On Point

State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Because “recklessly” causing harm to a child, § 948.03(b), is determined solely from an objective point of view, evidence related to whether the actor “subjectively thought his [disciplinary action] was reasonable parental discipline” is irrelevant, including evidence of how the actor was him or herself disciplined as a child, ¶¶26-32.

Different issue but similar analysis in the recently-published State v. Ray A. Hemphill, 2006 WI App 185, ¶¶9-13, to the effect that because element of “recklessness” in § 948.03 doesn’t implicate criminal intent, defense of mistake not available, nor need defendant be subjectively aware of risks of conduct. Note, though, that “recklessly” has its own narrow definition under § 948.03(1), and that other crimes involving reckless conduct will contain a subjective component by dint of § 939.24(1)—a point made by Williams, ¶26.

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue/Holding:

¶23      At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. ^[12] The test is subjective; a defendant must present “evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself].”State v. Head, 2002 WI 99, ¶124, 255 Wis.  2d 194, 648 N.W.2d 413; see also Wis. Stat. § 940.01(2)(b). ^[13] A defendant may use what is referred to asMcMorris ^[14] evidence to establish a factual basis to support an imperfect self-defense claim. Head, 255 Wis.  2d 194, ¶122. This evidence may be relevant to a defendant’s state of mind and whether the defendant actually believed that he was in imminent danger of death or great bodily harm, “or that [he] needed to use a given amount of defensive force to prevent or terminate the unlawful interference.” Id., ¶123.

State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶20      Fines and attorney fee obligations involve different State purposes, and therefore a different constitutional analysis. When analyzing the constitutionality of a fee recoupment statute, the court is to consider, among other things, the rationality of the connection between legislative means and purpose and the existence of alternative means for effectuating the purpose.  See Bearden, 461 U.S. at 667. The State’s purpose in collecting a fine is not the same as its purpose in collecting an attorney fee obligation. A fine is a penalty for wrongdoing, and indigency is not a license to break the law with impunity.  Id. at 669. When a defendant cannot pay a fine, the State still has an interest in deterring the prohibited conduct and levying some punishment.  Id. at 672. Attorney fees, on the other hand, are a debt owed to the State. The State’s purpose is to collect that debt.  James v. Strange, 407 U.S. 128, 141 (1972). Punishment will not help the State collect a debt from a defendant who truly lacks the resources to pay.

Therefore, the procedure for raising inability to pay a fine, see State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 289, 201 N.W.2d 778 (1972) (hearing on ability to pay fine required only upon affirmative request), is inapplicable, ¶19. Instead, the court may not order commitment for failure to pay attorney fees without finding ability to pay, ¶24.

State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remandingsummary order of court of appeals
For Coleman: Brian Kinstler

Issue/Holding:

¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian,Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as “actual prejudice.” When the delay is not extensive, the movant’s lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis.  2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.

¶29      Because it may be difficult to quantify “actual prejudice,” we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.

Laches is discussed here as a State’s defense to a habeas claim of ineffective assistance of appellate counsel.

State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis

Issue/Holding:

¶14      The “two clear purposes” of Wisconsin’s hit-and-run statute are:

    (1) to ensure that injured persons may have medical or other attention with the least possible delay; and (2) to require the disclosure of information so that responsibility for the accident may be placed.

State v. Swatek, 178 Wis. 2d 1, 7, 502 N.W.2d 909 (Ct. App. 1993) (citation omitted). Given these purposes, it is not reasonable to conclude that the legislature intended to limit “accident” to incidents that occurred through the “lack of intention” of the operator of the motor vehicle. The injured person needs prompt medical attention regardless of the intention of the operator of the motor vehicle. Similarly, the need for disclosure of information in order to place responsibility for the accident exists whether the operator acted with or without intent. Limiting the meaning of the word “accident” to unintentional conduct significantly undermines the purposes of the statute and is therefore not a reasonable construction.…

¶16      We conclude that the meaning of “accident” in Wis. Stat. § 346.67(1) is not limited to unintentional acts or events. Instead, the only reasonable meaning, when the word is considered in the context of the statute and in light of its purpose, is the broad meaning of “an unexpected, undesirable event.”

State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis

Issue/Holding: The § 346.67(1) requirement that a driver provide name, address, vehicle registration number, and driver’s license “to the person struck” does not violate the 5^thamendment under controlling authority of California v. Byers, 402 U.S. 426 (1971), notwithstanding that the statute encompasses intentional conduct:

¶29      In short, all the analyses leading to the conclusion of the Byers majority that the California hit-and-run statute does not infringe the Fifth Amendment privilege against self-incrimination take into account the possibility of criminal liability for conduct involved in some accidents. Nonetheless the majority concluded that the requirement of stopping and giving one’s name and address does not infringe on the Fifth Amendment privilege. Harmon has not argued that there is any difference between the purpose and requirements of the California statute and those of Wis. Stat. § 347.67(1) that provides a basis for concluding that Byers is not dispositive. Accordingly, we conclude that, underByers, our construction of “accident” in § 347.67(1), which may include intentional conduct, does not infringe Harmon’s Fifth Amendment privilege against self-incrimination. ^[10]

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^[10]  We observe that numerous state courts have concluded that under Byers the reporting requirements of the state’s hit-and-run statute do not infringe a defendant’s privilege against self-incrimination. See, e.g., People v. Goodin, 668 N.W.2d 392, 394-396 (Mich. Ct. App. 2003); Commonwealth v. Long, 831 A.2d 737, 744-50 (Pa. Super. Ct. 2003); State v. Adams, 891 P.2d 251, 253-54 (Ariz. Ct. App. 1995); People v. Jiminez, 15 Cal. Rptr. 2d 268, 276-77 (Ct. App. 1992); Creary v. State, 663 P.2d 226, 229-30 (Alaska Ct. App. 1983);State v. Melemai, 643 P.2d 541, 545-46 (Haw. 1982); State v. Greenberg, 607 P.2d 530, 533-35 (Kan. Ct. App. 1980); State v. Smyth, 397 A.2d 497, 499-500 (R.I. 1979); Trail v. State, 552 S.W. 757, 758 (Tenn. Ct. App. 1976);Banks v. Commonwealth, 230 S.E.2d 256, 258-59 (Va. 1976); People v. Samuel, 277 N.E.2d 381, 383-87 (N.Y. 1971); State v. Engstrom, 487 P.2d 205, 210 (Wash. 1971); Lamb v. State, 488 P.2d 1295, 1297 (Okla. Crim. App. 1971).

Byers is a 4-1-4 decision, Harlan being the “1” in concurrence; no majority opinion, in other words. Harmon seems to rest its conclusion almost entirely on the “lead opinion’s analysis,” with but passing reference to Harlan’s concurrence (¶28). Because this methodology deviates from the established norm, it is impossible to say with any certainty that the court’s conclusion is unassailable. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) (“when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding”); see also Marks v. U.S, 430 U.S. 188, 193 (1977)  (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’ Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). That is, the court’s scanting reference to Harlan’s concurrence has it backward. The court says that “Justice Harlan’s analysis also takes into account the fact that there may be criminal liability for the conduct involved in an accident for which the statute imposes the obligation to stop and identify oneself,” ¶28—but the question isn’t whether that analysis took criminal liability “into account” but whether both it and the lead opinion shared that rationale. As it turns out, they quite possibly did, see 402 U.S. at 458; on the other hand, the extension of that rationale to intentional conduct could well be something else, and would require much more detailed scrutiny of the concurrence.

City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning

Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.

Holding:

¶11 Thus, a threshold prerequisite for application of the doctrine is that, in order to be precluded from “relitigating” an issue, a party must have “actually litigated” it previously. …

¶12 … By contrast, a determination is not conclusive “as to issues which might have been but were not litigated and determined in the prior action.” …

¶13 The question of whether the arresting officer had probable cause to arrest Nytsch was not “actually litigated” during the judicial review hearing. The court’s order vacating the administrative suspension is more akin to the Restatement’s examples of nonlitigated circumstances, such as when an admission is given and evidence relating to the issue is never heard before a court and therefore a considered judgment is never made.

The court goes on to invoke notions of “fundamental fairness,” which include “the adverse impact on public safety that would result from allowing issue preclusion to prevent relitigation of probable cause under the circumstances of this case,” ¶17. The court also “overrules” (that is not technically correct, but close enough) the unpublished case of Village of Westfield v. Mashek, 1994AP361, 11/10/94, ¶18 n. 6. (Mashek has no precedential value, because it isn’t published, so it can’t be overruled; instead, the court says that the “result” in that case “is wrong.”)