court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.
Conditional Jail Time
“Applying the plain language of § 973.09(4)(a), it is clear that straight confinement time may be imposed as a condition of probation, and that although the trial court ‘may grant’ work-release privileges, it is not required to do so.” It follows that such privileges may be revoked, for cause).
court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.
Ineffective Assistance
Machner hearing not required because record “conclusively demonstrates” no deficient performance; nor can prejudice be shown from asserted deficiency.
court of appeals decision (1-judge; not for publication)
Traffic Stops
No seizure, given that police neither “prompted” Hennessey to park car not blocked him in; therefore reasonable suspicion not necessary to approach car.
decision below: 2009 WI App 143; for Conner: Steven J. House
Issues:
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?
Whether a defendant received adequate notice of the nature and cause of the criminal accusations in an information (See State v. Cheers, 102 Wis. 2d 367, 403 – 04, 306 N.W.2d 676 (1981) and State v. Copening, 103 Wis. 2d 564, 576, 309 N.W.2d 850 (1981)).
“Stalking” requires a “course of conduct,” which is defined as “a series of 2 or more acts carried out over time,” § 940.32(1); and becomes a Class H felony if “the present violation” occurs within 7 years of a previous conviction involving the same victim, § 940.32(2m). The question, then, is whether the course of conduct must all come within this 7-year restriction, or whether 1 act within that window is enough. The court of appeals held that this 7-year time restriction requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, without temporal restriction on the other acts establishing the underlying course of conduct element. As for the other issue, notice of the charge, the question appears to be whether it’s enough for the charging document merely to recite the elements of the offense, or whether it must specifically allege the acts establishing the “course of conduct.”
decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
§ 939.66(2) says that one “less serious type of criminal homicide” is a lesser included of a more serious homicide. Can, therefore, Patterson be convicted of delinquency resulting in death and reckless homicide (same act, same victim, of course)? The court of appeals thought so, reasoning that the logic of State v. Jimmie Davison, 2003 WI 89 (“§ 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged”) transfers to subsec. (2).
decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee
Issues:
Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation
Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial
Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (the Sixth Amendment prohibits the police from questioning a person represented by an attorney on criminal charges without the attorney present).
What impact does Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) have upon the facts of this case and State v. Dagnall?
Fall-out from Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009), which altered the post-charge interrogation landscape. You can find further discussion here (scroll down to “Forbush”). Significance of this case for SPD practice should be self-evident.
Village of West Salem v. Low, 2009AP2654, Dist IV, 3/25/2010
court of appeal decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.
Challenge to OWI-1st in municipal court fails for want of jurisdiction, where judgment had been entered in circuit court because at the time no local municipal court existed.
An obscure problem, to be sure, but possibly of enough interest to be disseminated. Municipal courts have exclusive jurisdiction over municipal ordinance violations, subject to a few enumerated exceptions, § 755.045(1). But, where a municipal court hasn’t been established, jurisdiction over ordinance violations vests in circuit courts—or so the parties and the court of appeals seem to assume (see ¶5, suggesting that circuit court jurisdiction attached “under Chapter 778”; failure to cite a specific statute isn’t entirely helpful, but we’ll assume that everyone got this right, reserving the possibility that they’re mistaken). Sometime after judgment was entered against Low, a local municipal court was established, and that is where he raised his collateral attack, relying on the exclusive jurisdiction proviso of § 755.045(1). The court rejects the attempt, reasoning that “there is nothing in § 755.045(1) that suggests the legislature intended to divest the circuit court of jurisdiction over the actions properly filed in that court before the new municipal court was established,” ¶8. The larger lesson though, and the one to take away from the case is this: “It is well established that one court does not have the authority to re-open and set aside the judgment of another court. See, e.g., Salter v. Cook, 131 Wis. 20, 23, 110 N.W. 823 (1907); Coon v. Seymour, 71 Wis. 340, 346, 37 N.W. 243 (1888),” ¶8. Totally separate point: It bears remembering that you can collaterally attack the alleged enhancer within the ongoing prosecution, if but only if you can claim denial of counsel in the prior case, State v. Joseph J. Hammill, 2006 WI App 128, ¶¶15-17. And, because there is no right to counsel in an OWI-1st, you simply can’t launch such an attack, id. So Low did the only thing he could do, launch an independent collateral attack. It was reasonable for him to assume that the “exclusive jurisdiction” provision applied, but now he knows differently. And so do you.
court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.
Miranda – Traffic Stop – Marijuana Odor and Probable Cause
Suppression of passenger’s statement due to custodial interrogation without Miranda warnings leaves police without probable cause to arrest driver:
¶7 First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed. The passenger was handcuffed, told he was under arrest for a warrant, and placed in the backseat of a squad car before the deputy point-blank asked “[W]here is the odor of burnt marijuana coming from?” The question can only be construed to be one of gathering further evidence in support of a crime that the officer believed had occurred—and not an investigation of whether a crime has occurred. A statement made during a custodial interrogation, such as in this case, cannot be considered voluntary and admissible until Miranda warnings have necessarily been waived.3 See Miranda v. Arizona, 384 U.S. 436, 476 (1966). Kohel was not given an opportunity to waive his Miranda rights because the deputy never Mirandized him. See id. So we agree with the trial court that the passenger’s statement cannot be considered “voluntary” and is not admissible.
The court goes on to say, ¶8: a) odor of marijuana in a car provides probable cause to arrest if linked to a specific person; b) linkage to the specific person at hand—Graske—turns on Kohle’s statement described above; c) but, because that statement was suppressible, no such linkage exists and therefore “the odor was insufficient to establish probable cause for his arrest.
Arrest – Probable Cause, Search of Backpack in Car, Indicia of Constructive Possession
Probable cause to arrest Graske not supported by his connection to backpack found containing contraband, found in car:
¶12 The trial court found, and we agree, that there was not enough evidence connecting Graske to the backpack to support a finding of possession. The trial court properly considered Graske’s checkbook in the backpack as a factor to determine possession of the backpack. But the backpack was on the floorboard of the front passenger’s seat in a vehicle that was not owned by Graske. And even though a person can constructively possess an object when it is in near proximity when there is no actual dominion and control, the trial court was obviously convinced that Graske did not. The court concluded that it would have been difficult for the backpack to be “immediately accessible” to Graske from where he was sitting since the backpack was sitting next to or underneath Kohel. Just the fact that Graske was in the same vehicle where the backpack was found does not by itself mean that he had dominion and control over the backpack. Whether an investigatory stop meets the constitutional and statutory standards is a question of law that we review de novo. State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991). When we review the factors that led to determinations of constructive possession in other Wisconsin cases, the universality of which is neatly compartmentalized in the Texas case cited in the footnote, Willis v. State, 192 S.W.3d 585, 593 (Tex. App. Ct. 2006), most of the factors that would be indicia of ownership are simply not present in our case. Under the specific facts of this case, there just was not enough.
A really interesting case. You’d think the question of linkage of a particular person to contraband would come up fairly frequently but it doesn’t, at least not terribly much in Wisconsin caselaw. The leading case, which delas with sufficiency of evidence not probable cause, remains State v. R.B., 108 Wis.2d 494, 497-98, 322 N.W.2d 502 (Ct. App. 1982) (“Unless actual control exists, there must be found from the surrounding facts and circumstances, aided by reasonable inferences, an intent to exercise control over the prohibited item. Without such a finding, there can be no constructive possession.”), which found that a juvenile’s mere presence to alcohol didn’t prove his possession of same. R.B. wasn’t cited here by the court or the parties but may have salience nonetheless on the problem. And even if it doesn’t, the conclusion of no probable cause surely would be support an insufficient-evidence claim on facts similar to Graske. Take a look as well at ¶11 n. 4, which lists a number of “nonexclusive factors to determine if there is a sufficient link between a defendant and contraband.”
