On Point

State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett

Issue1: Whether Kramer established a prima facie case for selective prosecution.

Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic. ¶14. But the equal protection clause prohibits singling out someone for prosecution when others similarly situated aren’t. ¶18. “Similarly situated” means that the circumstances present no distinguishable legitimate prosecutorial factors that might justify the different treatment. ¶20. Here, tavern owners in one municipality (including Kramer) were singled out for commercial gambling prosecution; others in the county weren’t, even though they also had the prohibited machines. ¶22. Because the record doesn’t show “distinguishable legitimate prosecutorial factors that justify” this action, a prima facie case for discriminatory effect was made; the trial court’s contrary finding was clearly erroneous. ¶¶23-24.

Issue2: Whether the prosecution put forth compelling evidence to rebut the prima facie showing of selective prosecution.

Holding: Because the trial court (erroneously) found no prima facie showing, a rebuttal hearing wasn’t held, and the case must therefore be remanded for “an evidentiary hearing to determine whether the State has produced sufficient evidence to rebut this prima facie showing.” ¶26.

State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly

Issue¹: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.

Holding:

¶28  Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials.  When a respondent was previously convicted of a sexually violent offense in a trial, issue preclusion may be used to prevent the respondent from offering evidence to show that he or she did not commit the prior offense.

Issue preclusion is typically a “defensive” device used to preclude a plaintiff from relitigating a previously litigated issue. But it may also be used “offensively,” as proof of a fact determined adversely in prior litigation. Here, the state seeks to use this doctrine to prove up conclusively — to prevent Sorenson from challenging — the fact of the prior, SVP-qualifying conviction. Issue preclusion may be used offensively in civil cases, Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993), but Sorenson argues (a) that such use is inappropriate in criminal cases and (b) criminal rules apply to an SVP trial. The court recognizes that (a) is a novel question, but doesn’t reach it, assuming without deciding that offensive use is prohibited in criminal cases, ¶17. The question then becomes one of statutory construction, namely whether the absorption of criminal-proceeding rights via § 980.05(1m) bars offensive use of issue preclusion. The court says no, largely for policy reasons (legislature didn’t intend crime victims to be put through the ordeal of a second trial), ¶26. As to the threshold unresolved issue, see U.S. v. Smith-Baltiher, 9th Cir No. 03-50375, 9/9/05, to the effect “that collateral estoppel (may) not be used in a criminal case to prevent a defendant from contesting an element of the offense.”

Issue²: Whether, under the particular facts of this case, issue preclusion was used unfairly against Sorenson to prevent him from presenting evidence that he didn’t in fact commit the underlying sexually violent offense.Holding: Because the trial court didn’t meaningfully determine whether it was equitable to permit the state to prove the prior offense with the use of conviction evidence, the matter must be remanded so that the trial court can exercise its discretion appropriately; if issue preclusion is deemed proper, the SVP judgment is sustained, if not it will be reversed. ¶¶26-36.

The court views the problem not as whether Sorenson should be allowed to present evidence undercutting the prior conviction, but rather as whether the state should have been allowed at all to use the prior conviction to establish the fact of the prior assault, ¶31. The partial dissent points out that this isn’t quite right, that Sorenson should be allowed to present at trial evidence which the fact-finder would weigh to determine the likelihood he would commit future violent acts, ¶¶37 et seq.

State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg

¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue.

Balancing the interests protected by the double jeopardy clause (principally, finality of litigation) against the competing interest (integrity of the judicial system), ¶7:

¶23 … [T]he appropriate balance between the competing policy interests can be struck with the following narrow newly discovered evidence exception. The must establish by clear and convincing evidence that: (1) the evidence came to the state’s attention after a trial; (2) the state was not negligent in failing to discover the new evidence; (3) the new evidence must be material to the issue; and (4) the evidence must not be merely cumulative to the evidence which was introduced at trial. These requirements are based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case….

¶25 We stress that this holding does not determine whether the ‘new evidence; alleged in the state’s perjury complaint against Canon meets the newly discovered evidence test set forth above. We determine only that the doctrine of issue preclusion does not constitutionally bar the state from pursuing perjury charges against Canon. The state still has the burden to prove by clear and convincing evidence that its alleged newly discovered evidence passes muster under each of the four prongs to the newly discovered evidence test. For this reason, Canon is entitled on remand to a separate hearing at which he can put the state to its proof.

State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney

Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.

Holding:

¶7 ‘Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v. Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998). The issue of ultimate fact presented in both trials was whether Guzman handed the gun over to a co-conspirator during a meeting at Guzman’s house on November 24, 1997. The jury in the first trial concluded that Guzman was not in possession of a gun at that time. Therefore, the State was estopped from arguing during the second trial that Guzman was in possession of a gun at that time. The first jury had already decided this issue of ultimate fact in Guzman’s favor.¶8 Our conclusion, however, does not affect the conviction on the substantive charge of criminal gang member solicitation because there is other evidence in the record sufficient to sustain the jury’s conviction on that charge. See State v. Peete, 185 Wis. 2d 4, 23, 517 N.W.2d 149 (1994). Based on our conclusion, however, Guzman is entitled to a resentencing on the criminal gang member solicitation conviction, without consideration of the penalty enhancer for use of a dangerous weapon. See State v. Avila, 192 Wis. 2d 870, 893, 532 N.W.2d 423 (1995). Accordingly, we reverse that portion of the judgment and remand for resentencing with directions to the trial court to resentence Guzman on the gang solicitation charge without the while armed penalty enhancer.

State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell

Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.

Holding:

¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department’s recalculation of Hanson’s HTO status was an annulment and abrogation of that status from the outset of its existence. Consequently, when the circuit court sentenced Hanson, it could not properly treat him as an HTO, or for that matter as if he ever were an HTO. Hanson’s rescinded HTO status can have no legal effect and Hanson must be treated as if it never existed

.…

¶38. As a consequence of the rescission of Hanson’s HTO status, we conclude that the circuit court could not properly impose a criminal penalty based solely upon that status. The imposition of a criminal penalty based solely upon that status would be in excess of that authorized by the legislature and must be declared void pursuant to Wis. Stat. § 971.13.

Because the record is unclear as to whether the enhanced sentence might be justifiable on some other possible basis, the matter is remanded for such a determination, ¶47.

State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader

Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.

Holding: The Implied Consent law requires that all who apply for a driver’s license consent not only to provide a sample, but also a chemical analysis of the sample, ¶¶7-8. More broadly: “the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.” ¶16. Thus, “law enforcement was permitted to conduct an analysis of VanLaarhoven’s blood to determine if it contained evidence of a blood alcohol concentration in excess of the legal limi,.” ¶17.

State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg

Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.

Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), State v. John C. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240 is met, “a forcible warrantless blood draw does not violate the Fourth Amendment … (a)nd it makes no difference whether the suspect refuses the primary breath test and then submits to the blood test (Bohling) or the suspect submits to the primary blood test (Thorstad).” ¶10. Unlike the defendants in those cases, Wodenjak asked for the alternative breath test first, but this factual distinction is insignificant: dissipation of blood alcohol constitutes an exigency that in and of itself justifies the draw under Bohling-Thorstad.

¶13. In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, Wodenjak’s request for the less invasive breath test and the availability of such a test did not deprive Berg of his authority to obtain a blood sample from Wodenjak under Bohling.

Court notes, id. n. 8, that the implied consent law, § 343.305(2), doesn’t provide the arrestee with the option of selecting the test; Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) distinguished.