 294 (“[T]he standards of relevancy should be stricter when prior-crime [or other acts] evidence is used to prove identity or the doing of the act charged than when the evidence is offered on the issue of knowledge, intent or other state of mind. McCormick, Evidence (hornbook series), p. 331, sec. 157.”). Although we cannot say that the other acts evidence presented no danger of unfair prejudice to Payano, the danger was not exceptionally high given the nature of the evidence compared with the nature of the charged offense.

¶95      Instead, similar to the other acts evidence offered in Pharr andJohnson, the evidence offered by the State in this case is directly linked andnecessary to the determination of Payano’s guilt. …

…

¶103    The court limited the use of the evidence to “a very narrow point”——namely, as proof that Payano shot the gun, knowing that the police were at the door, so that he could get rid of drugs——and there is no suggestion that the evidence was used for any reason beyond that “very narrow point.” In fact, the court of appeals makes mention in two different paragraphs of its opinion that the State did not use the evidence for any improper purpose. See Payano, 312 Wis.  2d 224, ¶¶31, 35 (“[T]he prosecutor complied with the trial court’s restriction . . . .”).

¶104    Although the lack of a cautionary instruction may be the deciding factor in some cases of whether the evidence is admissible under Wis. Stat. § 904.03, see Wis JI——Criminal 275 at 3, that is not the situation here because the probative value of the evidence far outweighed its danger of unfair prejudice, with or without a limiting instruction, see supra, ¶¶93-98.