On Point

City of Kenosha v. Elizabeth R. Tower, 2009AP1957, District 2, 10/6/10  

court of appeals decision (1-judge, not for publication); for Tower: Michael F. Torphy; BiC; Resp.; Reply

Because the police knew Tower was merely stopped temporarily for the purpose of dropping of a passenger – an explicit statutory exception to illegal parking – they didn’t have reasonable suspicion to temporarily seize her for illegal parking:

¶10 The City argues that like the officers in Renz, Anderson had the requisite reasonable suspicion to make an investigatory stop. We disagree. While “illegal parking” may have been Anderson’s suspicion, under the facts of this case that suspicion was not reasonable and thus does not meet the Terry stop requirements. Anderson’s own testimony reveals the unreasonableness of his suspicion: he knew Tower’s vehicle was running, he saw its brake lights on and the reverse lights illuminated, his first instruction to Tower was to “put the vehicle in ‘park,’” and Tower told him she was “dropping off” a friend.[2]

This is on appeal from an order revoking Tower’s driving privileges (because she refused to provide a breath sample). The court of appeals reverses that order but is otherwise not explicit about relief. Clearly, though, the observations that led to the arrest for OWI and consequential request for the breath sample (the usual: odor of alcohol on Tower’s breath, her glassy eyes, etc.) were derived from the initital seizure for illegal parking. Subsequent events were suppressible, as derivative of that primary illegality, in turn making the OWI arrest illegal, and anything related to the breath test suppressible. Again: not explicit, but readily assumed.

State v. Javier Galvin, 2010AP863-CR, District 2, 10/6/10

court of appeals decision (1-judge, not for publication); for Galvin: John S. Schiro, Keith Llanas; BiC; Resp.

Galvan, who had minimal ability to understand English, didn’t understand the implied consent warnings given to him in English. Because the arresting officer knew of Galvan’s limitation, and had indeed obtained the translation services of another officer at the time of arrest, the warnings weren’t provided in a reasonable manner and the test result therefore can’t be justified as a matter of implied consent:

¶15      Similarly, at the time of Galvan’s arrest Poupart had a Spanish-speaking officer with him.  The other officer even spoke some Spanish to Galvan at one point when Galvan did not understand Poupart’s English instructions.  Poupart was thus aware that Galvan’s ability to understand English was minimal.  Given that the Spanish-speaking deputy could have read the implied consent warnings to Galvan in Spanish, Poupart’s decision to read the warnings in English was unreasonable.

¶16      Poupart offered no compelling reason for the failure to have the Spanish-speaking deputy provide the warnings.  If the State had offered a valid reason for why the other officer could not accompany Poupart—such as the other officer was called away to an emergency—we would consider that fact in our determination as to whether Poupart acted reasonably.  See Piddington, 241 Wis. 2d 754, ¶28 (“That a law enforcement officer must use reasonable methods to convey the implied consent warnings does not mean the officer must take extraordinary, or even impracticable measures to convey the implied consent warnings.”).  The only explanation that Poupart gave for not bringing the other deputy with him was that he did not think Galvan was a threat.  The fact that Galvan was not seen as a security threat does not address whether the officer made a reasonable effort to convey the implied consent warnings.

The chemical test nonetheless may be admissible if acquired constitutionally, as incident to lawful arrest; given the parties’ failure to brief this issue, it is something that must be decided on remand, ¶¶17-19, citing State v. Zielke, 137 Wis. 2d 39, 41, 403 N.W.2d 427 (1987); State v. McCrossen, 129 Wis. 2d 277, 297, 385 N.W.2d 161 (1986).

State v. Jason L. Sedahl, 2010AP1097-CR, District 3, 10/5/10

court of appeals decision (1-judge, not for publication); for Sedahl: William A. Schembera; BiC; Resp.

The trial court erred in dismissing a pending charge on the theory that the charge (OWI) resulted from police failure to perform their community caretaker function (preventing him from driving):

¶12      …  No Wisconsin case holds that the doctrine places an affirmative duty on police to intercede and take a person into preventative detention prior to the commission of a crime.  No Wisconsin case authorizes the dismissal of criminal charges based on law enforcement officers’ failure to perform community caretaker functions.  Sedahl has attempted to create a defense where none exists.  There is no legal authority for the trial court’s use of the community caretaker doctrine to dismiss the charges against Sedahl.

court of appeals decision (1-judge, not for publication); for Cortes: Timmothy J. Lennon; BiC; Resp.; Reply

State v. Rolando S. Cortes, 2010AP621-CR, Distric 3, 10/5/10

The officer had reasonable suspicion to perform a traffic stop:

¶7        Conley’s inference that Cortes was trying to elude or evade police was reasonable given the totality of the circumstances.  Cortes pointed at Conley’s cruiser, and, as soon as the light turned green, took off at high speed.  He then made a series of turns, driving at an estimated fifty-five to sixty miles per hour.[2]  “Flight at the sight of police is undeniably suspicious behavior.  …  Although it does not rise to a level of probable cause, flight at the sight of a police officer certainly gives rise to a reasonable suspicion that all is not well.”  State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).  In addition, unusual driving at a late hour is one factor strongly suggesting further investigation is necessary.  See Waldner, 206 Wis. 2d at 53, 57-58 (defendant’s unusual driving, which included stopping briefly at an uncontrolled intersection and turning onto a cross street at a high rate of speed, coupled with his dumping of liquid and ice from a plastic cup, coalesced to form reasonable suspicion).

¶8        Cortes suggests Conley’s uncertainty regarding his speed suggests the traffic stop was based on nothing more than Conley’s “hunch.”  Conley’s inability to determine Cortes’s precise speed might be relevant if Conley lacked cause to suspect Cortes of anything other than a speeding violation.  See City of Milwaukee v. Berry, 44 Wis. 2d 321, 323-25, 171 N.W.2d 305 (1969) (approving a visual speed estimate based on the officer’s position, the length of his observation, the existence of reference points, and the experience of the officer).  As we have established, however, the totality of the circumstances—Cortes’s pointing, rapid acceleration, frequent turns and excessive speed—gave rise to reasonable suspicion that further investigation was warranted.

decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply

Issues (from Table of Pending Cases):

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

The asserted new factor? A counseling report reciting “previously unknown information about her mental health problems, her addictions, and her traumatic upbringing.” The court of appeals was unimpressed: “Since the information in the report does not bear on the circuit court’s primary concern in imposing sentence, it is not ‘highly relevant to the imposition of the original sentence,’ and thus is not a new factor.” What about the IAC claim? To the extent the info wasn’t “new,”  that’s only because trial counsel hadn’t done the spade work to turn it up. But Harbor can’t show prejudice, given that “the central focus of the circuit court’s sentence was the protection of the public.”

Granted that the new-factor test is overly rigid, not to say something of a sham (proof? the reports are littered with decisions rejecting proffered new factors, while you can count successes on a couple of fingers; even then, those successes would probably support an alternative theory of inaccurate information). Maybe the court will loosen the test. You can always hope. Otherwise, you’re left with yet one more fact-specific holding under well-settled law, the only oddity being that this is a defendant’s petition. The IAC claim might hold interest in its own right. From the briefs, it appears the trial judge denied the claim after concluding that, having now reviewed the previously undisclosed information, he would have given the same sentence. Isn’t that the essence of an outcome-determinative result? And doesn’t IAC-prejudice require something different, an objective assessment of the reasonable probability of a different result? We’ll see.

decision below: unpublished; prior On Point post; for Burris: Byron C. Lichstein

Issue (from Table of Pending Cases):

Was the trial court’s supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996).

Reckless injury trial, Burris’ testified the gun went off when the victim grabbed it, so that guilt turned on the utter-disregard element. Standard instructions were given, but during deliberations the jury asked whether “facts and circumstances after the shooting” were relevant to this element. Over objection, the trial judge gave this supplemental instruction:

And in response to this question, if this clarifies anything, after-the-fact regard for human life does not negate utter disregard otherwise established by the circumstances before and during the crime.  It may be considered by the fact-finder as a part of the total factual picture, but it does not operate to preclude a finding of utter disregard for human life.  The element of utter disregard for human life is measured objectively on the basis of what a reasonable person in the defendant’s position would have known.

On appeal, everyone agreed that post-act conduct is relevant to whether the act was performed in utter disregard for human life. However, while the principle is beyond debate, its delivery by the judge misled the jury. In other words, the rhetoric (does not negate; does not preclude) tended to direct the jury to not consider after-the-fact conduct.

Settled law? Highly fact-specific issue? Sure, but don’t forget, it’s a State’s petition.

decision below: unpublished; prior On Point post; for Rhodes: John J. Grau

Issue (from Table of Pending Cases):

Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.

Homicide case, tried on State’s theory Rhodes had motive to kill victim for beating Rhodes’ sister; court of appeals reversed because trial judge cut off cross-examination that Rhodes did not react violently in response to prior harm inflicted by victim on sister. This limitation denied fair trial, because it deprived jury of “a full picture of the dynamics that roiled the relationships in this case.” Well, you will undoubtedly say: Right or wrong, this sounds awfully fact-specific, and application of settled law to discrete facts is left to the court of appeals! But then, you simply forget that this is a State’s petition, and therefore necessarily satisfies Rule 809.62.