On Point

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen

Issue/Holding:

¶18      Historically, we generally have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. Arias, 311 Wis.  2d 358, ¶20. We have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Fourth Amendment provided even before the Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961), applied the Fourth Amendment’s guarantees to the states under the Fourteenth Amendment. ^[6] Arias, 311 Wis.  2d 358, ¶20. On only one occasion, in our development of Article I, Section 11 jurisprudence have we required a showing different from that required by the Supreme Court’s Fourth Amendment jurisprudence. We did so in regard to our development of a good faith exception under Article I, Section 11. State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (creating two additional requirements under Article I, Section 11 for law enforcement before according a good faith exception to their reliance on a defective no-knock search warrant). Eason has no application here. Pursuant to our usual practice, we shall interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent in regard to community caretaker analyses.

State v. Ronald D. Luttrell, 2008 WI App 93
For Luttrell: Steven Prifogle, SPD, Milwaukee Trial

Issue: Whether a ch. 980 SVP respondent is entitled to § 971.14 competency evaluation.

Holding:

¶8        It is true, of course, that both Wis. Stat. § 971.13 and Wis. Stat. § 971.14 once applied to Wis. Stat. ch. 980 commitments, see Smith, 229 Wis. 2d at 726, 600 N.W.2d at 261, but that was because a specific statute, Wis. Stat. § 980.05(1m) (2003–04), required it, see Smith, 229 Wis. 2d at 726­–727, 731–732, 600 N.W.2d at 261, 263–264. … Section 980.05(1m) (2003–04), however, was repealed effective August 1, 2006 . ……

¶10      Luttrell’s contention that he is entitled to a competency hearing under Wis. Stat. § 971.14 also ignores the special indicium of a civil commitment, which, per force, cannot depend on whether that person is competent. Thus, significant mental impairment is a condition to commitment under Wis. Stat. ch. 51, Wisconsin’s civil mental-commitment chapter, see Wis. Stat. § 51.20(1)(a), as it is under Wis. Stat. ch. 55, Wisconsin’s protective-placement-system chapter for persons who are unable to properly care for themselves, see Wis. Stat. § 55.001. ^[5] Accordingly, competency is not a prerequisite to either civil mental-commitment or civil protective-placement proceedings. … The same principle applies to Wis. Stat. ch. 980.

The court also dispatches the argument that, by failing to overturn Smith explicitly, the legislature evinced intent to keep that holding on the books, ¶8 n. 3:

… As we have seen in the main body of this opinion, Smith relied on § 980.05(1m) (2003–04) in holding that persons subject to ch. 980 proceedings are entitled to a competency hearing under Wis. Stat. § 971.14. By repealing § 980.05(1m) (2003–04), the legislature overturned case law that used § 980.05(1m) (2003–04) to give to persons subject to ch. 980 proceedings certain rights enjoyed by defendants in criminal cases even though those rights are not otherwise granted by ch. 980. Simply put, Smith’s determination that § 980.05(1m) (2003–04) engrafted § 971.14 onto ch. 980 is not applicable here because § 980.05(1m) (2003–04) is no longer on the books.

One other thing, neither here nor there. It’s generally not a good sign when, even though the issue is purely one of law and therefore an abstraction, the court starts out its overview with a recitation of the horrible albeit irrelevant details of the crime, ¶2.

State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz

Issue/Holding:

¶8        A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis.  2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion. Id.

To obtain postconviction discovery of privileged material (here: victim’s medical and toxicology records), the defendant must first convince the court to inspect the material in-camera by showing a reasonable likelihood it is relevant, non-cumulative information necessary to guilt or innocence, ¶¶9-10, citing State v. Frederick Robertson, 2003 WI App 84 and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as clarified by State v. Johnny L. Green, 2002 WI 68. Klietzen, convicted of injury by intoxicated used of motor vehicle, made an insufficient showing for postconviction discovery of the victim’s (privileged) toxicology information in an effort to show he might have been partially responsible for the accident, ¶¶11-14 (no evidence alcohol was found in the victim’s vehicle or that the victim might have been impaired or that a toxicology report on the victim was even prepared). Therefore, he isn’t entitled to in-camera inspection, the first step for release of privileged material. Nor is he entitled to an evidentiary hearing on the possibility that testing evidence in the state’s possession could lead to exculpatory information, ¶¶17-21. (“Here, Kletzien seeks an evidentiary hearing not to determine whether the evidence he seeks is relevant, but rather, to determine whether any of the testing could possibly lead to exculpatory evidence or lead to a reasonable probability that the outcome of the proceedings would be different,” ¶19.)

Portage Daily Register v. Columbia Co. Sh. Dept., 2008 WI App 30

Issue/Holding:

¶8        We will generally not consider issues that are moot on appeal. See Hernandez v. Allen, 2005 WI App 247, ¶10, 288 Wis. 2d 111, 707 N.W.2d 557. However, the present appeal is not moot because our ruling will have the practical effect of determining the Register’s right to recover damages and fees under Wis. Stat. § 19.37(2)(a) ^[4] based upon the Sheriff’s Department’s denial of its request. Moreover, we make exceptions to the general rule in cases where the issue is of great public importance; the identical issue arises frequently and a decision is needed to guide trial courts; the issue will likely arise again and should be resolved; the issue is likely of repetition yet evades review; or it involves a statute’s constitutionality. See State v. Leitner, 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341. We view the issue in the present case as sufficiently important and capable of evading review that it warrants revieweven if it were moot. Thus we proceed to the merits of the parties’ arguments.

State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31

For Schultz: Stephen L. Morgan, Jennifer M. Krueger

Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:

¶10      Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element); ^[3] and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns….  Political activity includes any of the following:  Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties). ^[4]  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes.¶11      … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).

…

¶20      We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes.  The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another.  Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact).  This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes.  Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.

The prior appeal established that directing staff to engage in a political campaign with state resources violated the statute, but the court now says that this principle merely meant that the statute wasn’t unconstitutionally vague: “In other words, we said that the defendants could be convicted because the statute apprised a reasonable person that the conduct, as alleged in the complaint, neared proscribed conduct,” ¶13. Directing a verdict on the facts is significantly different, id. This discussion is not, alone, particularly convincing because it merely raises the riddle of the fact-law distinction (see discussion, here; put simply, the court instructs on the law, the jury finds the facts – but sometimes the distinction is muddied). The decision goes on, though, to find support in State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985):

¶17      Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction.  In Dyess, the instruction directed the jury to find negligence on a finding of speeding.  Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes.  We fail to see a distinction.

¶18      The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper.  The Dyess court rejected this argument. …

That’s plain enough, if nonetheless still involving a certain amount of question-begging – especially in the court’s stress that the challenged instructional language was not a correct statement of the law, ¶19; but that very incorrectness is because of the conclusive presumption created by the language, which makes the court’s “explanation” circular. The court takes pains to ground its holding in the purely statutory rationale of § 903.03 rather than constitutional analysis, ¶1 n. 2. It makes sense, then, to see the holding as a construction of § 903.03 as simply not supporting a distinction between fact and law with regard to instructional presumption. Some of this becomes clearer in the court’s subsequent directive—the jury must be instructed on the substantive law, but not that certain facts satisfy that definition (¶22):

¶23      Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts.  See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper).  Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties.  Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury,^[6] whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury.  Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.

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[6]  … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶33     Wisconsin Stat. § 971.08(1)(b) provides that before a circuit court accepts a defendant’s guilty plea, it must “make such inquiry as satisfies it that the defendant in fact committed the crime charged.” This court has determined that establishing a sufficient factual basis requires a showing that “the conduct which the defendant admits constitutes the offense charged . . . .” White v. State, 85 Wis. 2d 485, 488, 271 N.W.2d 97 (1978) (quoting Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969)); State v. Black, 2001 WI 31, ¶21 n. 8, 242 Wis. 2d 126, 624 N.W.2d 363.

¶34      The duties established in Wis. Stat. § 971.08 are “designed to ensure that a defendant’s plea is knowing, intelligent, and voluntary.”Brown, 293 Wis. 2d 594, ¶23. In our recent decision in State v. Kelty, for example, we allowed that a plea may not be “knowing, intelligent, and voluntary because the plea colloquy was defective in discussing the elements of the crime or the factual basis” for the charges. 2006 WI 101, ¶44, 294 Wis. 2d 62, 716 N.W.2d 886. Thus, establishing a factual basis under § 971.08(1)(b) is necessary for a valid plea. ^[9]

State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski

Issue/Holding: Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:

¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram’s potential influence for only a very limited period of time.

¶58 Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59 Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60 More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …