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Wisconsin Supreme Court accepts six new cases

Madison, Wisconsin - April 1, 2013

The Wisconsin Supreme Court has voted to accept six 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. The Court of Appeals' opinion for the newly accepted cases are hyperlinked.

2011AP2424-CR State v. Nancy J. Pinnow / 2012AP918 State v. Travis J. Seaton
In this certification involving two cases, the Supreme Court examines whether the failure to object to the closure of a public trial under the Sixth Amendment is to be analyzed on appeal under the forfeiture standard or the waiver standard.

Some background: The Court of Appeals has concluded that in each of these cases that Fond du Lac County Circuit Court, Judge Richard J. Nuss presiding, removed the public from the courtroom during jury selection without complying with the four-part Waller test.

Under Waller v. Georgia, 467 U.S. 39 (1984), the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

In State v. Pinno, the circuit court stated at the outset of the trial: "Other than the jury, nobody will be in the courtroom… I want no one else in here during the entire voir dire process until the jury is selected… I want no press in here either…"

Nancy Pinno's trial counsel did not object to the closure. Pinno filed a post-conviction motion for a new trial on the grounds that her constitutional right to a public trial was violated by the court's exclusion of the public during jury selection. The circuit court denied the motion after an evidentiary hearing, concluding that any error was harmless.

In State v. Seaton, the same circuit court judge excluded the public from the courtroom during jury selection, stating: "If it becomes necessary… I'm just going to excuse everybody in the courtroom, that's the way it's going to be…"

Travis Seaton's trial counsel did not object to the closure. Seaton filed a post-conviction motion for a new trial on the grounds that his constitutional right to a public trial was violated by the court's exclusion of the public during jury selection.

The circuit court denied a request for an evidentiary hearing on the motion as well as a request for the substitution of another judge to hear the motion. The court then concluded that the right to a public trial is not absolute, and that any violation was trivial.

On appeal, the Court of Appeals noted that only two exceptions excuse the closure of a public trial from being a constitutional violation. State v. Vanness, 2007 WI App 195, ¶9, 304 Wis. 2d 692, 738 N.W.2d 154. The first is where the trial court complies with the four-part test set forth in Waller. The trial court did not do so here. The second exception is where an unjustified closure (i.e., one that does not meet the Waller test) is trivial.  A closure is trivial if it does not violate the core values of the Sixth Amendment, which are: (1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury. The closure of a trial that is unjustified and not trivial is considered a structural constitutional error subject to automatic reversal. See State v. Ford, 2007 WI 138, ¶43 & n.4, 306 Wis. 2d 1, 742 N.W.2d 61.

The Court of Appeals noted that it is undecided in Wisconsin law, and unsettled among other jurisdictions, as to whether a defendant's failure to timely object to a trial closure should be considered forfeiture or waiver of the error.

Forfeiture is the act of failing (either accidentally or strategically) to assert a right, whereas waiver is the act of affirmatively and deliberately relinquishing a right. Thus, if the right to a public trial is a forfeitable right, then it may be lost by a failure to object at trial. If the right to a public trial is a waivable right, then it is not lost by a failure to object at trial.

Pinno and Seaton argue that, as the right to public trial is a structural constitutional right, it can only be waived through an intentional relinquishment of the right. The State argues that the forfeiture rule should apply because an objection at trial would allow the circuit court to take corrective action and avoid appellate review. From Fond du Lac County.

2011AP1956 Kochanski v. Speedway Superamerica
In this case, the Supreme Court examines the "absent witness" jury instruction, which effectively allows jurors to presume that the party who has elected not to call certain witnesses is hiding relevant, adverse information from them.

Some background: James Kochanski suffered a broken arm and wrist injury when he slipped and fell on a snow-covered curb at a Speedway station in Milwaukee. The curb was painted yellow, but Kochanski didn't see it because it was covered with snow.

Kochanski and his wife sued Speedway for negligence and violation of Wisconsin's safe place statute. The case was tried to a jury. Kochanski, his wife, and two of his treating physicians testified at trial. The Kochanskis' attorney also offered into evidence Speedway's interrogatory responses indicating there were five Speedway employees working at the time James fell. Speedway did not call any witnesses at trial. Instead it played store surveillance footage of the accident. Speedway explained during its opening statement that it would not be calling witnesses because the video was sufficient to prove Speedway was not negligent.

Given Speedway's decision not to call any witnesses, the Kochanskis requested that the trial court give Wis. JI-Civil 410 to the jury. The instruction provides:

If a party fails to call a material witness within [its] control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for not calling the witness, you may infer that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.

The trial court decided to give the instruction over Speedway's objection. During closing argument, the Kochanskis' attorney commented on the fact that Speedway had not called any witnesses and suggested Speedway was withholding information from the jury. The jury concluded Speedway was negligent in failing to maintain its premises. It found Kochanski was not negligent. Speedway filed a motion to set aside the verdict and for a new trial. The trial court denied that motion.

Speedway appealed, and the Court of Appeals reversed, concluding that the trial court erred in giving the absent witness jury instruction to the jury because it allowed the jury to presume Speedway was deliberately hiding relevant, adverse information.

The Court of Appeals noted that while a trial court has broad discretion to decide whether to give a particular jury instruction, it must exercise that discretion to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence. The court went on to note that the absent witness instruction should be given only if the uncalled witnesses are material and within the party's control or it would "more natural" for the party to call those witnesses and the party fails to satisfactorily explain the witnesses absence.

The Court of Appeals noted Speedway chose to use a videotape to prove it was not negligent, and it argued the videotape showed that conditions on the premises were kept up to a reasonably safe standard and that Kochanski fell as a result of his own negligence.

The Kochanskis argue that the trial court appropriately gave the absent witness instruction. They argue the Court of Appeals erred in concluding that there was not a sufficient showing the uncalled witnesses were material, in saying it was not "more natural" for either party to call Speedway's former employees because they were equally available to both parties, and that the Kochanskis did not sufficiently show Speedway failed to satisfactorily explain the witnesses absence. From Milwaukee County.

2011AP2833-CR State v. Robinson
In this case, the Supreme Court examines if a defendant's double-jeopardy rights were violated when the circuit court increased the total period of initial incarceration one day after imposing the original sentence.

Some background: On Jan. 22, 2011, the defendant, Jacqueline R. Robinson, was charged with possession of controlled substances – narcotic drugs – contrary to Wis. Stats. §§ 961.41(3g)(am), and 939.50(3)(i) and battery to police officer, contrary to Wis. Stats. §  940.20(2) and 939.50(3)(h). Robinson eventually entered guilty pleas to the charges.

On May 10, 2011,  the Milwaukee County Circuit Court, Judge Paul R. Van Grunsven presiding, sentenced Robinson to 42 months imprisonment (18 months initial confinement/24 months extended supervision) concurrent to any other sentence on one count and to 60 months imprisonment (24 months initial confinement/36 months extended supervision) concurrent to any other sentence on two other counts.

The next day, the judge sua sponte recalled this case and extended the sentence on the second two counts to 69 months imprisonment (33 months initial confinement/36 months extended supervision), concurrent to any other sentence.

On Nov. 14, 2011, Robinson filed a Rule 809.30 post-conviction motion to restore the prior sentence, asserting that the court violated the double-jeopardy clause of the U.S. and Wisconsin constitutions. The court denied the motion, finding there was no violation of the double-jeopardy clause because it had a mistaken understanding of the defendant's sentence in another case. In its remarks changing the sentence, the circuit court advised the parties it had made a mistake because it was under the impression a previously imposed sentence was consecutive when in fact was concurrent.

The trial court said this case was consistent with State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42 in that the court did not increase the sentence upon reflection, but instead increased it because the court was under the mistaken impression about another sentence. The Court of Appeals affirmed the conviction and the trial court's decision to deny the motion.

Robinson contends her state and federal constitutional rights against double jeopardy were violated when the circuit court increased her sentence, arguing that the Court of Appeals' decision in this case is in conflict with an unpublished Court of Appeals' decision, State v. Crewz, (2007AP2381-CR).

In Crewz, two days after the initial sentencing, the case was recalled and the circuit court altered the sentence to provide it was consecutive rather than concurrent. In Crewz, the court could not determine the trial court made a good faith mistake and it posed a sentence contrary to what was clearly its original intent. Under the circumstances, the Crewz court concluded resentencing was impermissible. From Milwaukee County.

2011AP2733-CR State v. Lopez
This case examines the interplay of a trial court's discretionary power to accept a plea withdrawal and Wis. Stat. § 908.08, which allows child-abuse victims under the age of 16 to testify by video. More specifically, the Supreme Court reviews a Court of Appeal's decision regarding the determination of prejudice where the child victim turned 16 while the case was pending.

Some background: In October 2008, the state accused Minerva Lopez of physically abusing a girl who was 14 when the alleged abuse occurred. Staff at a child advocacy center in Madison recorded several interviews with the girl about the crimes. There were three interviews in total; two were conducted within a month of the girl being rescued from the abusive living situation. In them, the girl gives detailed descriptions of each act of abuse, which may have lifelong effects, including permanent disfigurement, scarring, and limb damage.

Lopez initially pleaded not guilty or not guilty by reason of mental disease or defect. The state filed a pretrial notice of its intent to introduce audio-visual recordings of the interviews. The state sought to admit the interviews at trial pursuant to § 908.08, which creates a hearsay exception for the admission of recorded statements of children as a means of having them avoid mental and emotional strain that could be caused by giving direct testimony at trial. State v. Snider, 2003 WI App 172, ¶13, 266 Wis. 2d 830, 668 N.W.2d 784. The court may admit the recordings if certain criteria are met; among them is that the trial begin before the child's sixteenth birthday. See § 908.08(3)(a) and (4).

The circuit court granted the state's motion, finding the recordings satisfied the criteria in § 908.08. In November 2009, pursuant to a plea agreement, Lopez pled no contest to six counts of child abuse.

In May 2010, prior to sentencing, Lopez, by new counsel, filed a formal motion to withdraw her pleas. Lopez alleged in part that the pleas were unknowing, and that Lopez was rushed into making a decision regarding the plea. At the hearing, Lopez testified she wanted to go to trial. She said she had language difficulties with her first attorney because he did not speak perfect Spanish and did not use an interpreter when he talked with her. She said her attorney told her just before the plea that she should plead and if she did not take the plea that she would not be allowed to testify against her husband in another case. She said she felt the pressure by her attorney to plead, and she also said she did not understand the plea hearing very well.

The trial court, Judge Nicholas J. McNamara presiding, denied Lopez's motion for plea withdrawal. The trial court concluded that Lopez had established a fair and just reason for plea withdrawal. However, he agreed with the state's argument that the state would be substantially prejudiced because, with the passage of time since Lopez's pleas, the girl had turned 16 and the state would no longer be able to introduce the recorded statements under § 908.08. The court noted concerns that the girl would not remember the specific details of the abuse and that it could be traumatic for her to have to testify against her parents. Accordingly, the court denied the motion.

After sentencing, Lopez moved the court to reconsider its decision denying her presentencing motion to withdraw her pleas. The court denied the motion. Lopez appealed and a divided Court of Appeals reversed. The Court of Appeals ruled that the Legislature, in enacting Wis. Stat. 908.03(3)(a), made the policy decision that a witness no longer needs the protection afforded to children younger than 16 years old.

The Court of Appeals acknowledged that a decision to grant or deny a motion to withdraw a plea is within the circuit court's discretion, citing State v. Rushing, 2007 WI App 227, ¶16, 305 Wis. 2d 739, 740 N.W.2d 894; State v. Bollig, 2000 WI 6, ¶34, 232 Wis. 2d 561, 605 N.W.2d 199 (if the defendant demonstrates a fair and just reason to withdraw his or her plea, the burden shifts to the state to show that the state would be substantially prejudiced by plea withdrawal).

The Court of Appeals was not persuaded by the state's reliance on two cited cases, Bollig  232 Wis. 2d 561, ¶¶42-46 and Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 894 explaining that: (1) those plea withdrawal cases do not involve the inadmissibility of recorded statements under § 908.08 due to a child turning 16, and (2) to the extent they deal with prejudice following from a faded memory, the cases involve much younger children where that problem is far more likely.

In addition to contending that the Court of Appeals' decision conflicts with Bollig and Rushing, the state says it violates the principle that it is within the trial court's discretion to allow a defendant to withdraw her plea before sentencing. See State v. Jenkins, 2007 WI 96, ¶29, 303 Wis. 2d 157, 736 N.W.2d 2.

Lopez contends that at the plea withdrawal hearing, the state only presented evidence regarding the girl's age, not the state of her memory. She notes the trial court found that the girl was physically and mentally able to testify in person and had done so in another case in which she was the victim of child abuse. From Dane County.

2012AP958 Milwaukee Co. v. Mary F.-R.
This case involves constitutional challenges to the involuntary commitment of a woman under Wis. Chapter 51, the state's mental health commitment law.

The Supreme Court is asked to examine two issues:

  • Under State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, is a facial challenge to the constitutionality of a statute forfeited where the issue was presented to the circuit court, but not as a constitutional challenge, and where the constitutional argument does not challenge the entire statutory chapter?
  • Does Wis. Stat. § 51.20(11), which provides a jury of only six people and requires only a five-sixths verdict for persons subject to involuntary commitment, violate equal protection, given that Chapter 980 provides persons subject to involuntary commitment a jury of 12 and requires a unanimous verdict?

Some background: Police brought Mary to the Milwaukee County Mental Health Complex (MCMHC) after a neighbor called police at about 4:30 a.m. one day in 2011. The neighbor reported that Mary had thrown a bucket of water on a window of the neighbor's house and had threatened to shoot someone as she held an iron pipe or pole.

While investigating, police discovered Mary's home was barely habitable – the carpet appeared to be wet and had a mildew smell. The only things in the living room were two pails of water. There was no food in the apartment. All the appliances had been unplugged and their cords had been taken out and lined up. The stove had been dismantled and there were no lights or electrical power in the apartment.  The officers did not find a gun. Mary was taken to the MCMHC.

Milwaukee County filed a petition for an involuntary commitment. At the initial probable cause hearing before a court commissioner, Mary made the following statement: "You'll hear a different story about what happened on that ward, and five 12-person jury demands—or six." At that same hearing, the court accepted Mary's pro se written filing, which stated that it was a "12 person jury trial demand."

At a subsequent probable cause hearing before a circuit court judge, Mary again orally requested a 12-person jury: "I want a 12-person jury demand." Mary's counsel never filed a formal demand for a 12-person jury.

The court held a jury trial on Dec. 8, 2011, slightly more than a week after the initial probable cause hearing. At the subsequent trial on the county's petition, the circuit court empaneled a jury of six persons, pursuant to Wis. Stat. § 51.20(11). Neither Mary nor her attorney objected to the jury.

The jury found that the County had met its burden of proof, that Mary was mentally ill, that she was dangerous to herself and/or others, and that Mary was a proper subject for treatment. The circuit court entered a written order of commitment based on the jury's findings.

On appeal Mary argued, among other things, that the six-person jury and five-sixths vote provisions in Wis. Stat. § 51.20(11) violated her equal protection rights because a person subject to a commitment under Wis. Stat. ch. 980 is entitled to a 12-person jury that must reach a unanimous verdict.

The Court of Appeals concluded that Mary had forfeited the constitutional argument because (1) she had not argued the equal protection challenge in the circuit court and (2) she had accepted the six-person jury without objection.

Mary argued that because she was making a facial challenge to the six-person and five-sixths provisions of the statute, the challenge went to the circuit court's subject matter jurisdiction and could not be forfeited, even if not raised initially in the circuit court. Mary relied on Bush, 283 Wis. 2d 90, ¶¶14-19, and State v. Campbell, 2006 WI 99, ¶45, 294 Wis. 2d 100, 718 N.W.2d 659, as support for this categorical interpretation of the law.

However, the Court of Appeals interpreted Bush to have a much narrower scope and distinguished it from this case. It therefore found her constitutional challenge to have been forfeited and refused to address the substance of her challenge.

Mary has asked the Supreme Court to address the scope of the Bush decision and the substance of her equal protection challenge to the involuntary civil commitment law. From Milwaukee County.

2011AP2698-CR State v. Jackson
This case examines the holding in McMorris v. State and related Wisconsin case authorities in light of Wis. Stat. §§ 904.04(2)(b) and 904.05. The Supreme Court reviews whether homicide suspect Curtis L. Jackson's rights of compulsory process and fair trial were denied when his motion to enter evidence of the victim's reputation for violence was denied.

Some background: Jackson was charged with one count of first-degree intentional homicide by use of a dangerous weapon for the shooting death of Angelo McCaleb. Multiple witnesses, including Jackson, testified at Jackson's trial.

Although the details of the shooting and the events leading up to the shooting varied, it is undisputed that the events were triggered when Tanya Davis, a woman living at Jackson's house, borrowed Jackson's car to go to a bar on the evening of Nov. 4, 2008. Davis testified that while at the bar, she had drinks with McCaleb and his friend, Wayne Johnson.

Jackson called Davis while she was at the bar, asking her to return his car. Davis testified that she returned the car at around 10:30 p.m. and parked the car behind Jackson's house. Both McCaleb and Johnson drove behind Davis, but parked their car on the street and walked to the back of Jackson's house.

Jackson, McCaleb, and Johnson exchanged unpleasantries. Both McCaleb and Jackson walked back towards their respective cars. Jackson testified that he went to his car to retrieve a gun from the glove box because he feared an attack from McCaleb and Johnson. Jackson attempted to keep the gun hidden.

Jackson testified that he pushed McCaleb away from another female resident of his home because it appeared as though McCaleb was going to strike her. Jackson stated that McCaleb then angrily went back to his car and appeared to have retrieved something. Jackson then saw McCaleb "look me dead in the eye, comin' directly at me fast." Jackson testified that he told McCaleb not to "walk up on me," and then shot McCaleb because McCaleb was "closing ground."

Jackson called 911 to report the shooting. Jackson admitted to the shooting, but argued that his action was in self-defense. McCaleb died from the gunshot wound.

A jury found Jackson guilty of the lesser included offense of second-degree reckless homicide by use of a dangerous weapon. Jackson moved for a new trial, alleging, among other things, that the trial court erroneously denied admission of evidence of McCaleb's reputation for violence, and that trial counsel was ineffective for providing an inadequate proffer as to McCaleb's reputation for violence. The trial court denied the motion.

Jackson appealed, unsuccessfully. The Court of Appeals upheld the trial court's discretionary decision to exclude evidence of McCaleb's reputation for violence. The Court of Appeals noted that Jackson's trial counsel had moved to admit three prior incidents of assaultive behavior by McCaleb, which occurred in 1995, 2004 and 2008. Jackson admitted that he was unaware of these incidents at the time he shot McCaleb, but argued that evidence of McCaleb's character trait was admissible under Wis. Stat. § 904.04(2) to show "motive, opportunity, intent and the absence of mistake or accident."

Citing McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), the Court of Appeals explained that "[w]hen the defendant seeks to introduce such evidence to establish his state of mind at the time of the affray, it must be shown that he knew of such violent acts of the victim prior to the affray."

Jackson claims that this application of McMorris precludes him from fully presenting his defense. 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:

2010AP1684 Siegler v. Siegler

2011AP2435-CR State v. Steiskal

2009AP1138-CRMN State v. Lonas
2011AP192 NCR Corp. v. Transport Ins. Co.
2011AP2157-CR State v. Picotte
2011AP2771-CR State v. Schmidt
2012AP278 Deleon v. Cir. Ct. Brown Co.

2010AP2445/2011AP186 Sandberg v. Donahue
2011AP881 Griswold v. Town of Cross Plains
2011AP2111-12-CR  State v. Hogan
2011AP2169 State v. Ali
2012AP23 Dane Co. v. Raphael M.
2012AP1399-W Franklin v. Pugh
2012AP2389-W Locke v. Baenen

2011AP2924-CR State v. Hinshaw

2011AP1890-CR State v. Trotter
2011AP2910-CR State v. MacKay
2012AP664-CRNM State v. Karasti

La Crosse
2012AP2004 La Crosse Co. DHS v. Kristle S.

2011AP1483 Alwes v. Town of Norrie

2011AP880-CR/2011AP1640-44-CR  State v. Lucht

2011AP1379-CR State v. Williams
2011AP1729-30-CR  State. V. Carter
2011AP2050 State v. Boose
2011AP2063-CR State v. Madison
2011AP2069 Blunt v. Smith
2011AP2086 Lee v. DOR
2011AP2119-CR State v. Felton
2011AP2297 State v. Campbell
2011AP2547 State v. Elim
2011AP2587-CR State v. Schmidt
2011AP2898-CR State v. Harris
2012AP1273-W Allen v. Pollard
2012AP1538-41 State v. Amanda G.
2012AP2702-W Singh v. Cir. Ct. Milw. Co.

2011AP1928/2012AP73-CR State v. Wheaton

2012AP266 State v. Roberts

2012AP728-CR State v. Jacobs

2011AP1260-61 State v. London

2011AP2428-CR State v. Rogers
2012AP1569-W McAtee v. Foster
2012AP2113-W Tran v. Cir. Ct. Racine Co.

2011AP1217-CR State v. Pergande
2012AP198-W Robinson v. Pollard

2011AP2857 State v. Thunder

2011AP2502-CR State v. Wallace - Justice David T. Prosser, Jr. dissents.

St. Croix
2011AP2497-CR State v. Warren

2011AP2162-CR State v. Pruett

2011AP1539-CR State v. Madison

2011AP2191-CR State v. Dillon
2012AP104 Andersen v. State Collection Serv. - Justice David T. Prosser, Jr. did not participate.

2011AP2281 Hubbard v. Schwarz
2012AP313-CRNM State v. Polsin

Tom Sheehan
Court Information Officer
(608) 261-6640

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