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Supreme Court accepts three new cases

Madison, Wisconsin - June 21, 2011

The Wisconsin Supreme Court has voted to accept three new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions available online for the newly accepted cases are hyperlinked.

2010AP346-CR State v. Felix  
In this case, the Supreme Court examines case law involving the "attenuation doctrine," which provides that evidence obtained by illegal means may nonetheless be admissible if the connection between the evidence and the illegal means is sufficiently attenuated or remote.

Some background: Devin W. Felix was charged with first-degree intentional homicide in the September 2007 stabbing death of Nathaniel Davids in Schofield. When police responded to a 911 call around 1 a.m. they found a man lying in the middle of the street with three stab wounds to his upper torso.

One witness described a large fight among multiple people at a party and reported that Felix had told her he stabbed someone. The same witness said Felix was drunk and left the scene in his car. Another witness gave a similar account and said Felix left the scene in a green Chrysler. 

Felix was identified as the sole suspect in a search warrant for the address where the party was held. No arrest warrant for Felix or search warrant for Felix's home was sought. Police went to Felix's residence, which was in the basement of a house that was divided into several apartments. There, they observed his mother's green Chrysler.

After planning how to approach the Felix's residence, one officer opened the storm door and held it open while another officer knocked hard on the entry door, causing it to swing completely open and hit a wall. Those officers took aim at Felix, who was sleeping in a recliner at the bottom of steps leading down from the door.  Officers yelled at Felix to exit with his hands in the air.  After taking a moment to wake up, he complied and was handcuffed outside on the ground as officers immediately entered his apartment and conducted a protective sweep, removing and handcuffing his mother and younger brother. 

An officer patted Felix down for weapons and asked if he had any sharp objects on him. The defendant said he had a knife in his front right pocket but police did not find one.  Felix said: "Well, I had a knife on me.  I must have gotten rid of it." 

The defendant was taken to the police station where he was read his Miranda rights and provided further incriminating statements.  At the end of the interview he consented to a buccal swabbing, was transported to jail and his clothing was collected for evidence.

Back at his house, officers spoke to another resident who sub-let to the Felix's family and consented to a search of the house. Officers seized a knife from a shelf near the recliner where Felix had been sleeping, and they seized the Chrysler. 

Felix moved to suppress all evidence derived from his warrantless arrest in his home.  He also argued that all of his statements to police were made without valid Miranda warnings and were involuntary.  He also claimed his vehicle was illegally seized.  The state argued the warrantless home arrest was permitted by exigent circumstances. 

The circuit court denied the suppression motion with one exception: Because the entry door to the residence had a history of popping open in response to a hard knock, and the defendant slept within view from the door, he had no reasonable expectation of privacy. Felix ultimately pled guilty to second-degree intentional homicide.  He appealed, and the court of appeals reversed and remanded. 

On appeal, Felix argued that all physical evidence and statements derived from the warrantless arrest in his home should have been suppressed under both the federal and Wisconsin constitutions, pursuant to Payton v. New York, 445 U.S. 573 (1980); Brown v. Illinois, 422 U.S. 590 (1975); and Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), modified by State v. Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986).

The state's argument on appeal was assumed the warrantless arrest was illegal under Payton, neither the defendant's statements to police nor evidence derived from them need be suppressed as fruits of an illegal arrest.  The state cited Harris, and State v. Roberson, 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302 (Roberson I), aff'd on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111 (Roberson II).

The Court of Appeals noted that Payton established that the Fourth Amendment prohibits police from effecting a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.  The Payton Court also noted that Wisconsin was one of ten states in which the highest court had already held as much, citing Laasch. Because police arrested the defendant in his home without a warrant, he argued the attenuation analysis set forth in Brown must be applied to determine whether any evidence derived from his arrest must be suppressed. 

The Supreme Court is expected to decide under Wis. Const. art. I, § 11, which case governs an attenuation analysis following an in-home warrantless arrest in violation of Payton v. New York, 445 U.S. 573 (1980): the rule announced in New York v. Harris, 495 U.S. 14 (1990); or the three-factor test of Brown v. Illinois, 422 U.S. 590 (1975)? From Marathon County.

2010AP232-AC State v. Abbott Labs
This case involves the interpretation and application of statutes governing the relationship between drug companies and the state with respect to reimbursement of pharmacies through Wisconsin's Medicaid program.

Some background: Reimbursements to pharmacists for prescription drugs dispensed to Wisconsin Medicaid recipients is based on a formula established by the Legislature, involving in part, the average wholesale price (AWP).

 In 2004, the state of Wisconsin sued more than thirty major drug manufacturers, alleging that they published false and inflated AWPs, resulting in overpayments to pharmacies for Medicaid reimbursements. The lawsuit claimed violations of Wis. Stat. §§ 100.18 and 49.49, and 133.05, and unjust enrichment.

Pharmacia was the first defendant to proceed to trial.  On February 16, 2009, a jury returned a verdict in favor of the state, awarding $2 million on the § 100.18 claim and $7 million on the § 49.49(4m) claim.  The trial court granted summary judgment of dismissal on § 133.05 claims and the state withdrew its unjust enrichment claim.  The remaining claims proceeded to trial. 

On May 15, 2009, the trial court vacated the answer to special verdict question 5, which was the basis for forfeitures under the § 49.49(4m) claims.  The court supplied its own answer to question 5 and imposed forfeitures totaling $4,578,000. 

Pharmacia appealed, presenting nine issues, including questions about how the trial court handled the case, separation of powers, and possible evidentiary errors, among other things. The state cross appealed, arguing that the circuit court: erroneously struck the jury's finding of the number of false statements, misinterpreted the "materiality" requirement, considered two improper factors in fixing the amounts for violation and erroneously failed to provide effective injunctive relief. 

The Court of Appeals concluded that while the appeal raises many issues, only three required certification. 

The first issue involves the test for determining a party's right to a jury trial outlined in Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, ¶16, 254 Wis. 2d 478, 647 N.W.2d 177.  This test provides a party has a constitutional right to have a statutory claim tried to a jury when:  (1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was recognized as at law in 1848.  Here, the trial court determined that the § 100.18 claim was akin to common law "cheating" and the § 49.49 claim was akin in common law "fraud." 

The next certified issue involves the process by which Medicaid reimbursement prices are set.  The state presented evidence from which an inference could be made that the legislature knew the reported AWP might be high, but had no way to know by how much because of conflicting information.  The state also presented evidence that the legislature would have been obligated to reduce the reimbursement amounts if accurate AWP was known.  The state argued because of federal regulations, if accurate AWP were available, the legislature would have to use it.

Pharmacia argued because a Medicaid reimbursement formula was set as part of the legislative process, there was no way to know what the legislature and governor would have done with a more accurate AWP estimate.

The third certified issue appears to involve the interpretation of § 49.49(4m)(b), providing forfeitures for those violations "for each statement, representation, concealment or failure."  The state argued that every claim from a pharmacy generated a statement about the relevant drugs AWP is part of the formula that determined the amount of reimbursement. The state argued these claims were made 1,440,000 times in the relevant time period.

Justice N. Patrick Crooks did not participate. From Dane County.

2010AP2273-CR State v. Soto
This certification involves the effect of Wis. Stat. ch. 885, regarding the use of videoconferencing, on prior law.  More specifically, the Court of Appeals asks the Supreme Court to review whether Jon Soto's statutory right to be physically present during a plea hearing was violated when the court conducted the hearing through video teleconferencing. The certification also asks whether the issue was properly preserved.

Some background: In 2008, the Supreme Court created rules on the use of videoconferencing, and it adopted Wis. Stat. § 885.60 to govern the use of teleconferencing technology in criminal cases. 

Under Wis. Stat. § 885.60(2)(a), a defendant in a criminal case is entitled to be "physically present" in the courtroom at all critical stages of the proceedings, including plea hearings. 

Wisconsin Stat. § 971.04(1)(g) provides that a defendant "shall be present" at the pronouncement of judgment and the imposition of sentence.  "Present" means "physically present."  See State v. Vennemann, 180 Wis. 2d 81, 93, 96, 508 N.W.2d 404 (1993).  In State v. Koopmans, 210 Wis. 2d 670, 672, 679, 563 N.W.2d 528 (1997), the court held the defendant may not waive his statutory right to be present. 

Soto, his attorney, and the state's attorney appeared at the Trempealeau County courthouse.  The judge communicated through video teleconferencing from the Jackson County courthouse.  Both counsel and Soto advised the court that it was all right to conduct the plea hearing by video teleconferencing.  Following his conviction, however, Soto filed a motion to withdraw his guilty plea, arguing that conducting the plea hearing via video teleconferencing violated his § 971.04(1)(g) rights. 

The state conceded that Soto's argument might have some force prior to the adoption of videoconferencing rules.  However, the state asserted that the adoption of § 885.60 superseded the holding in the Koopmans case and permitted a defendant to waive or forfeit his right to be physically present at the plea hearing.  The Court of Appeals noted it cannot overturn existing precedent.  Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). 

A decision by the Supreme Court would harmonize rules created in 2008 governing the use of teleconferencing technology in criminal cases with existing precedent. From Trempealeau County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2010AP500-CR State v. Baux

2010AP691-CR State v. Klimek
2010AP1851 State v. Clark

2009AP2436 Columbia Co. v. Kassens

2009AP2995-CR State v. Starks

Eau Claire
2011AP330-W Johnson v. Schwochert

2010AP882 Flynn v. Audra's Corp.

2010AP1116-CR State v. Powless

2009AP1844-CR State v. Carter

2009AP898-CR State v. Jensen

La Crosse
2010AP82-CR State v. Jacques

2010AP1438-CR State v. Mills - Justice Ann Walsh Bradley dissents.
2010AP1442-CR State v. Davis

2010AP1839 Knutson v. Maedke

2009AP2690-CR State v. Ayala
2009AP3190 State v. Sanders
2010AP34/35-CR State v. Sharp
2010AP87 Cianciola v. Milwaukee Metro Sewerage Dist.
2010AP143 State v. Nash
2010AP164-CR State v. Jones
2010AP398-CR State v. Louis
2010AP399-CR State v. Miller
2010AP405-CR State v. Sheehan
2010AP637-CR State v. Cody
2010AP788-CR State v. Collins
2010AP909-CR State v. Eison
2010AP918-CR State v. Dale
2010AP919-CR State v. Killian
2010AP985 State v. Lee
2010AP1028 State v. Williams
2010AP1061-CR State v. Townsell
2010AP1065-CR State v. Hughes
2010AP1559 Collins v. State
2010AP2462-CRNM  State v. Shelton
2011AP874-W Cannon v. Pollard
2011AP1023-W Moore v. Pollard

2009AP2236 Foremost Farms v. Perf. Process

2009AP2457 Erdmann v. Progressive Northern Ins.

2010AP885-CR State v. Merett

2010AP1258-CR State v. Marquez

2010AP1050-CR State v. Driessen

2010AP665  Krumenacher v. Dettlaff

2009AP1039-CR State v. Cardiel
2010AP896 State v. Matthews
2010AP2995-97 Cnty. of Sheboygan v. Bubolz

2010AP1068/69 State v. Gentry

2010AP644-CR State v. Ravestejin

2009AP1087/88 Waukesha Co. DH&HS v. Michelle P.
2009AP2963 State v. Bowers

Tom Sheehan
Court Information Officer
(608) 261-6640

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