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Wisconsin Supreme Court accepts five new cases

Madison, Wisconsin - December 27, 2011

The Wisconsin Supreme Court has voted to accept five 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.

2010AP2801-CR    State v. Frey
This criminal case examines whether there are  limitations on the way in which a dismissed charge can be used by a sentencing court and whether a trial court must provide prior notice to a defendant that it might consider dismissed charges in fashioning a sentence.

Some background: The state initially charged Michael L. Frey with two counts of sexual assault involving 16-year-old girls, two counts of child enticement, and two counts of delivering marijuana. 

First, it alleged that Frey had engaged in forcible sexual intercourse with one victim who testified at the preliminary hearing that Frey had pushed her down onto the floor, removed her pants and forced himself on her. Another victim said Frey had given her pills that had caused her to fall asleep and that when she awoke, Frey was pulling his hand out of her pants.

After a pretrial ruling by the trial court, Frey and the state reached a plea agreement.  In exchange for the state “dismissing outright” the sexual assault charge involving one girl and the two counts of child enticement, Frey pled no contest to the sexual assault charge involving the other girl and to the two marijuana delivery counts.  The circuit court accepted the pleas and imposed consecutive sentences totaling 24 years’ initial confinement and seven years’ extended supervision.

The issue in Frey’s appeal is the circuit court’s consideration at sentencing of the charges dismissed outright, especially the charge that he had engaged in forcible intercourse with one of the girls.

The Court of Appeals said that at the sentencing hearing, the circuit court considered the facts relating to the sexual assault of both girls, including those “dismissed” under the plea agreement, in order to assess Frey’s character and the pattern of his behavior. The Court of Appeals said that the circuit court inferred that Frey drugged the one girl for the purpose of sexually abusing her.  It rejected Frey’s contention that the crime consisted only of sexual contact, not intercourse, which Frey described as a mitigating circumstance. 

Frey asks the Supreme Court to clarify what is meant by “dismissed outright” and how a circuit court may consider such charges at sentencing.  He says that there is confusion about what the term means. 

Although Frey acknowledges that this court has already specifically held that dismissed outright charges could be considered by a sentencing judge, Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980), he asserts that the fact that a defendant must agree to have a read-in charge considered by the sentencing court must mean that the defendant is not agreeing to have the court consider a charge that is dismissed outright.

Frey also contends that he should have been given notice of the potential use of the dismissed charge prior to sentencing. He claims that if he had received such notice, he would have proceeded to trial or vigorously challenged the accusations in the dismissed charges before sentencing. From Florence County.

2010AP2762    Wis. Industrial Energy Group v. PSC
This certification involves a dispute over the Wisconsin Public Service Commission’s (PSC) approval process, and whether a certificate of public convenience and necessity was needed for a Wisconsin public utility to construct a wind electric generating facility in Minnesota.

Specifically, the District IV Court of Appeals asks the Supreme Court to review if the PSC erred in concluding that a Wisconsin public utility may construct an out-of-state large electric generating facility with a capacity greater than 100 megawatts without such a certificate.

Some background: In June of 2008, Wisconsin Power and Light Company filed an application with the PSC to construct a 200 megawatt wind electric generating facility in Minnesota, to be known as the Bent Tree Wind Farm.  The Minnesota public utilities commission also investigated and approved the project under Minnesota law.

The PSC, after requesting comments addressing whether it should review Wisconsin Power and Light’s application under § 196.49, the certificate of authority statute, or under 196.491, the more demanding certificate of public convenience and necessity statute, concluded by a two-to-one majority that is was appropriate to proceed under § 196.49.  A contested case proceeding was held in April of 2009.  On July 30, 2009, the PSC unanimously approved the construction.

On April 30, 2010, Wisconsin Power and Light filed for approval to increase its electric rates by re-opening its prior year rate case for the limited purpose of presenting the costs of, among other things, the Bent Tree Wind project.  After a contested case proceeding, the PSC unanimously approved recovery of the costs associated with the Bent Tree Wind project. 

Wisconsin Industrial Energy Group, Inc. and Citizens Utility Board, rate payer advocacy organizations with members that are customers of Wisconsin Power and Light, petitioned Dane County Circuit Court to review the PSC’s decisions.

The circuit court denied the petition for review; the Industrial Energy Group and Citizens Utility Board appealed.

District IV notes the consumers take the position that rate payer protection criteria is mandatory in large facility approval situations because large facilities inherently have greater potential to significantly affect rate payers.  District IV says the question arises whether the legislature intended to give the PSC the discretion to approve a large facility without considering rate payer protection criteria.  The consumers argue there is no apparent reason why rate payers should lose their mandatory safeguard when a large facility is built out of state. 

District IV says it is left with two problematic interpretations in resolving this appeal.  It says one view would apply § 196.491 to the wind farm because it is sufficiently large, but that would bring into play some specific § 196.491 requirements that cannot be literally applied to an out-of-state facility.  It says this view would treat similar facilities the same way for purposes of rate payer protection, regardless of where a facility is located.  It says the contrary view would avoid misfits in some of the subsections of § 196.491 but that would deprive rate payers of mandatory protections and would produce a seemingly illogical distinction based on a facility’s location. 

District IV notes that in this case it looks like the PSC did more than was necessary under § 196.49 but did less than would be required under § 196.491. From Dane County.

2010AP2514-CR    State v. Ziegler
This certification from the District II Court of Appeals examines whether there was sufficient evidence to convict the defendant of interference with child custody. The Supreme Court examines the Court of Appeals’ decision in State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332 and Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children.

Some background: Scott E. Ziegler appeals his conviction for one count of repeated sexual assault of a child, one count of interference with child custody, two counts of child enticement, one count of second-degree sexual assault by use of force, two counts of child abuse, and seven counts of second-degree sexual assault of a child. The charges stem from his interactions with several teenage girls he met at a store he owned in downtown Waukesha that sold drug paraphernalia, sex toys, and pornography.  The defendant was sentenced to 35 years of initial confinement and 25 years of extended supervision.

He raises several issues on appeal, but this certification only address his argument that there
was insufficient evidence to convict him for interference with child custody. That conviction was based on a time when he allowed a runaway minor to stay with him for several days. At the time, he was a stranger to the mother of the child, who therefore did not give him any sort of permission to take or look after her daughter.

Ziegler argues that based on the language in Bowden, the conviction for interference with child custody must be overturned because he never had “initial permission” from the child’s mother.  The state argues that the “initial permission” language in Bowden is dicta and the plain language of § 948.31(2) does not contain any “initial permission” requirement.

District II notes that § 948.31(2) states that “whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents ... without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony.”  District II agrees with the state that there is nothing in the statutory language to indicate that in order to withhold custody from a parent, a defendant must have had “initial permission” from a parent to take the child.

District II says Bowden’s interpretation of the statute appears to impermissibly add language to the statute and add an element to the crime.  It notes, however, that despite its disagreement with Bowden’s interpretation, it is bound by Bowden unless the language at issue is dicta. 

District II goes on to say it did not intend for its reasoning in Bowden to be dicta.  It says it is left with two options, either follow Bowden and express its disagreement with it or certify the issue to this court.  District II says following Bowden in this case would require it to overturn a conviction that it believes is statutorily sound.  It notes although three other issues are raised on appeal, it does not believe it could resolve the appeal without deciding the Bowden/interference with child custody issue.

In addition to challenging the sufficiency of the evidence to support the conviction for interference with child custody, the appeal raises three other issues: (1) whether the trial court erred in failing to dismiss as multiplicitous counts 10-14 of the criminal information, which alleged multiple counts of second-degree sexual assault of a child; (2) whether the defendant is entitled to a new trial because the introduction of his mug shot before the jury prejudiced his right to a fair trial; and (3) whether the defendant is entitled to a new trial because the trial court failed to conduct a pretrial necessity inquiry regarding the use of a stun belt. From Waukesha County.

2010AP557-CR    State v. Miller
In this criminal case, the Supreme Court examines whether anonymous tips provided reasonable suspicion for police officers to initiate a stop of Joseph C. Miller’s vehicle under State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106 and State v. Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).

Some background: Miller pleaded no contest to possessing cocaine with intent to deliver (five to 15 grams), as party to a crime. 

Officer Rick Berlin obtained a number of tips regarding Miller’s drug sales. The first four tips were insufficient to provide reasonable suspicion to initiate a stop.  The first was from an inmate facing parole revocation who claimed that he had been using and selling drugs with Miller.  The inmate stated that someone from Milwaukee was delivering crack cocaine to Miller in Marinette.  Although Berlin conducted surveillance of Miller’s home, no suspicious activities were observed. 

Several months later, in the summer of 2008, Berlin conducted some additional surveillance after a series of anonymous calls alleged Miller was engaged in selling drugs from various locations.  Berlin was unable to corroborate the tips. 

In August 2008, Berlin received a phone call from a person asking to remain anonymous.  The caller told Berlin that Miller and/or Ryan Kowalski were planning to drive to Milwaukee after getting off work at 11:00 that evening to buy between $5,000 to $10,000 worth of heroin, cocaine and Oxycontin.  The caller stated the two would drive in Kowalski’s black Ford Explorer rather than Miller’s green pickup truck.  Also, the caller believed Miller and Kowalski would need to be back around 2 p.m. or 3 p.m. the next day for work. 

When Berlin saw Kowalski’s Explorer in the driveway the next morning, he contacted the anonymous caller using the call back feature on his cell phone.  The tipster said he would call back if he had any more information.  At about 4:30 the same afternoon, the caller contacted Berlin to report that Miller had left at 2:00 p.m. alone to pick up drugs in Milwaukee and was driving the black Explorer.  Miller was expected back at 11:00 p.m.  The officer drove past Kowalski’s residence and the Explorer was not visible.  Surveillance was set up along the highway to Milwaukee.  The officers observed the vehicle near Oconto at 10:30 p.m. and pulled it over when it entered Marinette County. 

Miller challenged the stop as being unsupported by reasonable suspicion.  His suppression motion was denied. 

On appeal, Miller argued that the series of tips received by the police were of such low reliability that even taken together they were insufficient to satisfy the threshold for an investigative stop.  The Court of Appeals said the quality and quantity of the information within the police officer’s possession are inversely proportional under the totality of evidence analysis.  The less reliable the source of the particular tip, the more information will be required to reach the threshold of reasonable suspicion.  See Williams, 241 Wis. 2d 631, ¶22. 

The Court of Appeals said the first tip provided by the inmate was of low reliability due to the inmate’s questionable motivations, the time which had passed, and the fact that the information could not be contemporaneously corroborated.  The next three tips were of low reliability due to the anonymous source, the lack of detail, and the police were unable to verify it.  The Court of Appeals concluded that the final tip, while anonymous, was traceable through the cell phone and provided considerably more verifiable details. 

He argues that the Court of Appeals seems to hold that a court may consider unreliable information in deciding whether there is reasonable suspicion, so long as the information has not been affirmatively proven false.  He argues such a holding would reward law enforcement’s failure to investigate a tip because, so long as the tip is not proven to be false, it can be considered against the suspect rather than disregarded. 

The state contends the Court of Appeals applied well-established case law to the facts and correctly determined that the anonymous tipster provided an ample basis for the lawful stop of Miller’s vehicle.  The state says the Court of Appeals based this holding on the totality of the circumstances, taking into account that the tipster provided verifiable details and accurately predicted future behavior.  The state says the court added the prior weak tips, which by themselves fell short of providing reasonable suspicion, but could nonetheless buttress the final strong tip which was the main impetus for the stop.  From Marinette County.

2010AP505-CR    State v. Martin
This case examines several issues related to Miranda warnings. The Supreme Court reviews:
- Whether the court of appeal’s newly created exception  to  Miranda – that  warnings  are  not  required  if  the police questions are designed to prevent a false confession – is a valid exception to Miranda;
- Whether police statements, such as those in this case, are express questioning or the functional equivalent of interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980)., and whether express questioning about the suspect’s guilt is subject to Innis’s additional  requirement that  the police conduct is reasonably likely to  elicit  an incriminate response, and; 
- If,  in  deciding  whether  custodial  interrogation occurred,  courts  should  consider  the  entirety  of  the police and suspect interaction, or only part of it.

Some background: On Nov. 14, 2008, Milwaukee police officers observed an altercation between Randy L. Martin and another driver at a red light.  Martin exited his car, yelled in the direction of a car ahead, and walked toward the car.  The other driver stepped out.  Martin pulled from his coat pocket what looked like a weapon, pointed it at the other driver and said, “I have something for you.”  The other driver motioned to the officer. 

Martin put the object inside his pocket and walked back to his car.  The officer promptly arrested Martin for disorderly conduct.  In searching him, the officer recovered an expandable baton from Martin’s front coat pocket and a knife from his waistband. 
An officer searched Martin’s car and asked the passenger, LeRoy Henry, to step out.  The officer found a loaded .22 caliber handgun inside a plastic storage drawer located under the front passenger seat. 

No Miranda warnings were given before what happened next:
(Milwaukee Police) Officer (Hollis) Smith showed the weapon to Martin and Henry.  He then asked Martin and Henry whether either of them owned the gun.  Both denied any knowledge of it.  Officer Smith then turned to handcuff Henry.  As Martin saw this happening, he asked Smith why he was arresting Henry.  Smith explained that he was arresting Henry for carrying a concealed weapon.  Martin asked the officers if they would let Henry go if Martin said the gun was his.  Officer Smith replied:  “I don’t want you to say it’s yours if it’s not. I just want the truth, is the gun yours.”  Martin responded, “yeah, it’s mine if you let my uncle go.”  Officer Smith then asked Martin to describe the weapon.  Smith said he did so to prevent Martin from falsely confessing:
I just wanted the truth.  I didn’t want him to say the gun was his just to get his uncle out of trouble, and by him describing the gun to me that satisfied me that he had personal knowledge or intimate knowledge of this weapon and knew about it. 

Martin correctly described the gun as a black .22-caliber hand gun.  According to Smith, the caliber would not have been obvious to someone who was not closely familiar with the gun.  Martin was charged with being a felon in possession of a firearm and for carrying a concealed weapon.  After the trial court denied Martin’s suppression motion, his statements and the gun were admitted at trial.  The jury found Martin guilty on both counts.

On appeal, Martin argued the trial court erroneously denied his suppression motion because (1) the officer asked questions likely to elicit incriminating responses while he was in police custody without giving Miranda warnings; (2) the conversation with Martin was an “interrogation” for Miranda purposes even if Martin had initiated it; and (3) the resulting error was not harmless. 

Because there was no dispute that Martin was in custody when he claimed the gun was his and that he had not received Miranda warnings, the Court of Appeals said the sole issue was whether Smith had “interrogated” Martin.  See State v. Fischer, 2003 WI App 5, ¶¶21-23, 259 Wis. 2d 799, 656 N.W.2d 503.   Fischer says that a custodial interrogation under Miranda “generally means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way.”

The Court of Appeals ruled that Martin was not interrogated for Miranda purposes and the admission of his statements at trial was proper as a matter of law.

The state contends the Court of Appeals merely applied long standing principles to the unique facts before it.  It says the Court of Appeals properly deferred to the trial court’s not clearly erroneous finding that the officers did not ask questions likely to elicit an incriminating response. 

The state claims the officers’ words and actions “were only in response to questions asked by Martin why his uncle was being arrested; and to questions asked by Martin whether, if Martin were to admit the gun was his, would police then let his uncle go.”  The State says that based on these not clearly erroneous facts, there was no constitutional violation of Miranda. From Milwaukee 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:

2010AP115  Haugen v. Hanson

2010AP906-CR State v. Bonilla
2010AP1344  Pahl v. Am. Trans. Co.
2010AP1584  State v. Jarvey
2010AP2219  State v. Watson
2010AP2532  Lerch v. City of Green Bay

2010AP2229-CR State v. Grube

2010AP1590-CR State v. Reeves
2010AP1849  MG&E v. LIRC
Justice David T. Prosser, Jr. and Justice Patience Drake Roggensack dissent.
2010AP2013-CR State v. Homesley
2010AP2647  United Asian Svcs. V. Schneider
2011AP1786-W Whiting v. Cir. Ct. for Dane Co.

2010AP2277-CR State v. Pasqual

Eau Claire
2010AP2177-CR State v. Green

Fond du Lac
2010AP2755  State v. Kuslits

2010AP1758  Bollant Farms v. Scenic Rivers Energy
2010AP3060-CRNM State v. Tiggs

2010AP1218-CR State v. King
2010AP1820-CR State v. Worley

La Crosse
2010AP3120  La Crosse Tribune v. Cir. Ct. for La Crosse Co.
Chief Justice Shirley S. Abrahamson dissents.

2010AP1542  State v. Burkart
2010AP1643  Alsteen v. Wauleco
Chief Justice Shirley S. Abrahamson dissents.
Justice Ann Walsh Bradley did not participate

2010AP1888-CR State v. Durocher
2011AP2283-W Hanson v. Marinette Co.

2010AP658  State v. Sanders
Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2010AP1485-CR State v. Reas-Mendez
2010AP1567-CR State v. Johnson
2010AP1627-W Price v. Pugh
2010AP1899-CR State v. Dukic
2010AP1955-CR State v. Harris
2010AP1960-CR State v. Crenshaw
2010AP2070-W Cunningham v. Thurmer
2010AP2132  State v. Eppenger
2010AP2254  Milw. Police Ass’n v. Flynn
2010AP2407-CR State v. Shands
2010AP2521-CR State v. Watts
2010AP2576-CR State v. Merriweather
2010AP2608-CRNM State v. Grady
2010AP2678-CR State v. Omole
2010AP2718  State v. Ellis
2010AP2741-NM State v. Lakaya M.
2010AP3010-NM State v. Nikisha H.
2010AP3011  State v. Cedrick M.
2010AP3109-CR State v. Ofarril-Valez
Justice Patience Drake Roggensack did not participate.
2011AP81  State v. Jacobs
Justice Ann Walsh Bradley did not participate.
2011AP1276-80 State v. Lakesha M.
2011AP2147-W Coleman v. Meisner

2010AP2554-CR State v. Vargas
2011AP400/864-CR State v. Jones
2011AP828-CR State v. Rosenthal

2010AP2024-CR State v. Gorokhovsky
2011AP628/29-W Seiler v. Schwochert

2010AP3128-CR State v. Glaze
Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2011AP1524  Rock Co. HDS v. Jennifer B.

St. Croix
2010AP2179-CR State v. Linderman

2010AP2736  Edwards v. Baraboo School District

2011AP276-CR State v. Kellenberg
Justice David T. Prosser, Jr. did not participate.

2010AP2806-CRNM State v. Andritsch

2010AP1376  Tiggs v. Murphy
2010AP1530  State v. Tiggs

2010AP1183-W Austin v. Pugh
2011AP1375-W Thomas v. Cir. Ct. Winnebago Co.

2010AP1806-CR State v. Strupp

Tom Sheehan
Court Information Officer
(608) 261-6640

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