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Wisconsin Supreme Court accepts three new cases

Madison, Wisconsin - April 15, 2013

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. The Court of Appeals' opinion for the newly accepted cases are hyperlinked.

2010AP3016-CR State v. Subdiaz-Osorio
This reckless homicide case examines two constitutional issues. One issue is whether police, without obtaining a warrant, can legally use the global position system (GPS) signal of a personal smartphone to track a suspect in real-time. The other issue concerns the admissibility of defendant Nicolas Subdiaz-Osorio's statements obtained during his custodial interrogation after he made the following statement: "How can I do [sic] to get an attorney here because I don't have enough to afford one"? Subdiaz-Osorio contends the trial court erred by denying his motion to suppress certain evidence related to these issues. Without deciding the constitutional questions, the Court of Appeals determined any error was harmless, and it affirmed the circuit court decisions.

Some background: On Feb. 8, 2009, police found Subdiaz-Osorio's brother, Marcos, deceased in a bedroom in the trailer Marcos shared with Subdiaz-Osorio in Kenosha County. Marcos had been battered and stabbed. An autopsy determined that Marcos died of a stab wound to the head.

An eyewitness, Lanita Mintz, saw Subdiaz-Osorio argue with Marcos in Subdiaz-Osorio's bedroom on Feb. 7, 2009. Marcos hit Subdiaz-Osorio in the mouth, pushing in his front teeth and knocking him backwards. Subdiaz-Osorio then retrieved two knives from the closet and stabbed Marcos with both knives, once in the chest and once under the eye. After Marcos fell to the floor, Subdiaz-Osorio kicked and punched him repeatedly, ignoring Mintz's pleas to stop.

The next morning, Marcos was found dead. Subdiaz-Osorio's girlfriend contacted the police and reported that Subdiaz-Osorio had stabbed Marcos. She also told police that Subdiaz-Osorio had fled in her silver Saturn station wagon and might possibly be heading to Mexico because he had family there. The girlfriend gave police the license number and title for her car and Subdiaz-Osorio's cell phone number.

Early on the afternoon of Feb. 8, 2009, police sent out a national bulletin to apprehend Subdiaz-Osorio on both the state's Crime Information Bureau and the National Crime Information Center Internet networks. That same day, an agent from the Wisconsin Department of Justice, Division of Criminal Investigation requested call record details and GPS location information from Subdiaz-Osorio's cell phone provider. After having the agent fill out forms for such a request, the cell phone provider agreed to provide the requested information.

Police used the information to track Subdiaz-Osorio down on Interstate 55 in Arkansas, where he was taken into custody. Two detectives and one officer from Kenosha County travelled to Arkansas and interviewed Subdiaz-Osorio in jail. The officer read Subdiaz-Osorio the Miranda warnings [Miranda v. Arizona, 384 U.S. 436 (1966)] and waiver in Spanish and provided Subdiaz-Osorio with the card bearing the Spanish translation of those warnings for him to read along.

Subdiaz-Osorio and the officer signed and dated the waiver form. After Subdiaz-Osorio agreed to be interviewed both orally and in writing, police engaged him in an audio and video recorded interview that lasted less than an hour. Subdiaz-Osorio agreed to speak without an attorney present. Police removed Subdiaz-Osorio's handcuffs and gave him a soda. Subdiaz-Osorio asked the officer whether they would be taking him back to Kenosha. The officer answered that he would first have to appear before a judge in Arkansas who would make that determination. Subdiaz-Osorio asked: "How can I do [sic] to get an attorney here because I don't have enough to afford for one?" The officer said the state of Arkansas would appoint a lawyer for the hearing. The interview then continued and Subdiaz-Osorio confessed within the hour.

The state charged Subdiaz-Osorio with first-degree intentional homicide; he later pled guilty to first-degree reckless homicide.

Subdiaz-Osorio moved to suppress certain information based upon: (1) the alleged illegal "search" of his cell phone that resulted in his arrest and the subsequent inculpatory statements in Arkansas; and (2) an alleged Miranda violation preceding his confession. From Kenosha County.

2011AP1045 Nowell v. City of Wausau
This case examines whether circuit court review of municipal decisions to not renew an alcohol license under Wis. Stats. § 125.12(2)(d) is pursuant to certiorari or a de novo hearing.

Under certiorari review, the circuit court's review is limited in scope. The record of the municipal proceeding is considered by the circuit court, and the circuit court will generally not overturn the municipality's decision if there was a reasonable basis for it. By contrast, a de novo hearing is conducted as if the original hearing had not taken place, and licensees or residents are not limited in the type of evidence presented to the municipality. As a result, the record at the municipal hearing may differ substantially from that at a hearing before the circuit court, and the circuit court renders a decision independent from the municipality's decision. In this case, the circuit court employed certiorari review, but the Court of Appeals mandated a de novo hearing.

Some background: On May 25, 2010, the city of Wausau notified Thomas D. Nowell and Suporn Nowell, doing business as "IC Willy's, LLC," that the city intended not to renew the bar's combined intoxicating liquor and fermented malt beverage license the following month.

As grounds for this decision the notice cited 51 police calls to the premises since October of 2009. Fourteen calls were about noise complaints. The notice also cited an earlier 15-day suspension for a "Girls Gone Wild" event, as well as multiple citations for disturbing the peace and allowing minors to be on the premises.

In June 2010 the city's public health and safety committee hearing held a hearing at IC Willy's request. The committee recommended non-renewal of the license after determining that IC Willy's had violated § 125.12(2)(ag)1. and 2. The city accepted the committee's recommendation.

IC Willy's sought judicial review and demanded that the circuit court independently determine if the bar was entitled to license renewal. The circuit court concluded the scope of review under § 125.12(2)(d) was limited to matters reviewable by certiorari. The circuit court concluded the city kept within its jurisdiction, acted according to law, did not act arbitrarily, and based its decision on the evidence before it. IC Willy's appealed. The Court of Appeals reversed, concluding that the circuit court erroneously interpreted § 125.12(2)(d) to require certiorari review. It remanded with directions that the circuit court conduct any additional hearings needed to exercise its sound discretion on the renewal of IC Willy's license.

The Court of Appeals noted that liquor and beverage license renewals are governed by § 125.12(3), which permits local authorities to refuse to renew a license for various reasons, provided the municipality has given the licensee notice and the opportunity for a hearing. The statute sets forth the manner of the hearing before the governing municipal body and says that judicial review "shall be provided for in sub.(2)(d)."

The Court of Appeals said paragraph (2)(d) unambiguously states that on review the court must use the same procedures as in civil actions, but it said the practices applicable to ordinary civil actions are not applicable to writs of certiorari. See State ex rel. Casper v. Board of Trustees, 30 Wis. 2d 170, 176, 140 N.W.2d 301 (1966). The Court of Appeals also said certiorari statutes usually include some provision specifying the manner in which return of the inferior tribunal's record is to be made, and there is no such provision in § 125.12(2)(d). Thus, the Court of Appeals reasoned paragraph (2)(d) requires a circuit court to independently determine whether a licensee is entitled to renewal.

The Court of Appeals said its conclusion that § 125.12(2)(d) provides a right to a de novo hearing is "a substantial departure from ordinary judicial review of a municipality's exercise of police power." The Court of Appeals remanded with directions that the circuit court conduct any additional hearings needed to exercise its sound discretion on the renewal of IC Willy's license.

The city argues the Court of Appeals' decision usurps municipalities' prerogative in the exercise of their police powers. It says the statutory mandate to prepare findings of fact, conclusions of law, and a recommendation for revocation, suspension or renewal hearings held before committees under § 125.12(2)(d)3. becomes meaningless if the licensees need merely seek de novo hearings by the circuit court under § 125.12(2)(d).

In an amicus brief, the League of Municipalities says the Court of Appeals' decision is contrary to well-established rules of statutory procedure and is not supported by legislative history, judicial history, or sound judicial policy. From Marathon County.

2010AP1639-CR State v. Magett
This case involves the criminal defense of not guilty by reason of mental disease or defect (NGI). When a defendant asserts an NGI defense, the trial ordinarily has two phases: (1) a guilt phase to determine whether the defendant committed the crime charged, and (2) a mental responsibility phase to determine if the defendant should be held not responsible because of a mental disease or defect. The state bears the burden of persuasion on the first phase, but the defendant bears the burden of persuasion on the second phase.

This case examines whether a court may summarily refuse to hold the second phase if the trial court determines that the defendant will not present sufficient evidence to create a jury question. The Supreme Court is expected to determine whether the circuit court acted properly in refusing to conduct the second phase of the NGI trial and whether, as the Court of Appeals determined, any error in not holding the second phase was harmless.

Some background: Erick O. Magett was convicted of battery by a prisoner. Magett claimed in defense that he should not be responsible for punching corrections officers who entered his prison cell because his mental disease or defect had prevented him from knowing what he was doing when he punched them. He asserted that he had blacked out at the time the officers had entered the cell to remove him, and the next thing he remembered was being locked up.

The altercation occurred when a prison guard "extraction team" entered Magett's cell because he had covered a closed-circuit camera in violation of prison rules. Magett indicated he covered the camera because his requests for medical care for a fractured pelvis and back injury were being ignored and he was not receiving meals. Magett was under special restrictions at the time of the altercation because a letter he sent to the warden was viewed as a threat. The letter stated that someone would "end up getting hurt" if he didn't receive adequate medical care.

The restrictions provided that guards would not bring meals into Magett's cell unless he first sat cross-legged on the floor at the back of his cell, facing the rear wall with his hands clasped behind his head. Magett said he could not assume that position due to his injuries. As a result, no meals were provided to him for two days.

Before the extraction team entered the cell, Magett had refused to place his hands through an opening in the cell door so he could be handcuffed. A number of the officers slipped because Magett had smeared hand cream on the floor. After a brief altercation, the officers were able to restrain Magett and remove him from the cell. Despite having worn a face shield, one of the guards suffered a cut under his chin, apparently from one of Magett's punches.

In response to the state's charges, Magett entered an NGI plea. While the jury was deliberating whether Magett was guilty at the end of the first phase of the trial, the court and Magett's counsel discussed how the second phase would proceed. The jury came back with a guilty verdict shortly thereafter.

At that point, the court asked Magett's counsel what evidence she intended to present in support of Magett's NGI defense. Counsel informed the court that she did not intend to call either the court-appointed medical expert or the defense's own medical expert. She stated that Magett would again take the stand and testify that he had "blacked out" and that "he was out of it" during a part of the altercation. Counsel further stated that she expected to show the videotape of the incident, which the state had already played for the jury during the first phase of the trial.

After the discussion with counsel, the trial court indicated that it would not proceed to the second phase. It concluded that without any medical expert testimony and with only the evidence described by defense counsel, no reasonable jury could find that Magett could meet his burden of persuasion on the NGI defense. Since Magett could not meet his burden, the circuit court proceeded to enter a judgment of conviction based on the jury's guilty verdict in the first phase.

Magett appealed, arguing that the circuit court did not have the authority to refuse to hold the mental responsibility phase of the NGI trial, and that its error in denying Magett that part of the trial was not harmless.

The Court of Appeals affirmed, choosing not to decide whether the circuit court had acted properly in refusing to hold the second phase of the trial. It determined that even if that refusal had been improper, the error was harmless because the evidence cited by Magett's attorney would not have met the legal standard for an NGI defense. From Grant 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:

2012AP49-CR State v. Vollbrecht

2011AP1103-CR State v. Kirchstein

2011AP44 State v. Ware
2011AP2407-CR thru 2011AP2409-CR State v. Murphy
2011AP2604 Gillis v. Miesner
2012AP133 Hoague v. Kraft Foods - Justice Patience Drake Roggensack and Justice Annette Kingsland Ziegler dissent.
2012AP2608-W Adeyanju v. COA, Dist. IV

Eau Claire
2012AP107-CR State v. Bullock

2011AP2891 Florence Co. v. Renneke

2010AP1253 State v. Holm

2012AP1183-W Thompson v. Meisner

2012AP339-CR State v. Baker

2012AP176-CR State v. Paulson

2010AP2947-CR State v. Johnson
2011AP1964 State v. Fields
2011AP1967-CR State v. Crittendon
2011AP2018 OneWest Bank v. Groysman
2011AP2410-CR State v. Richardson
2011AP2547-CR State v. Diaz - Justice Patience Drake Roggensack did not participate.
2011AP2952-CR State v. Prescott
2012AP42-CR State v. Tallie
2012AP201-CR State v. Lee
2012AP235-CR State v. Ellis
2012AP352-CR State v. Harris
2012AP414-CR State v. Doe
2012AP670-CRNM State v. Jackson
2012AP1957-W Westmoreland v. Pollard
2012AP2741-W Robertson v. Baenen
2013AP4-W Aaron B. v. Cir. Ct. Milw. Co.
2013AP115-W Bach v. COA

2011AP2557-CR State v. Hicks

2011AP1797 Sabol v. LIRC

2011AP2886-CR State v. Kyle

2010AP1598-CR State v. Hudson - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2012AP1418-CR State v. Nelson

2010AP429 State v. Devries

2011AP1264-CR State v. Gardner
2011AP2534 Est. of Sheppard v. Specht
2012AP2393-W Key v. Pollard - Chief Justice Shirley S. Abrahamson dissents.

Tom Sheehan
Court Information Officer
(608) 261-6640

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