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Wisconsin Supreme Court accepts two new cases

Madison, Wisconsin - May 16, 2012

The Wisconsin Supreme Court has voted to accept two 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.

2010AP2003-CR State v. Beamon
This criminal case, which involves charges of fleeing and eluding an officer, examines whether the sufficiency of the evidence used to convict someone should be measured against the instructions actually given to the jury, or against the statutory elements of the crime.

Some background: At approximately 12:45 a.m. on Nov. 19, 2007, two off-duty Racine police officers heard gunshots while working security at the American Legion Bar. While investigating the source of the shots, one officer heard additional shots and saw someone leave a porch and get into a vehicle that drove away. The officer described the vehicle to police dispatch, and an officer in a squad car began to follow the suspect vehicle, which did not have its headlights on.

The vehicle did not slow down or yield after the activation of the squad car's lights and siren, and proceeded through an intersection with a stop sign without slowing down.  After passing through the intersection, the driver's door opened and the driver rolled out. The driverless vehicle continued rolling down the street until it crashed into a parked vehicle. The individual who rolled out of the vehicle and was subsequently caught by the police was Courtney C. Beamon.

The state ultimately charged Beamon with eight separate criminal counts, all as a habitual offender. A jury found Beamon guilty of all eight counts. The only count that Beamon challenged on appeal was the count that charged him with fleeing or eluding an officer, in violation of Wis. Stat. § 346.04(3).

Beamon asserted that, under the instructions given to the jury, the state had to prove that he had increased the speed of his vehicle to flee. Since there was no evidence that he had ever increased his speed, he asserted that the state had failed to provide sufficient evidence on that element of the offense. He argued that the jury instructions, as given, provide the law of the case and govern the review of the sufficiency of the evidence.

Beamon asserted that this rule of sufficiency review was mandated by the Supreme Court's relatively recent decision in a civil case. See D.L. Anderson's Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶22, 314 Wis. 2d 560, 757 N.W.2d 803 ("a challenge to the sufficiency of the evidence is evaluated in light of the jury instructions").

The state argued, and the Court of Appeals agreed, that the evidence should be evaluated in light of the statutory elements of the offense, not the instructions actually given to the jury.

The Court of Appeals viewed the jury instruction as containing an extra element (increasing speed) that was not necessary to the jury's verdict. It therefore looked to the harmless error rule adopted by the Supreme Court in State v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189, which provides that "[a] constitutional or other error is harmless if it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'"

The Court of Appeals determined that the evidence was strong enough that "it is clear beyond a reasonable doubt that a rational jury would have found [Beamon] guilty absent the error." The Court of Appeals pointed out, among other things, that while police pursued Beamon with squad lights and siren activated, Beamon drove 45-50 miles per hour in a 30 mile-per-hour zone at night with his lights off. Moreover, Beamon drove through a stop sign and rolled out of the car, leaving it to crash into a parked vehicle. The Court of Appeals concluded that this evidence met the statutory elements.

A decision by the Supreme Court could clarify how sufficiency reviews should be performed -- by measuring the evidence against the instructions as actually given or against the information (i.e., the charging document) or against the statute defining the offense.

Justice David T. Prosser, Jr. did not participate. From Racine County.

2011AP825/2011AP826 Dane County DHS,v. Mable K., Lee H.
This procedurally complex case examines the appeals process and rules of civil procedure involved when parental rights are terminated. The Supreme Court is asked to review whether a parent should be allowed to appeal a circuit court order entered on remand that denied, in part, a request for a new trial.

Some background: Mable K. has an IQ of 60. She is the mother of Isaiah H. and May K. Dane County first took custody of Isaiah on Jan. 24, 2007 when Mable was taken into custody on a probation hold. The county took custody of May directly from the hospital after her birth on Nov. 13, 2008. The court entered a dispositional order placing the children outside the home on June 24, 2009.

On March 24, 2010, the county filed the termination-of-parental-rights (TPR) petitions at issue here. As grounds for termination, the County alleged both abandonment and continuing need of protections or services pursuant to Wis. Stat. §§ 48.415(1) and (2). On May 24, 2010, the circuit court issued an order compelling Mable K.'s personal appearance at all court hearings. Her counsel apparently did not object to this order and did not discuss the implications of this order with her client.

Mable K.'s parental rights to both children were terminated following a partial trial and a default finding on Jan. 3, 2011. Mable K. appeared at the jury draw and on the first day of trial, but she did not show up the second day until 10 minutes after the court found her to be in default.

The circuit court stated that it found no reason to vacate the default finding.

Mable K. appealed, and on May 18, 2011, Mable K.'s appellate counsel moved the Court of Appeals to remand for a post-judgment hearing on several counts of alleged ineffective assistance of trial counsel.

On Aug. 26, 2011, following a hearing, the circuit court rendered a decision in which it conceded that Mable K. was denied her right to counsel when the court precluded Mable K.'s lawyer from offering evidence regarding default. The court stated that it "should have been allowed to present contrary evidence at that time as to the grounds for default."

The circuit court ruled that the remedy was not a new fact-finding hearing, as requested by Mable K., but rather returning the case to an earlier stage of testimony to be held in the presence of the court instead of a jury. The court then vacated the TPR orders in her oral ruling although the ensuing written order did not vacate the termination orders.

Mable K. objected to this ruling, arguing that the circuit court's refusal to grant her an entirely new fact-finding hearing would shift the burden of persuasion onto her and that it was also fundamentally unfair. She maintains she should be afforded a new trial.

The dispute continued with filings by each side in both the circuit court and Court of Appeals, arguing over the proper court and process for the case to be heard. The Court of Appeals decided that neither side was entitled to appeal as a matter of right and dismissed the appeals.

Mable K. contends, in part, that the result of returning the case to an earlier stage is that she must argue that a default judgment is improper "to a judge who has already denied [her] the right to counsel and has also determined that Mable K. has failed to prove prejudice." Thus, Mable K. contends that fundamental fairness requires an entirely new fact-finding hearing.

Mable K. contends that it is impossible to restore her to the position she was in prior to the denial of the right to counsel. She explains: "The jury is gone, counsel no longer represents Mable K., and the witnesses are long gone…"

The county contends that there are no final orders at this point in this case because the trial court vacated the TPR orders. The county challenges the fundamental fairness arguments, particularly related to Mable K.'s right to counsel, noting that the right to counsel in TPR proceedings is a statutory right – not based on the Sixth Amendment. See Wis. Stat. § 48.23(2); In re Brianca M.W., 299 Wis.2d 637, ¶33, 728 N.W.2d 652 (2007).

A decision by the Supreme Court could clarify the proper mechanism in the event a party to a TPR proceeding receives an adverse ruling on remand. From Dane 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:

2010AP2176-CR State v. Ennis
2010AP2344/45-CR State v. Streckenbach
2011AP388-CR State v. Van Camp
2011AP746-CR State v. Turner
2011AP1050-CR State v. Ivy

2011AP490 County of Calumet v. Ryan

2010AP1522 Est. of Lanzendorf v. Shaw

2009AP2391 Heimermann v. McCaughtry
2010AP888 Sattler v. Gibson - Justice Annette Kingsland Ziegler dissents.
2010AP2473 McFarland State Bank v. Sherry - Justice Patience Drake Roggensack dissents.
2011AP109 Hines v. Resnick - Justice Annette Kingsland Ziegler dissent.
2011AP338-CR State v. Clacks
2011AP1215-CRNM State v. Bracey
2011AP1659 Dane Co. DHS v. Johnny S.
2011AP2639 Dane Co. DHS v. Sophia S.

2009AP3203 Tiggs v. Schwarz
2010AP2222 Felton v. State
2010AP2908 Erie Ins. Exchange v. McLinn
2011AP1127-W Casteel v. Cir. Ct. for Grant Co. - Justice N. Patrick Crooks did not participate.

2010AP2893-CR State v. Voge

2011AP242 Thompson v. Boatwright

2010AP1606-CR State v. Thomas - Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and David T. Prosser, Jr. dissent.
2010AP1637 Mahoney v. Menard - Justice Michael J. Gableman did not participate.
2011AP145 State v. Jean-Paul
2011AP532-CR State v. Howland

2011AP1518-CR State v. Wold

2010AP3149-CR State v. Hanson

2010AP2468 Johnson v. Mt. Morris Mut. Ins.

2010AP1370 State v. Wright
2010AP1421/22 State v. Daniels
2010AP1809 Clear Channel v. City of Milw. - Justice Patience Drake Roggensack did not participate.
2010AP2018-CR State v. Morens
2010AP2237/38 State v. Schroder
2010AP2587-CR State v. Walker
2010AP2715-CR State v. Walter
2010AP2816-CR State v. DeBraska - Justices N. Patrick Crooks, Annette Kingsland Ziegler and Michael J. Gableman did not participate.
2010AP2894-CR State v. Gibson
2010AP2963-CR State v. Roundtree
2010AP2983-CR State v. Hall
2010AP3004-CR State v. Bills
2010AP3104 State v. Scolman
2011AP499-CR State v. Thurman
2011AP577 State v. Lane
2011AP1476-CR State v. Ardell
2011AP1520-CRNM State v. Hernandez
2011AP2642 State v. Marquis O.
2012AP47-W Butler v. Cimpl
2012AP118-W Hambright v. Dallet
2012AP303-W Litt v. Clarke

2010AP2854-CR State v. Walker
2011AP265-CR State v. Winius

2010AP2804-CR State v. Czysz
2010AP2848-CR State v. Booker
2011AP261 Ramirez v. Chen

2011AP335-CRNM State v. Milsap

2010AP1923 Winterberry of Lake Delton v. DOT - Justices David T. Prosser, Jr. and Patience Drake Roggensack dissent.

2010AP2000-CR State v. Wappler - Justice Ann Walsh-Bradley dissents.

2010AP2591 Ford Motor Co. v. Heinrich

2010AP2074 Fontana Builders v. Assurance Co. - Justice David T. Prosser, Jr. did not participate.

2009AP3076 Dyer v. Waste Management - Justice David T. Prosser, Jr. did not participate.
2011AP345 M.M. Schranz Roofing v. First Choice
2011AP436-CR State v. Armstrong

2010AP3134 State v. Haen

2010AP3103-CR State v. Fink
2010AP3152-CR State v. Schillinger

Tom Sheehan
Court Information Officer
(608) 261-6640

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