by admin
on February 13, 2002
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson
Issue: Whether the element of “disclosure” in § 48.981(7) requires that the recipient not previously have been aware of the confidential information.
Holding: Given the plain meaning of “disclosure,” as defined by various dictionaries, as well as construciton of the term under the Federal Privacy Act:
¶23. We conclude, then, that to “disclose” information under § 48.981(7), the recipient must have been previously unaware of the information at the time of the communication. Because the disclosure of the confidential information is an element of the crime, the State has the burden to prove beyond a reasonable doubt that the disclosure took place. In re Winship, 397 U.S. 358, 363 (1970). We thus reverse the court of appeals on this issue.
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by admin
on February 13, 2002
State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards
Issue/Holding: The drug tax stamp law, §§ 139.87-139.96, amended to address State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), doesn’t violate the privilege against compelled self-incrimination, ¶33-36.
Issue/Holding: The drug tax stamp law, §§ 139.87-139.96, doesn’t violate double jeopardy. Possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and a defendant may therefore be convicted of both. ¶39-41.
UPDATE: The 7th Circuit has since held that the old tax stamp law is sufficiently punitive, at least in regard to cocaine, to trigger double jeopardy analysis; and, under facts of the case double jeopardy was violated — the defendant’s assets ordered frozen and seized to pay tax assessment on cocaine; ensuing possession with intent prosecution and conviction amounted to multiple punishment forbidden by double jeopardy clause. Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004). This particular issue — whether tax assessment may be regarded as punitive was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem.
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by admin
on February 13, 2002
State ex rel. Bradley Jones v. Smith, 2002 WI App 90, PFR filed 4/19/02
For Jones: Jeffrey W. Jensen
Issue: Whether a prisoner is entitled to discharge of sentence if transported through another state without use of the Uniform Criminal Extradition Act, § 976.03.
Holding:
¶5 According to Jones and Morey, the government is required to use the extradition process whenever and wherever prisoners are transported through noncontracting states on their way to incarceration in a contracting state. This is patently absurd with no basis in the law of extradition or Wis. Stat. § 301.21.
¶6 Wisconsin Stat. § 301.21(1m)(a) clearly authorizes the department to transfer and confine prisoners in another state. This grant of authority necessarily implies the authority to transfer a Wisconsin prisoner through a sister state while en route to the contracting state. We note the adage that if the exercise of a power is not expressly granted, any reasonable doubt as to the existence of an implied power should be resolved against the department. See DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995). In this case, there can be no reasonable doubt that the grant of authority in § 301.21(1m)(a) would be largely ineffectual if it did not include the implied authority of the department to transfer Wisconsin prisoners through noncontracting states. Id. (agencies may have powers that are necessarily implied from the applicable statutes).
¶7 In addition, the transportation of a Wisconsin prisoner through a state does not impinge on the sovereignty of that state. Therefore, as we explain below, no factual predicates exist to form the basis of an extradition proceeding.
The court adds that a defect in extradition procedure — even removal accomplished by force — doesn’t cause a loss of power to try or punish the prisoner, ¶12, citing State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 316, 240 N.W.2d 626 (1976).
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by admin
on February 13, 2002
State v. Jimmie Davison, 2002 WI App 109, overruled on other grounds, 2003 WI 89, ¶111
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.
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by admin
on February 13, 2002
State v. Glenn E. Davis, 2002 WI 75, reversing and remanding 2001 WI App 210, 247 Wis. 2d 917, 634 N.W.2d 922
For Davis: James M. Shellow
Issue/Holding:
¶16. The rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence. Under our rules of evidence, a defendant may introduce “pertinent trait[s]” of his or her character as evidence. Wis. Stat. § 904.04(1)(a). “Pertinent” refers to the relevance of the traits. 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 404.4, at 133 (2d ed. 2001). Thus, like all admissible evidence, character evidence must be relevant to the facts at issue. Relevancy has two facets: (1) the evidence must relate to a fact or proposition that is of consequence to the determination of the action and (2) the evidence must have probative value, that is, a tendency to establish those consequential propositions. Id. at § 401.1 at 82. A defendant may introduce such relevant character evidence through opinion testimony. Wis. Stat. § 904.05(1).
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by admin
on February 13, 2002
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding:
¶27 … Here, Grindemann did object to the prosecutor’s mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence ‘properly before the court,’ not on any claim that the State was violating either the terms or the ‘spirit’ of the plea agreement. Moreover, the court sustained the objection and admonished the prosecutor to ‘[b]e more cautious’ in his comments, suggesting that the court agreed with Grindemann¹s point that it should not consider any uncharged offenses for which no evidence was presented. Thus, even if prosecutorial silence regarding uncharged offenses was an implied provision of the parties’ plea agreement, Grindemann obtained ‘specific performance’ of that provision when the court sustained its objection.
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by admin
on February 13, 2002
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether evidence that the defendant committed a burglary at the age of 13 was admissible as extrinsic evidence to impeach his testimonial denial, on cross-examination, of intent to steal.
Holding: § 906.08(2) expressly prohibits using extrinsic evidence of specific instances of conduct to attack a witness’s credibility, ¶33. Nor is this evidence relevant under § 904.04(2), under the following analysis. Proof of the prior burglary relates to intent to steal and, because the defendant was currently charged with burglary and robbery — both of which contain the intent-to-steal element, this evidence relates to a fact of consequence, ¶36. However, it must also have probative value:
¶38. We must also take into consideration, however, the fact that Collins was thirteen years old when the prior acts allegedly took place. The difference between a thirteen year old and a twenty year old is much more significant than the difference between someone who is thirty-three and someone who is forty. Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult. See Roberts v. State, 634 S.W.2d 767 (Tex. Crim. App. 1982); Edward J. Imwinklried, Uncharged Misconduct § 8.08 at 27 (1999).
Nor was there a strong similarity between the incidents. Other than the fact that both involved intent to steal from a residence, no similarities were shown. ¶39. The rule on misconduct evidence is one of exclusion. ¶40. Therefore, because the prior misconduct was remote in time and lacked similarity in relation to the charged offenses, it lacked probative value and should have been excluded. ¶41. (The error, however, is deemed harmless.)
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by admin
on February 13, 2002
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether, in a prosecution for battery against the defendant’s live-in girlfriend, evidence of the defendant’s domestic abuse of his former wife was admissible.
Holding: The evidence tended to refute the defense of lack of intent to harm:
¶22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love’s testimony had a strong tendency to make Volk’s defense less probable than if she had not testified. Unlike the “other acts” evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love’s testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim. See id. at 788-89. Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk’s actions involved strikes to the head and choking. We are satisfied that Love’s testimony served to make it less probable that Volk did not intend to harm Swim or that Swim injured herself. As such, the evidence satisfied the second aspect of the second prong of Sullivan.
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