On Point

publication orders, 7/28/10

On Point posts from this list:

2010 WI App 93 State v. Timothy Charles Bauer

State v. Eric Michael Webley, No. 2010AP747-CR, District 4, 7/29/10

court of appeals decision (1-judge, not for publication); for Webley: Steven Cohen; BiC; Resp.

The police had reasonable suspicion believe Webley was driving with a blood alcohol level exceeding 0.02, and thus to perform field sobriety tests, after an indisputably proper stop for speeding, given the following (in addition to which, Webley admitted having had two beers):

¶8 …  (1) Dolin observed an open 30-pack of beer beside Webley on the seat of the car; (2) Dolin smelled alcohol coming from the vehicle; (3) when Dolin asked for his license, Webley initially offered his credit card; (4) when Dolin ran Webley’s driving record he discovered that Webley’s driving privileges were presently revoked and that Webley had a number of prior convictions for OWI, sufficient to lower the blood alcohol level for OWI from 0.08 to 0.02; and (5) although Dolin told Webley not to smoke, he did so anyway.

State v. Kevin A. Rhyne, No. 2009AP163, District 4, 7/29/10

court of appeals decision (1-judge, not for publication); pro se; Resp. Br.

¶7        “An officer may conduct a traffic stop when he or she has probable cause to believe a traffic violation has occurred.” State v. Popke, 2009 WI 37, ¶13, 317 Wis. 2d 118, 765 N.W.2d 569 (citing State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696 (Ct. App. 1996)). Here, Rhyne did not contest the officer’s assertion at trial that he drove straight through the marked left turn only lane. Rhyne even states in his brief that he “attempted to go straight from the left lane.” Rhyne’s driving was in violation of Wis. Stat. § 346.31(1), which provides that, where markers or signs direct traffic at an intersection to follow a particular course, “the operator of a vehicle turning at such intersection shall comply with such directions.” Accordingly, we conclude that the stop was valid, and thus reject Rhyne’s suggestion that the evidence used to prove the OWI probable cause element of the refusal charge should have been suppressed.[3]

This was a refusal prosecution, § 343.305(9), one element of which is probable cause to believe the person was operating under the influence, ¶4. The court notes that is a novel question “whether evidence gathered pursuant to an illegal stop may be used to prove the OWI probable cause element”; but the stop was proper so the question needn’t be reached, ¶6.

Dane Co. DHS v. Laura E.N., No. 2010AP1172, District 4, 7/29/10

court of appeals decision (1-judge, not for publication); for Laura E.N.: Jean K. Capriotti

TPR – Evidence

Evidence that the mother was caring for an infant son not under CHIPS order wasn’t relevant to her ability to meet conditions for the return of her older daughters who were the subjects of the TPR proceeding, ¶¶13-16.

TPR – Hearsay

Social workers’ testimony based on reports of the children acting out sexually was admissible because sufficiently corroborated by other evidence to be trustworthy, and in any event was admissible under § 907.03 as data on which experts may rely, ¶¶21-27; was relevant to show that the mother wasn’t adequately caring for the children, ¶¶28-29; and even if erroneously admitted, was harmless, ¶¶30-32.

TPR – Effective Assistance

Counsel didn’t perform deficiently in failing to secure a more recent psychological evaluation for the mother and each child, the court stressing the absence of any “evidentiary basis for finding that a reasonable attorney should have known that second psychological evaluations would have had any better results for either Laura or her children,” ¶¶37-38.

court of appeals decision (3-judge, not recommended for publication); for Voeller: Steven G. Richards; BiC; Resp.; Reply

Counsel – Sanction – Appendix

¶9 n. 3:

Contrary to the State’s certification, the appendix does not include the trial court’s findings or opinion. The transcript of the oral findings and opinion should have been included in the appendix. Wisconsin Stat. Rule 809.83(2) provides that failure to follow the rules of appellate procedure is grounds to impose a penalty on counsel or take any other action the court considers appropriate. Therefore, a $150 sanction is imposed against the State for filing a false appendix certification. See State v. Bons, 2007 WI App 124, ¶¶20-25, 301 Wis. 2d 227, 731 N.W.2d 367. The State shall pay the $150 sanction within fourteen days of this opinion.

This isn’t an isolated example of the principle that the court takes the appendix certification requirement seriously, very seriously. You should too. $150 worth of serious, if you want to quantify just how serious. More than that, if you want to consider the unquantifiable loss of credibility with the court for signing a demonstrably false statement. But this particular sanction holds some separate if minor interest because it runs against “the State,” not the offending counsel. Authority does exist for the idea that because it is formally designated a party to the litigation, “the State” is subject to assessment for jury costs under § 814.51, Flottmeyer and Monroe Co. D.A.’s Office v. Circuit Court for Monroe Co., 2007 WI App 36, ¶14. But isn’t that something else? The State didn’t sign the appendix certification, an individual attorney did. Well, this is someone else’s problem, so we will leave it at that.

Other Crimes Evidence – Context

Evidence of Voeller’s prior alleged sexual assaults of the stalking complainant’s daughters (allegations he was previously tried for and acquitted of) was potentially probative of the “context” of the stalking charge. The trial court ruling excluding this evidence wasn’t, the court of appeals holds, based on properly reasoned analysis and is reversed.

¶16      … The State argued that Voeller’s past contacts with Warriner in the context of the sexual assault trial are probative as to Warriner’s fear of Voeller—an essential element of the stalking charge.

¶17      … The court’s conclusion that the other acts must be similar to the crime charged demonstrates a misunderstanding of the law as it applies to other acts evidence offered to demonstrate context and an essential element of the crime.

¶18      As discussed below, the court also rejected admission of the evidence based on its determination that the sexual assault allegations were not credible. However, as it relates to stalking, the State sought to introduce the other acts evidence to provide the history, or context, of Voeller’s relationship with Warriner and her children. The State sought to introduce the fact that Warriner’s three daughters had accused Voeller of sexually assaulting them in 2007 and, whether true or false, this could cause Warriner to reasonably fear bodily harm to herself or her daughters when Voeller began harassing her in August 2008. See State v. Hunt, 2003 WI 81, ¶59, 263 Wis. 2d 1, 666 N.W.2d 771 (other acts evidence relevant and admissible to prove victim’s state of mind). It was the State’s contention that these sexual assault allegations made in 2007 formed the launching pad for Voeller’s increasingly harassing behavior toward Warriner—entering Warriner’s laundry room through a window without her consent and repeated phone calls—which culminated in his alleged break-ins at the downstairs apartment of her residence in September 2008 and February 2009.

¶19      As in Payano, the evidence was offered to provide a complete explanation of the circumstances surrounding Voeller’s otherwise inexplicable behavior.  Unlike other acts evidence offered to prove intent, the evidence need not be similar to the crime charged because it provided the context for the charged crime. …

A false claim would explain Warriner’s fear of Voeller? Maybe the idea is that Voeller would be motivated to harass Warriner because of prior false claims against him. Contrast, State v. Miguel E. Marinez, Jr., No. 2009AP567-CR, which held that a prior act of misconduct had no explanatory benefit for the current charge. Note further, the grant of review in that case, and thus the potential for a very expansive view of “context” as a basis for misconduct evidence admissibility.

Other holdings of potential interest:

• The prior acquittal doesn’t preclude admissibility, ¶25, citing State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36 (Ct. App. 1995). This is certainly a non-controversial result; failure to prove a crime beyond reasonable doubt of course doesn’t mean a subsequent fact-finder can’t determine its existence by a lesser standard. Tangent: double jeopardy prevents the prior acquittal from being used as an element of a subsequent charge, Feela v. Israel, 727 F. 2d 151 (7th Cir. 1984); but that is something else.
• Evidence that Voeller viewed child pornography at the local library is relevant to his “continued interest in minor girls and to prove motive for” burglaries with which he is also charged, ¶28, citing State v. Normington, 2008 WI App 8.
• Rather than engage its own, independent review and deem the evidence at issue admissible, the court of appeals determines that the proper course is remand for more refined consideration by the trial court, ¶31.

certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; Resp.; Reply

Consent to Search – Georgia v. Randolph

The court of appeals certifies to the supreme court the following question:

Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement officers but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene?

St. Martin lived with Latoya, who made a domestic abuse complaint against him. The cops came to the apartment, and forcibly took him outside. Latoya then said she thought St. Martin dealt drugs out of the apartment. Though St. Martin, who remained just outside the apartment in a police van, refused to give consent to search, Latoya was more compliant. You can guess the rest (there are certainly factual wrinkles that might make the case interesting, but they’re not necessarily relevant to the certified question).

Someone with shared authority over the premises (Latoya) may consent to its search, with the proviso established by Randolph that refusal to consent from a “physically present resident” trumps another resident’s consent. But an “absent party’s” refusal to consent has no effect, and Randolph itself anticipated that: “the potential objector, nearby but not invited to take part in the threshold colloquy, loses out,” 547 U.S. at 121. Was St. Martin “physically present”? Or merely “nearby”? Not only was he close enough that the police sought consent from him first, but the only reason he wasn’t inside his residence is because the police forcibly removed him. As the certification notes, Randolph has been “construed very narrowly.” However, the facts in this case may test the limits of that assumption. Back to the certification:

The interpretation of Randolph in this context implicates the constitutional right to be free from unreasonable search and seizure. This right is eroded when law enforcement can manipulate a situation in a way that invalidates a resident’s refusal to consent to a search. Likewise, the state’s ability to investigate and prosecute criminal activity is restrained when police officers are provided insufficient guidance regarding the proper execution of their duties. Because Randolph has not been interpreted or applied in the context of a resident who is removed from his residence but remains nearby and refuses consent when asked, law enforcement officers and the bench and bar would benefit from guidance on the issue. We respectfully certify the question to the Wisconsin Supreme Court.

State v. Walter Allison, Jr., 2010 WI App 103; for Allison: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Summary judgment in favor of discharge isn’t an available option under § 980.09.

¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those outlined in Wis. Stat. chs. 801 to 847, and that summary judgment is not available in discharge proceedings. Section 980.09(2) gives a trial court two options when confronted with a petition for discharge. Subsection (2) first states that the trial court “shall” deny the petition “[i]f the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment.” Sec. 980.09(2). If the trial court determines that facts do exist from which a court or jury could find that the petitioner no longer meets the criteria for commitment, “the court shall set the matter for hearing.” Id. By stating that the court “shall” set the matter for a hearing, the legislature has precluded a court from exercising any other options that might otherwise be available, including summary judgment. The unambiguous and clear understanding of § 980.09(2) is that a trial court is limited to these two options when faced with a petition for discharge. See Arends II, 2010 WI 46, ¶43 (“If any facts support a finding in favor of the petitioner, the court must order a discharge hearing on the petition; if no such facts exist, the court must deny the petition.”).

Further detailing by court of discharge procedure follows, more or less a variation on the theme captured by the blockquote. Discharge simply isn’t permitted absent a § 980.09(3) hearing, therefore summary judgment-based discharge simply isn’t supported by the statutory scheme. A court may denyor granthearing on the person’s petition, and that’s it. “We hold that the language of § 980.09(2) explicitly prescribes the only two procedures a trial court can exercise when confronted with a petition for discharge,” ¶23.

After filing a discharge petition, Allison was examined by two experts, one hired by the state, the other court-appointed. Both agreed that Allison no longer meets the criteria for commitment. If the State has any contrary evidence, it’s a well-guarded secret. Given this apparent absence of controversy as to need for continuing commitment, the trial court granted summary judgment in favor of discharge. As just seen, this grant is now reversed. But: the State bears the burden of proof, by clear and convincing evidence, that the person in fact meets the criteria for commitment, § 980.09(3), so what is the point of a hearing? This is in effect a harmless error question:

¶30 We will not speculate as to the possible strength or weakness of the State’s case.  Wisconsin Stat. § 980.09(3) exists for the sole purpose of requiring the State to present its case in opposition to a petition for discharge. Not allowing the State the opportunity to cross-examine Allison’s witnesses and present its case is not harmless error. There is more than a reasonable possibility that the court’s failure to allow the State an opportunity to cross-examine Allison’s witnesses and present its case contributed to its decision to grant Allison’s motion for summary judgment. See Beauchaine, 297 Wis. 2d 70, ¶152. This error has undermined our confidence in the outcome of the case. See Tykila S., 246 Wis. 2d 1, ¶28. Because the State was denied an opportunity to cross-examine Allison’s witnesses and present its case in opposition of Allison’s petition for discharge, we hold that the trial court’s grant of Allison’s motion for summary judgment was not harmless error.