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Wisconsin Supreme Court accepts nine new cases

Madison, Wisconsin - April 15, 2014

The Wisconsin Supreme Court has voted to accept nine new cases and acted to deny review in a number of other cases. The case numbers, issues, and county of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2011AP1803-CR State v. Wilson
This case examines whether a man convicted of homicide more than 20 years ago was denied a meaningful opportunity to present a complete defense because the circuit court refused to allow him to introduce evidence that someone else killed the victim.

The Supreme Court reviews a 2013 Court of Appeals' decision summarily reversing General Grant Wilson's conviction on one count of first-degree intentional homicide and one count of attempted first-degree intentional homicide.

Some background: "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" See Crane, 476 U.S. at 690 (citation omitted). This includes "the right to present witnesses in [one's] defense." State v. Denny, 120 Wis. 2d 614, 622, 357 N.W.2d 12 (Ct. App. 1984). "[A]n essential component of procedural fairness is an opportunity to be heard." Crane, 476 U.S. at 690. Evidence that a person other than the defendant committed the charged crime is relevant to the issues being tried, and thus admissible, "as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances." Denny, 120 Wis. 2d at 624. Wilson was convicted of the shooting death of Evania Maric in 1993. In 2010, the Court of Appeals reinstated his right to a direct appeal, ruling that Wilson received ineffective assistance of appellate counsel.

Maric was repeatedly shot with two different guns while she was seated in a parked car in front of an illegal "after hours" club around 5 a.m. on April 21, 1993. Wilson had been romantically involved with Maric. Willie Friend, who was dating Maric, was with her in the car when she was shot. Friend fled without being injured. Friend told police that Wilson opened fire on both of them, killing Maric. Friend was the only person to link Wilson directly to the crime. Wilson denied killing Maric and said he was at home asleep when the murder occurred.

At trial, Wilson's lawyer, Peter Kovac, repeatedly tried to introduce evidence implicating Friend and/or his brother Larnell Friend, who operated the "after hours" club where Maric was killed. Kovac presented a witness named Mary Lee Larson, a friend of Maric's, who had known her since junior high school. Larson testified that in the two months before her death, Maric never said she was afraid of Wilson.

When Kovac asked Larson if she knew whether or not Maric was afraid of Friend, the prosecutor objected and the trial court sustained her objection. Defense counsel then made an offer of proof, the crux of which was that within two weeks of Maric's death, Friend had threatened to kill her if she did not stay "in check" and had slapped her in front of several witnesses. Kovac argued the evidence was relevant because the theory of defense was that it was Friend who was responsible for Maric's death. (Apparently the defense theory was not that Friend personally shot Maric but that he lured her to a place where one or more other people, acting on his instructions, would shoot her.) The record indicates that at the time of her death Maric was pregnant with Friend's child and the defense posited that Friend wanted to avoid a paternity action and child support award.

Defense counsel also advised the court that another witness, Barbara Lange, could provide similar testimony about Friend threatening Maric. The court denied Kovac's request to present the proposed testimony from Larson and Lange.

The jury reached an impasse after the first day of deliberations but subsequently convicted Wilson of the crimes. He was sentenced to life imprisonment with parole eligibility after 20 years on the homicide count and was sentenced to a consecutive term of 20 years on the attempted homicide count.

Wilson filed a motion seeking sentence modification. He also argued he should be granted a new trial because the circuit court refused to allow him to introduce evidence pointing to a third party perpetrator. The trial court denied that motion without a hearing in 1996. Wilson did not appeal from that order.

In 2010, Wilson, now represented by the State Public Defender's Office, filed a habeas petition (apparently arguing ineffective assistance of appellate counsel under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992)). In September 2010 the Court of Appeals ruled that Wilson had received ineffective assistance of appellate counsel, and it reinstated his right to a direct appeal. Wilson then filed a Rule 809.30 motion in early 2011. The circuit court denied the motion in July 2011, concluding that the evidence Wilson claimed trial counsel should have presented did not sufficiently satisfy the Denny criteria. The Court of Appeals disagreed and reversed the judgment of conviction. The state appealed to the Supreme Court, asking:

1. Did Wilson satisfy the opportunity requirement for presenting third-party-perpetrator evidence under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), with respect to Willie Friend? 2. If the answer to the first question is "yes," was the error in excluding the Denny evidence harmless beyond a reasonable doubt?

The state says even without the motive evidence Wilson wanted to introduce, the jury knew Friend was at the scene and had a different motive to get rid of Maric. However, the state says the theory that Friend killed her was contrary to the physical evidence. Wilson says the test set forth in Denny for determining whether third-party perpetrator evidence should be admitted in a trial court has been applied numerous times over the past three decades and no reported case has ever questioned the legal viability of the Denny test. From Milwaukee County.

2012AP641 Augsburger v. Homestead Mutual Insurance Co.
This case involves a dispute over liability for a dog bite. The Supreme Court examines whether a man who owned the property where the dog bite occurred could be held liable, even though he did not live on the property, and was not there when the dog bite occurred. The central legal questions to be considered by the Supreme Court are whether the homeowner "harbored" the dogs pursuant to Wis. Stat. § 174.001(5), and whether he is considered an owner of the dogs for purposes of Wis. Stat. § 174.02.

Some background: George Kontos purchased a home in Larsen, Wis. for the dual purpose of living there after he retired and providing a place for his daughter, Janet Veith and her husband and daughter to live that was closer to Kontos and his ill wife. The Veiths did not pay any rent. Kontos lived in another home several miles away but visited the Veiths on multiple occasions.

At the time of the alleged dog attack on Julie Augsburger, Kontos knew there were at least five dogs living on the property. In her deposition, Augsburger said that on at least one occasion prior to the alleged attack, she had been at the property when she observed Kontos discipline the dogs when they were playing roughly. Kontos said this "discipline" amounted to his yelling at the dogs to "knock it off and shut up." Kontos and the Veiths agreed that Kontos could have told the Veiths they could not keep the dogs at the property.

On June 21, 2008, Augsburger went to the property to visit Veith, whom she had known for many years. The Veith daughter told Augsburger that Janet was in the barn and helped her open the gate to a fenced in area leading to the barn. Augsburger said that when she entered the fenced area there were no dogs present, but when she walked toward the barn, several of the dogs attacked her, leading to her claim of injury.

Augsburger sued Kontos and the Veiths. Kontos and Augsburger both moved for summary judgment on the issue of whether Kontos "harbored" the dogs. The circuit court granted summary judgment in favor of Augsburger

Kontos appealed, and the Court of Appeals, with Judge Paul F. Reilly dissenting, affirmed. The Court of Appeals noted that § 174.02 subjects an "owner" of a dog to strict liability for injuries it causes. "Owner" is broadly defined in § 174.001(5) to mean "any person who owns, harbors or keeps a dog." The court said it was undisputed that Kontos did not "own" or "keep" the dogs and the dispute resolved around whether he "harbored" the dogs at the time of the alleged attack.

The Court of Appeals reasoned that since Kontos provided shelter and lodging for the dogs just as surely as he did for the Veiths, he harbored the dogs and was a statutory owner of them. The Court of Appeals said its conclusion was consistent with a recent decision from the Minnesota Supreme Court. In Anderson v. Christopherson, 816 N.W.2d 626 (Minn. 2012), the court concluded that liability as a harborer of a dog was not precluded by the fact that the defendant who owned the home where the dog was receiving shelter and lodging did not live at that location.

The Court of Appeals said although the legislature has not defined "harbor" or "keep," the Wisconsin Supreme Court clarified those terms in Pawlowski v. American Family Mut. Ins. Co., 2009 WI 105, ¶15, 322 Wis. 2d 21, 777 N.W.2d 67.

In that case a homeowner allowed an acquaintance of her daughter to live at her home with two dogs. After having lived in the home for several months, the acquaintance opened the door to the home and his unleashed dogs bolted out. One of the dogs attacked a person who was walking nearby. The plaintiff sued. The homeowner claimed she was not a statutory owner because she did not have dominion or control over the dog when the attack occurred.

In Pawlowski, the Supreme Court held that the homeowner had been a harborer of the dog at the time of the attack and was subject to strict liability because "[s]he allowed the dog to live in her home for several months, affording the dog shelter and lodging."

The Court of Appeals also rejected Kontos' argument that even if he was a harborer of the dogs, public policy considerations should preclude his liability. In his dissent, Reilly said that in his opinion both the circuit court and the majority erred in finding that Kontos was the statutory "owner" of the dogs. Reilly said the majority's definition of "owner" stretches the interpretation of Ch. 174, Stats.

Kontos says the critical difference between this case and Pawlowski, on which the majority relied so heavily, is that the homeowner in Pawlowski lived in the premises where the dogs were housed.

Augsburger says the Legislature set the policy for dog bite liability when it enacted § 174.02, and the Court of Appeals' decision merely applies well settled Wisconsin law to the facts of this case. Augsburger says the Supreme Court also recently considered similar issues in Pawlowski. From Winnebago County.

2012AP1593-CR State v. Tullberg
The sole issue in this case is whether exigent circumstances justified a warrantless blood draw from a man police suspected of driving drunk and being involved in a fatal accident. Exigent circumstances may exist when a police officer must take immediate action to effectively make an arrest, search or seizure for which probable cause exists, and thus may do so without first obtaining a warrant.

Some background: A jury found Michael R. Tullberg guilty of homicide by intoxicated use of a motor vehicle, homicide by use of a vehicle with a prohibited alcohol concentration, hit-and-run, causing injury by the operation of a vehicle while under the influence of an intoxicant, causing injury while operating a vehicle with a prohibited alcohol concentration, and resisting or obstructing an officer.

The counts arose out of a one-truck rollover accident in which one man died and two other passengers were injured. The theory of defense was that one of the passengers was driving the truck.

A sheriff's deputy who arrived at the scene five or 10 minutes after the accident saw the pickup truck resting on the driver's side and the body of the dead man pinned under the truck bed. After another five or 10 minutes had passed, an emergency crew and the defendant's father arrived. The father told the deputy the truck belonged to his son and that both his son and a female passenger were on their way to the hospital and that there was a third person they could not locate.

The deputy went to the hospital to investigate the circumstances surrounding the crash. When questioning the defendant, the deputy noticed the defendant's eyes were red and glassy, his speech was slurred, and he smelled of intoxicants. Both the defendant and the female passenger indicated the man had who died had been driving the vehicle, the defendant was in the passenger seat, and the female passenger was in the box portion of the truck. The defendant reported when the truck left the road, he had been wearing a seat belt and the passenger's side air bag deployed.

The deputy noted the defendant had injuries consistent with the deployed airbag, including singed hair on his arm and a distinct odor of airbag residue on his body and clothing. In conversations with an officer still at the accident scene, the deputy learned only the driver's side airbag had deployed. Based on observations of the vehicle in relation to the position of the dead man's body, officers concluded it was unlikely the man who died in the accident had been driving. Based on information gathered from both the accident scene and the hospital, the deputy believed the defendant had been drinking and driving.

By the time the deputy had garnered sufficient information to establish probable cause for a blood draw, he estimated that a little over two and 1/2 hours had passed since the time of the accident. Medical staff indicated the defendant needed to have a CT scan very soon and they were "real persistent" about this. The deputy testified at the suppression hearing that since he did not want to interfere with the defendant's medical care and he was aware of the diminishing timeframe, he believed he had to make an immediate decision to have the defendant's blood drawn.

Tullberg argues the U.S. Supreme Court, in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013) held that the natural metabolization of alcohol in the blood stream does not present a per se exigency justifying an exception to the Fourth Amendment's warrant requirement for non-consensual blood testing in all drunk driving cases. The Court of Appeals cited McNeely and concluded the totality of the circumstances here supported a finding of exigency.

Tullberg moved to suppress the results of the blood draw, arguing nothing that law enforcement officers learned at the hospital indicated he was impaired by alcohol or was driving at the time the accident occurred.

The Court of Appeals disagreed, saying based on the information from the accident scene and the hospital, the deputy could reasonably believe the defendant had been the driver and had been drinking. The Court of Appeals cited McNeely and concluded the totality of the circumstances here supported a finding of exigency. From Shawano County.

2012AP2490 Wis. Fed. of Nurses and Health Professionals v. Milwaukee Co.
This case involves a dispute over whether union members had a vested benefit contract that required the county to reimburse their Medicare Part B premiums when they retire from county employment, even though they were not yet retired when the county eliminated that benefit.

The Milwaukee County Circuit Court granted summary judgment in favor of plaintiff unions, the Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO and Association of Milwaukee County Attorneys. The circuit court ruled that the unions' members had a vested benefit contract that required the county to reimburse their Medicare Part B premiums when the members retire from county employment, even though they were not yet retired when the county eliminated that benefit.

The Court of Appeals' reversed, and the unions appealed. The county and the unions present different interpretations of county ordinances and precedent cases in pressing their cases before the Supreme Court.

Some background: Since at least 1972, Milwaukee County has provided coverage under its employee group health insurance program to retired county employees who had been hired prior to certain specified dates and who retired with 15 or more years of service credits in the Milwaukee County Employees Retirement System (MCERS). Eligible county employees and their spouses would receive health insurance coverage at no premium cost. This insurance coverage included the county's reimbursement of the premium cost of coverage under Part B of Medicare. This retirement benefit was set forth in General Ordinance § 17.14(7), portions of which have been amended, renumbered or reworded at times over the years.

In 2010, § 17.14(7)(ee) was amended to remove the county's liability for Medicare Part B premiums for some county employees. The 2010 revision provided that § (ee) would not apply to members not represented by a collective bargaining unit who retired and began receiving benefits from the county employees retirement system after April 1, 2011. In 2011, the Medicare Part B premium provision was changed again. After the 2011 change, the county's liability for Medicare Part B premiums ended with respect to members of the retirement system who were not represented by a union and who retired and began receiving benefits after April 1, 2011; members of the retirement system who were represented by the Association of Milwaukee County Attorneys who retired and began receiving benefits after Dec. 30, 2011; and members of the retirement system who were represented by the Federation of Nurses and Health Professionals who retired and began receiving benefits after Dec. 31, 2012.

The county took the position that association members had to retire no later than Dec. 31, 2011, and federation members had to retire no later than Dec. 31, 2012, in order for the county to pay their Medicare Part B premiums.

The two unions filed a complaint seeking injunctive and declaratory relief. They alleged that the elimination of Medicare Part B reimbursements for bargaining unit members who did not retire before the deadlines in the 2011 ordinance constituted a material breach of their members' vested benefit contracts and impaired those contracts. The parties filed cross-motions for summary judgment. The circuit court, relying on Welter v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997) granted the plaintiff's motion for summary judgment in its entirety.

The circuit court declared that the elimination of Medicare Part B reimbursement constituted a material breach of the affected employees' rights under their vested benefit contracts and was therefore invalid and ineffective as to those employees. The circuit court enjoined the county from refusing to reimburse any effected employee's post-retirement Medicare Part B premiums, and it ordered specific performance of that obligation. The county appealed. The Court of Appeals, with Judge Joan F. Kessler dissenting, reversed and remanded.

The Court of Appeals said the vested benefit at issue in this case was the eligibility to have the county reimburse a retiree's Medicare Part B premium. It said under Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766, this eligibility does not become an entitlement until all prerequisites are met, i.e. until the employee has actually retired. The Court of Appeals agreed that once eligibility matures into entitlement, a benefit may not be retroactively modified or eliminated.

The unions say employment contracts in Wisconsin, unless otherwise indicated, are bilateral, involving an exchange of enforceable promises of future performance. See Ferraro v. Koelsch, 124 Wis. 2d 154, 164, 368 N.W.2d 666 (1985). They argue rights and obligations under a bilateral contract are enforceable and vest immediately upon execution, subject to the occurrence or excuse of conditions precedent to performance. The unions say an obligation under a bilateral contract may be made conditional on the occurrence of a particular event, and a condition precedent under a contract delays the enforceability of the contract until the condition precedent has taken place. Thus, the unions argue that actually retiring was simply a condition precedent to union members being entitled to receive reimbursement for their Medicare Part B premiums.

The county argues, in essence, that the circuit court got it wrong in applying Welter and the Court of Appeals got it right in applying Loth. The county says the Court of Appeals appropriately concluded that the vested right at issue in this case is the right to eligibility for Medicare Part B premium payments made after completing all eligibility requirements, including actual retirement. The county reasons that because the Medicare Part B premium payment benefit was conditioned on retirement, the benefit was neither guaranteed nor vested until retirement had actually occurred. From Milwaukee County.

2011AP1673-CR State v. Foster
This case examines several issues arising from a drunk driving arrest, including whether a warrantless blood draw under the circumstances presented here is constitutional in light of Missouri v. McNeely, 569 U.S., 2013 WL 1628934 (2013). In that case, the Supreme Court recently held that whether a warrantless blood draw is constitutional depends on an analysis of the exigencies under the particular facts of each case.

Some background: A Tomah police officer pulled Cassius A. Foster's vehicle over at approximately 11:55 p.m. on March 6, 2009, after observing Foster's Pontiac traveling more than 50 miles per hour in a 30-mile-per-hour zone. When the officer reached Foster's vehicle, Foster had difficulty getting his driver's license out of his wallet and told the officer that he had been upset with his female passenger. The officer smelled intoxicants emanating from the vehicle and observed that Foster had bloodshot, glassy eyes and slurred speech. After administering field sobriety tests, the officer performed a preliminary breath test, which showed a reading of .103 on a weak breath. The officer transported Foster to the Tomah Memorial Hospital, where the officer had medical personnel perform a blood draw despite Foster's refusal to consent. The blood draw showed a blood alcohol concentration (BAC) of .112.

The state charged Foster with driving under the influence (sixth offense), given Foster's three prior alcohol-related convictions in Oklahoma and two prior alcohol-related convictions in Texas.

Foster's counsel moved to suppress evidence obtained following the stop of Foster's vehicle, but the motion was denied as untimely. The case was tried to a jury, which found Foster guilty. The circuit court withheld sentence and placed Foster on probation for three years, with one year of conditional jail time.

Foster's post-conviction counsel filed a post-conviction motion alleging that trial counsel had been ineffective for not collaterally attacking the prior Oklahoma convictions on the ground that Foster had not properly waived his right to counsel in those cases. Foster testified at the hearing that he had not knowingly and voluntarily waived his right to counsel. In response, the state introduced certified copies of forms entitled "Notice of Rights," on which Foster had clearly indicated that he was waiving his right to counsel. Given these waiver of rights forms, the circuit court denied Foster's post-conviction motion.

Foster's post-conviction/appellate counsel then filed a no-merit report in the Court of Appeals, and Foster filed a response. Given Foster's stipulation to one of the elements, the testimony of the arresting officer, and the crime lab analyst, the Court of Appeals concluded that the evidence had been sufficient, and it dismissed other arguments raised by Foster.

Subsequent to the Court of Appeals' decision, the United States Supreme Court issued its decision in Missouri v. McNeely, which held police must obtain a warrant for a blood draw unless the state can make a particularized showing of exigency.

In addition, Foster raises the following issues:

  • Whether there had been an intelligent, knowing, and voluntary waiver of counsel [in Cassius Foster's Oklahoma cases]?
  • Whether the waiver of rights form [used in the Oklahoma cases to waive Foster's right to counsel] was valid in demonstrating Foster's understanding of the dangers and disadvantages of self-representation?
  • Whether prior convictions should have been admissible to enhance Foster's sentence?

From Monroe County.

2012AP523-CR State v. Kennedy
This case examines constitutional issues arising from the arrest and conviction of Alvernest Floyd Kennedy on charges of homicide by intoxicated use of a motor vehicle. The Supreme Court reviews whether field sobriety tests were necessary to establish probable cause to arrest Kennedy for OWI, and whether evidence obtained as a result of the warrantless blood draw was erroneously admitted in violation of Kennedy's right to be free from unreasonable searches and seizures.

Some background: Kennedy was driving a car that struck and killed a female pedestrian he said ran out in front of his car on Fond du Lac Avenue in Milwaukee at about 12:15 a.m. on Aug. 3, 2006.

A nearby Milwaukee Police officer was dispatched to the scene and arrived in less than a minute. She observed a white Chevy Impala facing the wrong way in the eastbound lane of traffic at the end of a long set of skid marks. The car's front end had been damaged, and there was blood on the passenger side of the vehicle. The officer found a woman lying under the passenger side of the vehicle who was still alive, but had suffered severe injuries.

After calling for an ambulance, the officer asked the people standing nearby what had happened. Kennedy handed his driver's license to the officer and advised her that he had been driving the car. There had also been a passenger in Kennedy's vehicle, a friend by the name of Anthony Jones. The officer told Kennedy to stand on the sidewalk until the ambulance came.

Approximately 15 minutes passed from the initial dispatch call until the officer was able to have a more in-depth conversation with Kennedy and Jones. The officer said she noticed Kennedy had glassy and bloodshot eyes, that his speech was slurred, that he was swaying back and forth, and that he smelled of alcohol. Although she believed that Kennedy was intoxicated, the officer did not perform field sobriety tests because her sergeant had arrived and instructed her to take steps to secure the scene.

Two police officers asked Kennedy to sit in the back of a squad car, which he did, although he claims that he did so only due to a show of police authority. Kennedy was not handcuffed and was not told that he was under arrest.

A few minutes later, the victim died. The officer testified that once that had occurred, "it automatically became a blood draw" situation. At 2:07 a.m., the police told Kennedy that he was under arrest. Some of the officers testified that Kennedy was agitated and uncooperative both while he was in the squad car and when the officers took him to a local hospital for a blood draw.

Kennedy initially refused a blood draw. His blood was finally drawn at approximately 3:18 a.m., which was about three hours after the incident. Test results showed a blood alcohol level at that time of 0.216. A state toxicologist testified that Kennedy's blood alcohol level at the time of the collision would have been between 0.246 percent and 0.291 percent. Kennedy filed a motion to suppress all evidence obtained subsequent to his arrest, arguing that the temporary detention had continued for too long and that there was not probable cause to arrest him. The circuit court concluded that the length of the detention was reasonable and found that there was probable cause at the time of arrest.

At trial, the jury found Kennedy guilty of homicide by intoxicated use of a vehicle. The court sentenced Kennedy to 11 years of initial confinement and seven years of extended supervision.

Kennedy raised a host of issues on appeal, two of which are raised before the Supreme Court:

1. Were field sobriety tests necessary to establish probable cause to arrest Kennedy for Operating a Motor Vehicle While Intoxicated (hereinafter "OWI")?
2. Was the evidence obtained as a result of the warrantless blood draw in the instant matter erroneously admitted, in violation of Kennedy's right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, § 11 of the Wisconsin Constitution? The Supreme Court also may consider whether the draw of Kennedy's blood was performed without a warrant and, if so, whether the warrantless blood draw was constitutional under the U.S. Supreme Court's decision in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).

From Milwaukee County.

2012AP1818-CR State v. Ramon G. Gonzalez
This case examines whether ordering a defendant to open his mouth and reveal his platinum teeth to the jury violates the Fifth Amendment right against self-incrimination.

Some background: Fredrick Brown was severely beaten by several of his fellow inmates in the Milwaukee County Jail in September 2006. The state charged Gonzalez and another inmate with battery by a prisoner, as a party to the crime (PTAC). Their cases were tried together in a three-day jury trial.

The state called Brown to testify, but he was a reluctant witness and asserted that he had no memory of Gonzalez being involved in his beating. Brown repeatedly told the court during his testimony that he did not wish to testify.

A supervisor at the jail, Sgt. James Criss, testified that within minutes of the attack Brown stated that one of his attackers was housed in cell 10, where Gonzalez was housed.

Finally, the state presented the testimony of Detective Kenneth Mohr, who investigated the beating after it had occurred. Mohr testified, over the objection of the defense, that Brown told him that two inmates (from cells four and 14) had begun attacking him in his cell after accusing him of stealing a radio.

Brown further told Mohr that when he forced his way out of his cell, an inmate with platinum teeth from cell ten began to participate in the beating. During Mohr's testimony, the state asked him whether Gonzalez had dental work consistent with Brown's description of platinum teeth, and Mohr responded that he believed Gonzalez did have such dental work. The prosecutor then asked Mohr whether he had personally seen Gonzalez's teeth, and Mohr responded in the negative.

At that point the prosecutor asked that Gonzalez be required to show his teeth and dental work to the jury so that Mohr could describe whether he had dental work consistent with Brown's description. After an objection by defense counsel and a sidebar conference, the court overruled the objection and ordered Gonzalez to show his teeth to the jury.

Gonzalez did not testify and the defense did not call any other witnesses. The jury found Gonzalez (as well as the co-defendant) guilty. The court subsequently sentenced Gonzalez to a consecutive term of 2.5 years of initial confinement and 2.5 years of extended supervision. Gonzalez filed a post-conviction motion for a new trial. He again argued that the circuit court's overruling of his objection to the display of his teeth had violated his Fifth Amendment right against self-incrimination and had generally prejudiced him because platinum teeth are commonly associated with drug dealing and gang affiliation. The post-conviction court denied the motion.

The Court of Appeals affirmed, concluding that the compelled display of Gonzalez's teeth "falls squarely within the category of 'real or physical evidence' that is not protected by the Fifth Amendment."

The Court of Appeals also rejected Gonzalez argument that the forced display of his teeth unfairly caused the jury to associate him with drug dealing and gang affiliation (and thereby led the jury to convict him for being a bad person).

Gonzalez's argument in support of review was primarily that the Court of Appeals' opinion on the Fifth Amendment issue is in direct conflict with a 2001 unpublished Court of Appeals' decision in State v. Smith, 2000AP2947-CR.

In Smith, the defendant chose not to testify but still wanted to display his gold teeth to the jury in order to undercut an undercover officer's report of a drug buy, which made no mention of the drug seller having gold teeth. The trial court ruled that if Smith displayed his teeth to the jury, it would be testimonial, he would be waiving his right not to testify, and he would be subject to cross-examination by the state. Smith did not display his teeth and was found guilty. The Court of Appeals affirmed in Smith.

The state's response to Gonzalez's petition argued that the Court of Appeals' decision is consistent with prior decisions of the U.S. Supreme Court and the Wisconsin Court of Appeals. See, e.g., United States v. Hubbell, 530 U.S. 27, 34-35 (2000); Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990); Schmerber v. California, 384 U.S. 757, 764 (1966); State v. Schmidt, 2012 WI App 137, ¶¶6-9, 345 Wis. 2d 326, 825 N.W.2d 521; State v. Hubanks, 173 Wis. 2d 1, 14-16, 20, 496 N.W.2d 96 (Ct. App. 1992).

2012AP2044-CR State v. Dillard
This case examines whether Myron C. Dillard, a defendant in an armed robbery case, may withdraw his plea after discovering that a potential penalty enhancer that was dropped as part of a plea agreement could not have applied to his situation anyway.

Some background: On Dec. 4, 2009, a man entered and sat down in the front passenger seat of a car being driven by a woman. Brandishing a gun, the man instructed the woman not to look at him and to drive around a certain area. He asked her some questions about her personal life and required her to hand over her money. The man ultimately directed the woman to park near some apartments, at which point he exited the vehicle while woman counted to 30 pursuant to the man's direction.

Dillard was arrested for these crimes and charged with one count of armed robbery, as a persistent repeater, and one count of false imprisonment, as a repeater (not a persistent repeater). With the persistent repeater enhancer, the armed robbery count required a sentence of life imprisonment without the possibility of release to extended supervision. Without the persistent repeater enhancer, the armed robbery count carried a maximum sentence of 40 years, 25 years of which could be allocated as initial confinement. The false imprisonment charge, with the repeater enhancement, carried a maximum sentence of 10 years, with a potential seven years of initial confinement.

Although the criminal complaint attached the persistent repeater enhancer to the armed robbery count, it is undisputed that it was improper to do so. The persistent repeater enhancer requires two or more previous convictions that occurred on different dates. Wis. Stat. § 939.62(2m)(b)1. All of Dillard's prior convictions occurred on the same date.

Neither Dillard's counsel, nor the prosecutor, nor the circuit court, however, was aware that the persistent repeater enhancer was a legal impossibility. All thought throughout the proceedings in the circuit court that the enhancer was properly pled.

On the assumption that the persistent repeater enhancer was valid, the state offered a plea deal to Dillard under which he would plead guilty to the armed robbery count in exchange for the state (1) dismissing the persistent repeater enhancer on that count, (2) dismissing outright the false imprisonment count, and (3) recommending a sentence that included eight years of initial confinement. Prior to or at the time of the plea offer, the state also filed a motion seeking to introduce other acts evidence that Dillard had previously engaged in a similar incident that had ultimately included a sexual assault.

Dillard's attorney recommended that he seriously consider accepting the plea offer. Counsel testified later at the post-conviction motion hearing that her recommendation rested in part on the removal of the persistent repeater enhancer, which took the life sentence off the table, and in part on other factors, including the prospect of the state being allowed to introduce the other acts evidence. Dillard accepted the plea offer and pled guilty to the armed robbery count. Although the state made the agreed-upon recommendation for eight years of initial confinement, the circuit court imposed the maximum sentence of 25 years of initial confinement and 15 years of extended supervision.

Dillard filed a post-conviction motion for plea withdrawal. He argued that his plea was unknowing and involuntary because he had been under the impression that if he did not take the plea he was subject to receiving a life sentence without release to extended supervision if found guilty. He also argued that the failure of his trial counsel to advise him regarding the invalidity of the persistent repeater enhancer had constituted ineffective assistance of counsel.

After conducting an evidentiary hearing, the circuit court denied the motion. Relying in part on trial counsel's testimony that she would have recommended accepting the plea offer even if the persistent repeater allegation had never been included in the complaint, the circuit court indicated that Dillard was seeking plea withdrawal simply because the circuit court had imposed a lengthier sentence than had been contemplated in the agreed-upon recommendation.

The Court of Appeals reversed Dillard's conviction and remanded the case to the circuit court for further proceedings.

The state appealed, asking the Supreme Court: Can a defendant demonstrate manifest injustice warranting plea withdrawal where he fully understood the consequences of the charges to which he pleaded, but where (a) the parties later realized that a penalty enhancer dropped as part of the bargain could not apply to the defendant, and (b) the defendant admitted his dissatisfaction with his sentence compelled his motion for plea withdrawal?

Does a defendant demonstrate prejudice [for purposes of an ineffective assistance of counsel claim] based on counsel's failure to recognize that a dropped penalty enhancer could not have applied to him, where other portions of the plea bargain and other factors would have nevertheless compelled the defendant to accept the plea deal? From Winnebago County.

2012AP2784 118th Street Kenosha, LLC v. DOT
This case involves a dispute over the loss of a business's driveway entrance following a road construction project near the intersection of I-94 and state Highway 50 in Kenosha, and whether the business owner's method of attempting to recover damages is the appropriate legal remedy under the circumstances.

Some background: The business at issue, 118th Street Kenosha, LLC, owns a four-store shopping center. Before a state Department of Transportation (DOT) reconstruction project, the property had one driveway entrance to the shopping center from a public road, 118th Avenue, and one driveway entrance from a private road that intersected with 118th Avenue.

After the DOT highway reconstruction project, the property continues to have two driveway entrances, but both are from the private road. One driveway entrance is the previously existing entrance, and the second driveway entrance is a newly created entrance. The entrance from 118th Avenue was eliminated because the DOT rerouted the road section where the entrance to the shopping center was located.

In order to create the new entrance from the private road, the DOT took a temporary easement from the property owner along that road. The legal description of the temporary limited easement states that the easement is "to terminate upon the completion of this project or on the day the highway is open to the traveling public, whichever is later." The DOT recorded an award of damages for the easement in the amount of $21,000.

The property owner challenged the award by filing a notice of appeal with the trial court. See Wis. Stat. § 32.05(11). In the course of the ensuing litigation, the property owner sought damages for not just the temporary limited easement itself, but for the loss of access to 118th Avenue caused by the vacation of that street in front of the property. The property owner hired an appraiser, who estimated that the highway relocation project caused a $427,600 loss in property value.

Before trial, the DOT moved in limine to prohibit the property owner from introducing any evidence that it is entitled to compensation "for any item whatsoever other than the temporary limited easement" acquired to create the new access point into the property from the private road. The property owner opposed the motion, arguing that it should be permitted to introduce evidence of the loss of direct access and proximity to 118th Avenue and the related loss in value to the property.

The trial court granted the DOT's motion in limine. The court prohibited the property owner from introducing evidence related to the property owner's loss of access to 118th Avenue. The trial court stated that this issue is governed by Wis. Stat. § 32.09, "Rules governing determination of just compensation."

The parties then entered into a stipulated judgment which preserved the property owner's right to appeal the trial court's ruling on the motion in limine. The property owner appealed, arguing that the trial court erred in prohibiting it from presenting evidence of the impact that the loss of access and proximity to 118th Avenue had on the fair market value of its commercial property.

In response, the DOT argued that the trial court correctly precluded such evidence because the taking of the temporary easement to create the new private road entrance was a separate and distinct act from the closing and rerouting of the relevant stretch of 118th Avenue and did not result in the property's loss of direct access to 118th Avenue.

The Court of Appeals rejected the DOT's argument. The Court of Appeals held that access to and from 118th Avenue was an incident of ownership that had to be accounted for in determining the compensation due the property owner for the temporary easement. The Court of Appeals said that the property owner should have been allowed to offer evidence of the change in value to its property based on the vacation of 118th Avenue. The Court of Appeals therefore reversed and remanded to the trial court for further proceedings consistent with its decision.

The DOT petitioned for review, raising the following issues for this Court's consideration:

  • When valuing a temporary limited easement (TLE) under Wis. Stat. sec. 32.09(6g), is it proper to allow an appraiser to testify about alleged permanent severance damages for the period of time beyond the term of the TLE?
  • When valuing a TLE, can a landowner introduce evidence on damages caused by other aspects/phases of a project?
  • When exercising a police power – like relocating a highway – does DOT need to compensate an abutting landowner for elimination of a connection to a highway, especially where a landowner never had a legal right to access that highway at the location of the connection?

From Kenosha 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:

2013AP1342-44-W Gordon v. Baenen

2012AP723 State v. Flores-Ramirez
2013AP2699-2700-W al Ghashiyah v. Haines - Justice N. Patrick Crooks did not participate.
2014AP98-W al Ghashiyah v. Haines - Justice N. Patrick Crooks did not participate.
2012AP2050-CRNM State v. McCall

2011AP86-W Moore v. Pollard
2012AP2062-CR State v. Majette
2013AP2325-26-W Spencer v. Cir. Ct. Dane Co.
2010AP1291/2022/2835 & 2011AP561 Nickel v. Wells Fargo Bank
2011AP2856 Swinson v. Snider
2012AP1065-CR State v. McCoy
2012AP1870 Glover v. Smith
2012AP2650-NM Dane Co. v. Thomas F.W.
2013AP2241-W O'Grady v. Circ. Ct. Dane Co. - Chief Justice Shirley S. Abrahamson did not participate.
2013AP2527-W O'Grady v. Circ. Ct. Dane Co. - Chief Justice Shirley S. Abrahamson did not participate.

2012AP2386-CR State v. Villwock
2012AP2422 Harris v. Schwarz
2013AP891-CR State v. Vega

Fond du Lac
2013AP132-CR State v. Abitz

2010AP1185 Lands' End v. - City of Dodgeville Justice Patience Drake Roggensake dissents.

2013AP261-CR State v. Ronning

2012AP2317-CR State v. Trevino

2013AP579-FT Morrone v. Wis. Phys. Ins. Corp.
2013AP1180-CR State v. Pavlovic
2013AP2889-W Peterson v. COA, Dist. II

2013AP105-6-CRNM State v. Shuttlesworth

La Crosse
2013AP1803-W Yeoman v. Pollard

2013AP1403-CR State v. Selenske

2012AP863-CR State v. Smith
2012AP1682 Terry v. Journal Broadcast Corp.
2012AP1729 State v. Schwarz
2012AP1781 State v. McCradic
2012AP1822-W Jones v. Baenen
2012AP1854/61-62-CR State v. Jackson
2012AP1981 Deutsche Bank Nat. Trust v. Matson
2012AP2434-CR State v. Jimmerson
2012AP2469 Heinecke v. Aurora Healthcare
2012AP2538 Milwaukee Tran. Serv. v. Family Dollar Stores - Justice Michael J. Gableman did not participate. Chief Justice Shirley S. Abrahamson dissents.
2012AP2547-CR State v. Cramer
2012AP2559 State v. Bowers
2012AP2641 State v. Jackson
2012AP2736-CR State v. Cotton
2013AP27-CR State v. Jackson
2013AP64-CRNM State v. Gonzales
2013AP341-CR State v. Thomas
2013AP748 Village of Brown Deer v. Balistrerri
2013AP832-CR State v. McToy
2013AP1587-W Williams v. Pugh
2013AP1676-W James v. Baenen
2013AP2177-W Meeks v. Meisner
2012AP817 State v. Wilson
2012AP1128-CR State v. Wingo
2012AP2190-CR State v. Jackson
2012AP2329-CR State v. David L.
2012AP2765 State v. Thomas
2012AP2818-20-CR State v. Garcia
2012AP2826 State v. Hard
2013AP195 State v. Roundtree
2013AP209-CR State v. Hall
2013AP310-CR State v. Adamczak
2013AP750-CR State v. Perez
2013AP834-CR State v. Dawson
2013AP1393 State v. Niko C.

2013AP796-CR State v. Lawrence

2012AP2592-CR State v. Oligney

2012AP1707 Northernaire Resort & Spa v. Northernaire Condo Assoc.

2013AP435 Bank of Kaukauna v. Roberts

2013AP215 State v. Madsen

2012AP1979-CR State v. Haydon
2013AP839 State v. Kaleb K. - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2013AP538 City of Stevens Point v. Shurpit

2012AP1475-CR State v. Green
2013AP130-CR State v. Shannon
2013AP403-CRNM State v. Burns
2013AP1233-W Wright v. Cir. Ct. Racine Co.
2012AP2239 Artisan & Truckers Ins. v. Boedecker

2012AP868 McRoberts v. Allstate Prop. & Cas. Ins.
2012AP1067-CR State v. Johnson

2012AP1703/2812 Brandl v. Hower

2013AP2737-W Swinson v. Douma

St. Croix
2013AP389-CR State v. Hogenson

2012AP2211 State v. Wozny
2013AP131-CR State v. Williams

2012AP2353 State v. Brust

2013AP480 Waukesha Memorial Hosp. v. Nierenberger
2012AP2783 State v. Pantoja

2012A1867-CR State v. Kuenzi

2012AP2136 State v. Blunt
2013AP112-CR State v. Viliunas
2013AP1075 Co. of Winnebago v. Bauman - Justice David T. Prosser, Jr. did not participate.
2013AP1519-20 Winnebago Co. DHS v. Christina M.C. - Justice David T. Prosser, Jr. did not participate.
2013AP2751-W Austin v. Smith

Tom Sheehan
Court Information Officer
(608) 261-6640



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