On Point

State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08
For Tecza: Timothy P. Swatek

Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61.

Holding:

¶18      … We read Phillips as inquiring into whether the premises were available for use to the public or “to a defined limited portion of the citizenry.”Richling, 178 Wis. 2d at 859-60. With this focus on the public, we wrote:

   We believe the appropriate test is whether, on any given day, potentially any resident of the community with a driver’s license and access to a motor vehicle could use the parking lot in an authorized manner.

Id. at 860. Using this test, we distinguished Richling from Phillips by pointing out that in the latter, American Motor employees were a “defined, limited portion of the citizenry.” Id. at 860-61.¶19      Considering the facts of this case in light of the Richling test, we conclude that the roadways of the Community were held out for use of the public as a whole. The undisputed evidence establishes that any person with a driver’s license and access to a motor vehicle was permitted to use the Community’s roads; on a daily basis postal employees, cable television employees, contractors, food service employees, repairpersons, and newspaper delivery persons were granted access to the Community. In addition, members of the general public were given access to the Community’s roadways to show and view houses for sale, watch fireworks, play golf, attend weddings, and to just look around.

…

¶22      We affirm. The roadways of the Geneva National Community were “held out to the public for use of their motor vehicles” because on any given day any licensed driver could enter the Community unchallenged; therefore, the drunken driving law of the State applies as provided in Wis. Stat. § 346.61.

State v. Shane P. Kashney, 2008 WI App 164
For Kashney: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment).

¶1        In State v. Saunders, 2002 WI 107, ¶¶67-69, 255 Wis. 2d 589, 649 N.W.2d 263, the supreme court stated that evidence of repeater status may not be submitted until “post-trial.”  Here, the evidence was submitted after the jury returned the guilty verdicts and had left the courtroom, but before the court had rendered judgment on the verdicts and concluded the trial.  We rejected a no-merit appeal to clarify what the term “post-trial” means, in our view.  Now, after full briefing on the subject, we are satisfied that the State may submit repeater evidence at any time following the jury verdict up until the actual sentencing.  We therefore affirm because the State met its burden regarding repeater evidence.

…

¶12      Based on our supreme court’s comments and our due process concern, we glean that post-trial means as early as “immediately after [the] verdict” and as late as “any time before actual sentencing.”  Saunders, 255 Wis. 2d 589, ¶¶48, 43 n.19.  This way, the evidence will not prejudice the decision maker, and the defendant can still challenge the evidence prior to sentencing.  Our confidence in this interpretation is bolstered by the fact that, in Saunders, the State submitted the repeater evidence “[i]mmediately after the jury had been dismissed,” which is very similar to the factual situation here.  See id., ¶59.  Moreover, the supreme court stated in Saunders that the trial court queried whether the parties disputed the existence of the judgment of conviction in the file at the close of trial.  Id., ¶60.   To interpret post-trial in a more restrictive way, as Kashney argues, would hold form over substance.  We decline to accept his argument.

¶13      In this case, the State submitted certified judgments both at the preliminary hearing and after the jury verdict.  We conclude that the evidence submitted after the jury verdict is post-trial and can be used to prove Kashney’s repeater status.

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger

Issue/Holding:

¶2        The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. ^[3] We conclude that whenever probable cause exists to justify detention of a suspect, regardless of whether it exists on the offense under investigation, a showup identification is not necessary within the meaning of Dubose.¶3        Because it is undisputed that officers, while lacking probable cause to arrest Nawrocki on the offense under investigation, had probable cause to arrest him on another offense, we conclude the showup was not necessary and was thus inadmissible underDubose. We therefore reverse the circuit court’s order denying Nawrocki’s motion to suppress evidence of the showup identifications. However, we remand for the circuit court to determine whether the victim’s in-court identification was based on an untainted, independent source, and for further proceedings that may be necessary consistent with this opinion.

All the rest is commentary. The parties agreed that the police had probable cause to arrest Nawrocki for various possible offenses but not the offense for which they obtained a show-up ID, ¶23. Dubose,2005 WI 126, ¶33, says there must be some necessity for use of the show-up procedure (such as that “the police lacked probable cause to make an arrest”) and the question therefore becomes whether they need probable cause for this offense, or whether any old offense will do. The court of appeals says it’s the latter:

¶26      We observe that the absence of probable cause makes a showup procedure necessary because officers lack a legal basis to detain the person and thus cannot acquire identification evidence by another, less suggestive procedure, such as a lineup or photo array. Id. Stated differently, a showup is necessary when officers lack other constitutional means to obtain a suspect’s identification. However, where probable cause exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. We therefore conclude that a showup is unnecessary and thus inadmissible under Dubose when probable cause exists to justify an arrest, regardless whether it exists on the particular offense under investigation.^[8]¶27      The State’s narrow interpretation of the necessity test runs counter to the purposes of Dubose. The supreme court in Dubose established a rigorous test for the admissibility of showup identification evidence grounded in the due process guarantees of Article 1, Section 8 of the Wisconsin Constitution and the principles enunciated by the Supreme Court in Stovall. The Dubose court adopted this standard in light of evidence that misidentification had led to an epidemic of wrongful convictions, and that the showup procedure was particularly suggestive and thus conducive to misidentification. A rule permitting admission of inherently suggestive showup identification evidence in situations in which officers have a legal basis to detain a suspect (but lack a legal basis related to the offense under investigation) would likely result in a higher incidence of misidentification and wrongful convictions in Wisconsin, the serious ills Dubose sought to remedy.

¶28      Applying the necessity test as we have construed it here, we conclude the circuit court erroneously admitted evidence of Gerhardt’s and Albert’s showup identifications of Nawrocki. It is undisputed that the officers had probable cause to detain and arrest Nawrocki for other potential criminal violations and thus could have employed an identification procedure less prone to misidentification. Therefore, the showup procedure was unnecessary in this case, and the circuit court thus erred in admitting testimony about the showup identifications at trial.

The underlying idea, that probable cause is not offense-specific, is certainly well-grounded in search-and-seizure caselaw. State v. Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277 (“as long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed”) – which reinforces a point made elsewhere on this pagethat showups are now tested by fourth amendment principles.

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger

Issue/Holding:

¶29      Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source.” Dubose, 285 Wis. 2d 143, ¶38 (citation omitted).¶30      The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether “the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Roberson, 292 Wis. 2d 280, ¶34 (quoting State v. Walker, 154 Wis. 2d 158, 186, 453 N.W.2d 127 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))). To be admissible, “the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect.” Roberson, 292 Wis. 2d 280, ¶34 (citations omitted). The party seeking admission of the in-court identification carries the burden of demonstrating by clear and convincing evidence that the in-court identification was not tainted by the inadmissible out-of-court identification. See id., ¶35 (citation omitted).

The court proceeds to conclude that fact-finding is required, necessitating remand:

¶38      While Gerhardt’s testimony raises questions about whether his in-court identification actually rests on his recollection of his initial encounter with the assailant, we cannot decide this issue on the record before us. The critical question not fully answered in the record is whether, during the robbery, Gerhardt got a good enough look at the assailant to identify the person as Nawrocki. We therefore remand for the circuit court to hold an evidentiary hearing for the purpose of determining whether the in-court identification was based on an independent source untainted by the impermissible showup identification. When making its determination, the circuit court should take into account the following seven factors adopted from United States v. Wade, 388 U.S. 218, 241 (1967):

(1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused’s actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed concerning the conduct of the lineup.

State v. McMorris, 213 Wis. 2d 156, 168, 570 N.W.2d 384 (1997) (citing Wade, 388 U.S. at 241).

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire into the necessity for the device,” ¶32. “The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision,” ¶34.

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue/Holding:

¶5        The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample. Wis. Stat. § 973.046(1r). When the felony does not involve a sex crime under one of those statutes, however, the trial court may order the defendant to pay the $250 DNA surcharge. Sec. 973.046(1g). Thus, in the latter situation, the trial court has the discretion to decide whether or not to impose the DNA surcharge.

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment.

Holding:

¶9        We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Such is the exercise of discretion contemplated both by the statute and our supreme court’s pronouncement in State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197 (The exercise of discretion contemplates a process of reasoning: “‘This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standard.’”) (citation omitted).

¶10      Thus, in exercising discretion, the trial court must do something more than stating it is imposing the DNA surcharge simply because it can. We also do not find the trial court’s explanation that the surcharge was imposed to support the DNA database costs sufficient to conclude that the trial court properly exercised its discretion. To reach such a conclusion would eliminate the discretionary function of the statute as a DNA surcharge could be imposed in every single felony case using such reasoning. We are not going to attempt to provide a definite list of factors for the trial courts to consider in assessing whether to impose the DNA surcharge. We do not want to limit the factors to be considered, nor could we possibly contemplate all the relevant factors for every possible case. In an effort to provide some guidance to the trial courts, however, we conclude that some factors to be considered could include: (1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent.

The court of appeals has long held that a sentencing court erroneously exercises discretion when it treats as mandatory a disposition that in fact is discretionary. E.g., State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981) (sentence overturned where court stated it would never grant probation on drug offense). Cherry fits precisely within that paradigm, at least as a pragmatic matter, in that the sentencing court also treated as mandatory something that is discretionary. The court of appeals, then, could have simply cited Martin and then gone on to other business. But it didn’t, relying instead on Gallion, which makes the impact broader. In brief, the court seems more than willing to apply Gallion to aspects of sentence other than imprisonment—not just this costs case but also, and recently, fines, State v. Ahern Ramel, 2007 WI App 271, ¶14 (“under Gallion some explanation of why the court imposes a fine is required”). The factors will differ depending on the context, of course, but that there must be some articulation of relevant factors may not be doubted.