Recent
Richard P. Clem Continuing Legal Education
These are the course materials for a conference call CLE on
March 2, 2013. The registration fee
for this program is only $25 for one
I. Criminal Law
A. Search and Seizure (community
caretaker exception); Waiver of Counsel
City of Menasha v. Gracia, 2013 WI 15 (Jan. 13, 2013)
Defendant moved to suppress evidence obtained after police entered his bedroom. Police received a report of a traffic signal that was down and impeding traffic. It appeared that a vehicle had struck the signal and left the scene. At the scene, police found a mangled license plate belonging to the defendant's vehicle. After some investigation, they found the vehicle outside of defendant's home. The lights were off, and nobody answered the door. The defendant's brother subsequently showed up and informed the police that the defendant was probably home. The brother let the officers in and reported that the defendant was locked in his room, where he was telling them to go away. The brother forced the door open, and the officers entered.
The defendant moved to suppress the evidence of intoxication observed by the officers after entering his room. The Supreme Court held that the entry to the bedroom was a valid exercise of the community caretaker function: Based upon the circumstances of extensive accident damage, there was a genuine belief that the defendant might need assistance. The court noted that it would be a "very different situation" if the officers, rather than the brother, had broken open the door. The fact that the officers also had law-enforcement concerns did not negate the community caretaker exception.
The defendant also collaterally attacked an earlier conviction, arguing that his no contest plea in the earlier case had not properly waived his right to counsel. The plea colloquy in the earlier case had not included an explanation of the ways in which an attorney might be helpful. The supreme court held that he had intelligently waived the right, as a reasonable cost-benefit analysis. The defendant did have knowledge of what lawyers do gained, in part, by watching the O.J. Simpson trial on television.
Justices Prosser, Abrahamson, and Bradley dissented.
B. Newly Discovered Evidence
(digital photogrammetry)
State v. Avery, 2013 WI 13 (Jan. 30 2013).
In 1995, defendant was convicted by a jury of armed robbery. In 2007, he filed a petition for post-conviction relief on the grounds of newly discovered evidence. The newly discovered evidence was scientific analysis of surveillance video using digital photogrammetry. This evidence, according to defendant, established that the robber shown in the video was several inches shorter than the defendant. The circuit court denied the petition, finding that the evidence was inherently subjective and that there was not a reasonable probability that the jury would find a reasonable doubt based upon it. The trial court found that the new evidence is "simply not going to make a difference."
The Court of Appeals reversed, finding that the jury was entitled to consider the evidence, especially since the conviction also depended upon the credibility of other witnesses. The state petitioned for review.
The Supreme Court reversed the Court of Appeals, and agreed with the circuit court that there was no reasonable probability that the new evidence would have caused the jury to have a reasonable doubt.
The court distinguished earlier cases where new DNA evidence was wholly inconsistent with the state's theory of guilt. Instead, the new evidence in this case merely "chipped away" at the state's case a bit, and this was held insufficient to warrant a new trial.
C.
Non-custodial interrogation, voluntariness of
confession
State v. Lemoine, 2013 WI 5 (Jan. 8, 2013)
Defendant was convicted of first degree sexual assault of a child. Prior to trial, defendant had moved to suppress statements made to police at an interview, claiming that they were coerced. The trial court held that the statements had been voluntary. The court of appeals held that the statements had been involuntary, but the error of admitting them had been harmless.
The defendant argued that the statement was coerced based on a number of grounds. First, he argued that it was based on a promise not to jail him or to keep the case out of the newspapers in exchange for a "true story". He also argued that a statement that he would not be able to make phone calls from jail rendered the statement coerced. He also argued that exaggeration of the evidence against him made the statement coerced. Finally, he argued that the statement was coerced because no Miranda warning was given.
The Supreme Court held that the statement was not coerced. First, the court noted that the defendant was not vulnerable. The court also noted that there were breaks in the interview, and that the defendant was left alone during those breaks. When the defendant's phone made a noise, he was told that he could answer it. Under these circumstances, the court held that the statements made by the officers were insufficient to overcome the defendant's will to resist.
The court noted that to a large extent, the promises made by the officers were actually honored. The court also noted that exaggeration of evidence is rarely coercive, since they can be countered by the person's own knowledge.
Finally, while the lack of Miranda warnings might be a relevant factor, their absence in this case did not render the statement coerced.
Chief Justice Abrahamson dissented, and would have held the statement involuntary.
II. Administrative Law
A. Child Care License (Bar for
those convicted of certain offenses)
Jamerson v. Dep’t of Children & Families, 2013 WI 7 (Jan. 10 2013).
Wis. Stat. § 48.685(5) bars persons from holding child care licenses if they have been convicted of certain crimes involving fraudulent activity with regard to public assistance. The licensee had been convicted in 1991 of violation of Wis. Stat. § 49.12(1), by obtaining food stamps by making a false representation. The licensee argued, and the supreme court agreed, that a conviction under the statute might have been obtained even in the absence of "fraudulent activity".
The Supreme Court held that there was a genuine issue of material fact that needed to be resolved by hearing. First, the department would need to establish that there was "fraudulent activity as a participant" in the 1991 offense. Second, the department would need to establish that the offense did involve a program enumerated in the child care statute. Since that information was not explicitly stated in the documentary evidence before the court, the case was remanded for hearing.
B.
Public Records
Juneau County Star-Times v. Juneau County, 2013 WI 4 (Jan. 8, 2013)
The county was being defended in a lawsuit by a law firm retained by the county's insurer. During the litigation, the law firm sent invoices to the insurer. The newspaper sought copies of these invoices pursuant to the Public Records Law, Wis. Stat. § 19.36(3), arguing that the invoices were records produced under a contract with the county.
The Supreme Court held that the invoices should have been provided to the newspaper, since they wee produced in the course of the law firm's representation of the county, and in the course of the insurer's contract with the county. The Court rejected the argument that the records were merely created pursuant to the contract between the insurer and law firm. Instead, the Court looked upon them as being a product of a tripartite relationship between the three entities, which included the county.
Justice Roggensack concurred, and emphasized in his opinion that the question of attorney-client privilege was not before the Court.
Justices Prosser, Ziegler, and Gableman dissented.
III. Tort Claims, notice.
Estate of Hopgood v. Boyd, 2013 WI 1 (Jan. 3, 2013).
Plaintiffs were injured in an automobile accident involving a state vehicle, and plaintiffs claimed that the accident was caused by an employee of the state. Accordingly, notice was given to the attorney general, as required by Wis. Stat. § 893.82(3). These notices contained affidavits sworn to by the plaintiffs before notaries, who were paralegals at the law firm of plaintiff’s attorneys. The text of the affidavits made clear that an oath had been given. The notary blocks, however, stated merely:
Personally appeared before me this ___ day of [month],
2009, the above named [claimant], to me known to be
the claimant herein, who signed the foregoing in my
presence.
The state argued that the affidavits did not strictly comply with the requirements of the statute, since they did not contain a statement by the notaries that they had administered an oath.
The Court held that the affidavit was sufficient. However, it cautioned future litigants to use the usual “sworn to” language in the notary block, and even includes the recommended language.
IV. Attorney Discipline
During January, the Wisconsin Supreme Court also decided the following attorney discipline cases:
Office of Lawyer Regulation v. Hahnfeld, 2013 WI 14 (Jan. 30, 2013); Office of Lawyer Regulation v. Wood, 2013 WI 11 (Jan. 25, 2013); Office of Lawyer Regulation v. Hackbarth, 2013 WI 12 (Jan. 25, 2013); Office of Lawyer Regulation v. Harris, 2013 WI 8 (Jan. 23, 2013); Office of Lawyer Regulation v. Hicks, 2013 WI 9 (Jan. 23, 2013); Office of Lawyer Regulation v. Siderits,2013 WI 2 (Jan. 4, 2013); Office of Lawyer Regulation v. Ritter, 2013 WI 3 (Jan. 4, 2013).
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Copyright 2013, Richard P. Clem