On Point

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

Issue/Holding: ¶27 n. 7:

This court explained the procedure for read-in charges in Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971). When charges are read in during sentencing, the defendant admits to having committed the underlying crimes, but does not plead guilty to the charges, and therefore is not sentenced for those charges. However, such admitted, uncharged offenses are considered in the sentencing for the offenses charged. “Thus under the read-in procedure, the defendant does not run the risk of consecutive sentences or even concurrent sentences. His only risk is a longer sentence for the crime charged but this sentence cannot exceed the maximum.” Id. at 732. Read-in charges do not constitute prior convictions and cannot be used under the state’s repeater statute, Wis. Stat. § 973.12. Id. Read-ins also serve a role in setting restitution. Robinson v. City of W. Allis, 2000 WI 126, ¶42, 239 Wis. 2d 595; 619 N.W.2d 692; State v. Szarkowitz, 157 Wis. 2d 740, 753-54, 460 N.W.2d 819 (1990).

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

Issue/Holding: In order to trigger read-in procedure there must be a sufficient showing of an agreement to read in the offense at issue:

¶28      Nowhere in the transcript of the plea hearing, the transcript of the sentencing hearing, the transcript of the adjourned sentencing hearing, or the plea questionnaire do either the parties or the court refer to the dismissed charges as being read in for the purpose of sentencing. The only place in the record where the charges are characterized as read-ins is the caption reference in the PSI. Without anything in the record establishing that the State and Lackershire agreed to read-in charges, or that the circuit court treated the dismissed charges as read-ins, we cannot treat this as a read-in case. Accordingly, we determine that the court of appeals erred in concluding that the dismissed charges were read-in offenses, and whether Lackershire understood the nature of read-ins is not at issue. ^[8]

State v. William Troy Ford, 2007 WI 138, affirming unpublished decision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

Issue/Holding: A surveillance tape that became unplayable was “destroyed” within the meaning of § 910.04(1), and its contents could be testified to by pre-destruction viewers:

¶68 We are satisfied that where a tape is damaged and unplayable, the proponent of the evidence makes reasonable efforts to restore the tape to playability, and those reasonable efforts fail, the tape is destroyed within the meaning of § 910.04(1). We find persuasive the reasoning of a treatise on the federal counterpart of § 910.04(1):

“Destroyed” usually signifies that the item no longer exists. However, an item may be destroyed for purposes of this rule even if it is not completely obliterated. Writings become unreadable, recordings become inaudible, and photographs fade. In addition, the contents of such items can be intentionally and irreversibly altered. The best-evidence doctrine is all about proving the contents of such items. Thus, so long as the contents can no longer be discerned, it makes sense to conclude that the item is destroyed for purposes of Rule 1004(1) even if the medium on which those contents were recorded still exists. Similarly, partial destruction may be sufficient under Rule 1004(1) to permit the admission of secondary evidence concerning the portion destroyed.

Charles Alan Wright & Victor James Gold, 31 Fed. Prac. & Proc. Evid. § 8014 (2007).¶69 Thus, because the surveillance tape was destroyed, and Ford has made no argument that the State destroyed the tape in bad faith, [7] the testimony regarding the contents of the tape is admissible under § 910.04. We therefore determine that the circuit court appropriately exercised its discretion in admitting testimony regarding the contents of the tape.

State v. Edward Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, reversing 2006 WI App 136

Issue/Holding: Bannister’s confession to giving morphine to someone who died from an overdose of the substance was sufficiently corroborated to support his his conviction:

¶ 22 We first address whether the State satisfied the corroboration rule during the course of Bannister’s trial. The corroboration rule is a common-law standard. …

…

¶ 26 The present phrasing of the corroboration rule test requires that the State corroborate “any significant fact.” …

…

¶ 31 A significant fact is one that gives confidence that the crime the defendant confessed to actually occur. A significant fact need not either independently establish the specific elements of the crime or independently link the defendant to the crime. Rather, the State must present at least one significant fact that gives confidence that the crime the defendant has been convicted of actually did occur.

…

¶ 34 In this case, the evidence of morphine being present in Michael Wolk’s body at the time of his death constitutes a significant fact. The presence of morphine is evidence of the fact that Michael used morphine. That fact corroborates Bannister’s confession that he delivered morphine between December 2002 and mid-January 2003 to the Wolks because it gives confidence that he in fact gave the Wolks morphine.

…

¶36      Bannister contends that a significant fact must be a more meaningful and particularized fact. …

¶37      Adopting such a definition of significant fact would deviate from Wisconsin’s well-established test for corroboration. …<

¶38      The State presented evidence that Michael Wolk used morphine. That fact was significant because it gave confidence that Bannister delivered morphine to the Wolks. Accordingly, the State satisfied the corroboration rule.

Though the court “reject(s) the approaches of other jurisdictions,” it doesn’t say what those approaches might be, which makes the remark less illuminating than it should be. The “significant fact” test is, to be sure, a bit squishy but it is nonetheless clear that it mandates at least some independent corroboration of the charged crime. Note that the federal rule, as recently characterized by the Washington supreme court, merely requires “independent evidence sufficient to establish that the incriminating statement is trustworthy,” State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2007). In other words,Bannister doesn’t appear to go as far as the relaxed federal rule, and it remains to be seen just how relaxed our rule is. Did our court mean, for example, to reject the Washington rule (Brockob) which requires corroboration of the specific crime charged? Simply not clear.

State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen

Issue/Holding:

¶38      We agree with the State’s assertion that cases from other jurisdictions are not binding on Wisconsin courts. State ex rel. E.R. v. Flynn, 88 Wis. 2d 37, 46, 276 N.W.2d 313 (Ct. App. 1979). We recognize that such case law is oftentimes helpful, and may be persuasive, but we hold that the circuit court and court of appeals did not err in deciding not to follow the decision in State v. Young, 739 P.2d 1170, since they were not required to do so, and did not find the reasoning persuasive.

Oneida Co. DSS v. Nicole W., 2007 WI 30, affirming unpublished decision

Issue: Whether partial summary judgment against Nicole was properly granted under Wis. Stat. § 48.415(10) (prior involuntary TPR within 3 years) when the prior termination order was based on her default for failing to personally appear at the fact-finding hearing.

Holding:

¶27 We agree with the court of appeals that to require more evidence than a prior involuntary termination order to satisfy Wis. Stat. § 48.415(10) would be tantamount to permitting a collateral attack on the prior order. A collateral attack on a judgment is “an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it.” Zrimsek, 8 Wis. 2d 1, 3 (citing 5 Callaghan’s, Bryant, Wisconsin Pleading and Practice (3d ed.), p. 373, § 37.97). [12]

¶28 In general, “a judgment is binding on the parties and may not be attacked in a collateral action unless it was procured by fraud.” State v. Madison, 120 Wis. 2d 150, 154, 353 N.W.2d 835 (Ct. App. 1984) ….

 ¶33 … (W)e have applied Sixth Amendment concepts in the context of termination of parental rights proceedings, even though the proceedings are civil in nature and the Sixth Amendment does not apply to civil proceedings.

 ¶34 When a claim of denial of the right of counsel is made, the claimant has the burden to make a prima facie showing of a violation of the right to counsel. …

 ¶35 However, we need not determine whether the prior Waukesha County termination of rights order may be collaterally attacked due to a violation of the right to counsel because Nicole made no prima facie showing that she was denied the right of counsel in the termination of rights proceeding regarding Rockey. …

Oneida Co. DSS v. Nicole W., 2007 WI 30, affirming unpublished decision

Issue: Whether partial summary judgment against Nicole was properly granted under Wis. Stat. § 48.415(10) (prior involuntary TPR within 3 years) when the prior termination order did not state the explicit § 48.415 ground relied on.

Holding:

¶2 We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, “on one or more of the grounds specified in this section,” in § 48.415(10)(b) refers to proving only that the prior termination was an involuntary termination. …

¶19 Wisconsin Stat. § 48.415(10)(b) does not require proof of which of the available 12 grounds set out in § 48.415 was the basis for the involuntary termination because the phrase, “on one or more of the grounds specified in this section,” is meant as only a general directive that assures the termination of rights was involuntary. In regard to the sufficiency of a prior order that can be used as grounds under § 48.415(10), there is no need for the order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b). [9] …

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[9] Of course the issue may be different if the termination of Nicole’s parental rights to Rockey were being appealed. In that case, the reviewing court could be asked to ascertain whether sufficient proof was admitted by the circuit court to support the court’s determination that a specific ground was proved by clear and convincing evidence. However, an appeal of the termination of Nicole’s parental rights to Rockey is not before us.