On Point

Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision
For Smith: Kirk B. Obear

Issue/Holding: By reading the required statutory information verbatim, the officer fully complied with § 343.305(4); he did not err by failing to inform the driver that he might incur penalties different from those in Wisconsin relative to the state that issued his license nor by telling the driver that if he refused to take the chemical test he would get a hearing within 10 days.

¶56  The principal case is County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), in which the court of appeals set forth a three-pronged inquiry for assessing the information process mandated by Wis. Stat. § 343.305(4). ^[42] The Quelle court held that a circuit court must answer the following three questions in the affirmative before determining that the information imparted by the law enforcement officer is inadequate:

(1) Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) . . . to provide information to the accused driver;
(2) Is the lack or oversupply of information misleading; ^[43] and
(3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing? ^[44]

…¶81  We disagree with the defendant that the Deputy’s statement of the applicable penalties was erroneous.  The Deputy accurately stated the Wisconsin law.  Regardless of whether the Deputy accurately stated the law of Louisiana, neither the deputy nor the defendant believed that the Deputy was stating the law of Louisiana.

¶82  Officers impart information about Wisconsin law and cannot be required to decide whether another state’s law might govern or to explain that other state’s law.  Imparting information about Wisconsin law is all that can be expected or required of Wisconsin law enforcement officers.  The defendant’s argument about Louisiana law is unconvincing.

¶83  The defendant also contends that the Deputy provided the defendant with erroneous information when the Deputy allegedly stated that if the defendant refused to submit to chemical testing, the defendant would be entitled to a hearing within ten days.  As the defendant points out, the defendant was entitled to request a refusal hearing within ten days; he was not entitled to have such a hearing within ten days. ^[68]

…

¶86  The absence of a finding about what the Deputy told the defendant and whether any misstatement contributed to the defendant’s refusal to take the test does not impair our ability to resolve the present case.  The defendant failed to make a prima facie showing, as required by the Ludwigson case, that the Deputy’s erroneous statement about a hearing contributed to the defendant’s refusal to submit to chemical testing.  Nor does the Deputy’s testimony suggest that the defendant cared about the timing of the refusal hearing.  The Deputy’s testimony instead shows that the defendant initially decided to submit to chemical testing after his discussion with the Deputy and then changed his mind, apparently because he was unwilling to follow the proper procedure for submitting a breath sample.  Even assuming that the defendant has satisfied the first two prongs of the Quelle inquiry, he has not satisfied the third prong.

State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner

Issue/Holding:

¶81      We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of “school premises.” Under Wis. Stat. § 939.632, the crime of mayhem is specifically included in the definition of “Violent Crime.” Violent crime also includes a number of other crimes, such as homicide, battery, sexual assault, kidnapping, arson, intimidation of a witness, robbery by use of a dangerous weapon, child enticement, sexual exploitation of a child, and soliciting a child for prostitution.

¶82      Thus, the legislature seeks to deter a broad swath of violent or potentially violent crimes by increasing penalties for those crimes that occur within 1,000 feet of school premises. One possible reason for such a law is to create a safe, or at least safer, zone around our schools where the population of children is likely higher. Achieving safety zones around our schools is a legitimate governmental interest. Children should feel safe at school and, if possible, on their way to school. The legislature seeks a safety zone in order to create a safe haven that children may not have further away from school. Moreover, a safety zone around schools fosters a good learning environment.

¶83      The 1,000-foot perimeter is rationally related to the government’s interest. One thousand feet is a reasonable distance around schools so as to further the legislature’s goal of creating safety zones around our schools. The legislature has clearly concluded that children congregate on or near school premises and are more likely to live near school premises. While one may argue that any number of feet is to some extent arbitrary in that the legislature chose a particular distance, the 1,000-foot perimeter is not patently arbitrary. Moreover, it is rationally related to the government’s interest.

The State bears a burden of proof, however minimal — see, e.g.,State v. Conklin, Or App No. A127226, 7/11/07.

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue:  Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense.

Holding: 

¶52 … (W)hen Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record.

¶53 We further note that this court recently held that a presentence report, which listed the defendant’s crime and his or her date of conviction, was sufficient to “constitute an official report that would serve as prima facie proof of habitual criminality” for purposes of a penalty-enhancement statute. State v. Bonds, 2006 WI 83, ¶48, 292 Wis. 2d 344, 717 N.W.2d 133. We are satisfied that the same is true in the present case, because the presentence report listed LaCount’s period of actual confinement on the prior conviction in question. [10] We are satisfied that the presentence report, combined with the certified judgment of conviction, was a judicial record, not an executive branch record, even though it was prepared by the Wisconsin Department of Corrections. As a result, we are satisfied that the circuit court’s finding that LaCount was a habitual criminal did not violate LaCount’s right to a jury trial, because the relevant information could be readily determined from a judicial record, here the presentence report.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) says: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The rationale it offers for this “prior-conviction exception” is: “Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction … mitigate[] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” However, § 939.62 requires that the qualifying conviction have occurred “during the 5-year period immediately preceding the commission of the [current] crime”; as for LaCount, his prior was from 11/12/93, and the current offense was around March or April of 1999. He might qualify as an habitual criminal, but only under the tolling provision of § 939.62(2) (“time which the actor spent in actual confinement serving a criminal sentence shall be excluded”). Why isn’t that tolling precisely the sort of factual question that exists outside the procedural niceties attending the conviction itself; and, therefore, outside the rationale for the prior-conviction exception? The court doesn’t quite say, not convincingly in any event.

¶29       Apprendi requires any fact other than the fact of a conviction which enhances a penalty beyond the prescribed statutory maximum to be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. However, the Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), appears to have relaxed Apprendi’s holding. In Shepard, the Supreme Court held:

[T]o determine whether a [prior] plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense [to be used for sentence enhancement] is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.

Id. at 26. We agree with the State that when read together, Shepard and Apprendi suggest that a court, rather than a jury, may determine the applicability of a prior conviction for sentence enhancement where the applicability of the prior conviction is readily determined on the existing judicial record. Id.

This analysis involves a certain amount of question-begging. All the certified copy of the JOC established was when and for how long LaCount was sentenced. What happened after that is a “known unknown.” Did LaCount obtain sentence commutation or reduction, or some sort of early or emergency release? The odds against any such possibility are quite daunting, to be sure, but that’s not the point: the court document reflects only what happened to point of filing, not afterward; it’s what happened afterward that determined sentencing exposure.

State v. Brian Harold Duchow,  2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12).

Holding:

¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law, [8] to incorporate the “reasonable expectation of privacy test” introduced in Katz v. United States, 389 U.S. 347 (1967). S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2113, 2153, 2178 (“Title III was drafted to . . . conform with Katz . . . .”). [9] Accordingly, nearly all of the federal circuit courts that have considered the definition of “oral communication” in Title III have concluded that it requires the speaker to have a reasonable, as well as a subjective, expectation of privacy. Kee v. City of Rowlett, Texas, 247 F.3d 206, 211 n.8 (5th Cir. 2001) (citing id.); United States v. Longoria, 177 F.3d 1179, 1181 (10th Cir. 1999) (citing same); In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir. 1990) (citing same); United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978) (citing same).

…

¶19 The legislative history of the Electronic Surveillance Control Law expressly states that the legislature intended the Electronic Surveillance Control Law to effect the state “implementation” of Title III. The Electronic Surveillance Control Law and Title III define “oral communication” using nearly identical language, which Congress intended to “reflect” the law as set out in Katz. Katz explained the “reasonable-expectation-of-privacy” standard. We also explained in Smith that the Electronic Surveillance Control Law incorporated the Katz standard of reasonableness into the definition of “oral communication.” Smith, 149 Wis.  2d at 95 n.4. Furthermore, Smith is consistent with six out of seven federal circuit courts that have addressed the meaning of “oral communication” in Title III. Accordingly, we follow the overwhelming abundance of federal case law that interprets “oral communication” to incorporate a reasonable expectation of privacy, and we conclude that, in enacting Wis. Stat. § 968.27(12), the legislature did incorporate a reasonable expectation of privacy into the meaning of “oral communication.

State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240
For Hubbard: Steven W. Zaleski

Issue: Whether, upon jury request for clarification of “materially impaired” under the instructions for injury by intoxicated use of a vehicle, § 940.25(1)(a), the trial court properly responded that the should “give all words not otherwise defined in the jury instructions their ordinary meaning.”

Holding:

¶57      The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Hareng, 90 Wis. 2d at 166 (citations omitted). Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury’s request for a definition of “materially” impaired. “[A] court is not obligated to provide a jury with information solely because the jury believes it is important to its decision.” State v. Lombard, 2004 WI App 52, ¶20, 271 Wis.  2d 529, 678 N.W.2d 338. However, once Judge Wolfgram correctly determined that “materially impaired” was not defined by “the Waalen language,” he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. “If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist.” Fischer, 168 Wis. 2d at 850 (citations omitted).¶58      We hold that the court of appeals erred when it determined that this court’s decision in Waalen gave the statutory term “materially impaired” a “peculiar meaning in the context of criminal charges,” Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. Id., ¶17. Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury’s request for clarification by indicating that the jury should “give all words not otherwise defined in the jury instructions their ordinary meaning.” This succinct answer may not always suffice, but it was correct on the facts presented.

As the Chief Justice points out in concurrence (¶74), Waalen “made clear that the meaning of ‘materially’ for purposes of Wis. Stat. § 939.22(42) is less demanding of the prosecution than the term ‘substantially’ which constitutes the ordinary dictionary meaning of ‘materially.’” The net result, as the Chief then points out, is that the challenged instruction made it harder than necessary for the State to obtain a conviction.

State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163
For both Keyes: Michael J. Devanie

Issue/Holding¹:

¶21 The Keyes were charged with theft by contractor under Wis. Stat. § 779.02(5), part of Wisconsin’s construction lien law. … The statute prohibits the use of the money in the trust fund for any purpose other than paying claims until such time as the claims have been paid in full. In case of deficiency, the claims are to be paid proportionately. Violation of the payment provisions constitutes theft by contractor….…

¶24 Like the court of appeals, we will assume without deciding that Angela was acting as a subcontractor on the project. …

¶25 The uncontroverted evidence in this case is that Angela received payments of $75,241.12 …. Thus, Angela was fully compensated.

¶26 In contrast, Jones testified that there were subcontractors who had claims due ….

…

¶28 The Keyes’ actions therefore conflict with the language of § 779.02(5). Assuming that Angela had a claim to the payments she received, taking full payment when third-party subcontractors remained unpaid violates the proportionality requirement of the statute.

Issue/Holding²:

¶39 Even if it turns out that the money was profit, that alone is neither here nor there. Rather, the issue is whether payment was proportional as required by § 779.02(5).

…

¶46 It is not clear whether the unaccounted for $36,036.28 was merely profit. Further, the court of appeals’ approach fails to explain how to construe “profit,” implies that contractors or subcontractors may not receive profit on a project until the project ends, and is not required under Sobokowiak. We therefore disagree with the court of appeals that § 779.02(5) prohibits prime contractors acting as subcontractors from receiving profit prior to paying other subcontractors for their labor and materials.

The supreme court decision leaves undisturbed the court of appeals’ recitation of the offense elements, as follows, 2007 WI App 163, ¶26, as follows:

[t]he elements of the offense of criminal theft by contractor are: “(1) the defendant acted as a prime contractor; (2) the defendant received money for the improvement of land from the owner or a mortgagee; (3) the defendant intentionally used the money for purposes other than the payment of bona fide claims for labor or materials prior to the payment of such claims; (4) the use was without the owner or mortgagee’s consent, and contrary to the defendant’s authority; (5) the defendant knew the use was without consent and contrary to his authority; and (6) the defendant used the money with the intent to convert it to his own use or the use of another.”

(Quoting, Tri-Tech Corp. of Am. v. Americomp Servs., Inc., 2002 WI 88, ¶26, 254 Wis. 2d 418, 646 N.W.2d 822 (2002).)

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding:

¶33      We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State v. Sykes, 2005 WI 48, ¶15, 279 Wis. 2d 742, 695 N.W.2d 277, we agreed with the United States Supreme Court that “where a ‘formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.’” (Quoting Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). We concluded that a warrantless search “may be incident to a subsequent arrest if the officers have probable cause to arrest before the search.” Id. (internal quotations omitted).

Pickering was the driver; the cop indisputably had PC to arrest him, ¶34.