Weekly Case Digests — Sept. 29-Oct. 3, 2014

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Wisconsin Law Journal’s Case Digests

Sept. 29-Oct. 3, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Prisons
religious practices

Rufus West, also known as Muslim Mansa Lutalo Iyapo, appeals an order denying his petition for writ of certiorari. On appeal, West challenges the Department of Corrections’ dismissal of his inmate complaints, which alleged that the department improperly denied him the opportunity to participate in Islamic congregational study and prayer and confiscated religious clothing in violation of state law and the department’s own policies. For the reasons set forth below, we affirm the order of the circuit court. This opinion will not be published.

2013AP841 State ex rel. West v. Hamblin

Dist IV, Dane County, Foust, J., Per Curiam

Attorneys: For Appellant: West, Rufus, pro se; For Respondent: Russomanno, Anthony, Madison

BANKRUPTCY

U.S. Court of Appeals for the 7th Circuit

Bankruptcy
FDCPA claims

A debtor’s claim for violation of the FDCPA belongs to the bankruptcy estate.

“In addition to relying on a state-court judgment that, by the time of briefing, no longer existed, the Law Firm asked us to affirm on the bankruptcy judge’s ground — that any claim belongs to the estate in bankruptcy for the benefit of Richardson’s creditors, not to Richardson personally. The Law Firm made this argument to the district court too, but the court did not reach it given its reliance on the Rooker-Feldman doctrine. A prevailing party is entitled to defend its judgment on any ground preserved in the district court. See Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479 (1976). Richardson did not bother to file a reply brief, and it became apparent at oral argument that he is unaware of the rule stated in Ludwig — a rule that Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191 (1937), called ‘inveterate and certain’. Richardson thus forfeited his opportunity to contest this issue.”

Affirmed as modified.

12-3868 Richardson v. The Koch Law Firm, P.C.

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Easterbrook, J.

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil Procedure
declaratory judgment — issue preclusion

Nathan Leinweber and John Doe (collectively referred to as Leinweber) and Andrew Wirth appeal from an order granting State Farm Fire and Casualty Company’s motion for declaratory judgment. The order dismissed State Farm from the underlying tort action and relieved State Farm of the duty to defend and indemnify Wirth.

Leinweber and Wirth raise multiple arguments on appeal. Wirth argues that declaratory judgment was not procedurally appropriate after State Farm intervened in the underlying tort action. Leinweber argues that the circuit court erroneously exercised its discretion in deciding that issue preclusion does not apply to this case. Both Leinweber and Wirth argue that if issue preclusion does not apply, as the circuit court held, then there are issues of material fact that preclude declaratory judgment.

We conclude that declaratory judgment was procedurally proper, and that the circuit court did not err in deciding that issue preclusion does not apply or in granting declaratory judgment in favor of State Farm. Therefore, we affirm the order. Not recommended for publication in the official reports.

2014AP552 Leinweber et al. v. Wirth et al.

Dist IV, Jefferson County, Hue, J., Kloppenburg, J.

Attorneys: For Appellant: Guerin, D. Michael, Milwaukee; Keppel, Kathryn A., Milwaukee; Strohbehn, Christopher L., Milwaukee; For Respondent: Malloy, Mark D., Milwaukee

CONSTITUTIONAL LAW

U.S. Court of Appeals for the 7th Circuit

Constitutional Law
freedom of speech — panhandling

A municipal ordinance prohibiting panhandling does not violate the First Amendment.

“The ordinance is indifferent to the solicitor’s stated reason for seeking money, or whether the requester states any reason at all. And if the panhandler uses a sign, which is less threatening than oral demands (the requester need not approach the target), there is no restriction. Springfield has not meddled with the marketplace of ideas. Here, as in McCullen v. Coakley, 134 S. Ct. at 2530–32, what activates the prohibition is where a person says something (in the ‘downtown historic district’) rather than what position a person takes on a political or literary question. Petitioners are free to ask for money anywhere in Springfield outside the ‘downtown historic district’. The Court added in McCullen that selective exemptions from an otherwise-neutral rule do not make that rule content-based. It follows that Springfield’s exemption for signs does not make its ordinance content-based, and plaintiffs do not argue otherwise.”

Affirmed.

13-3581 Norton v. City of Springfield

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Easterbrook, J.

U.S. Court of Appeals for the 7th Circuit

Constitutional Law
right to vote

The motion for reconsideration of the court’s opinion ending the stay of Wisconsin’s voter ID law is denied.

“Crawford concluded that requiring would-be voters to spend time to obtain photographic identification does not violate the Constitution. ‘For most voters who need them, the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.’ 553 U.S. at 198. The burden of getting a photo ID in Wisconsin is not materially different from the burden that Crawford deemed acceptable.” Motion Denied.

14-2058 & 14-2059 Frank v. Walker

On Motion for Reconsideration, Per curiam.

ENVIRONMENTAL LAW

U.S. Court of Appeals for the 7th Circuit

Environmental Law
CERCLA

CERCLA preempts state law counterclaims.

“Like PMC, Glatfelter and WTM are not ‘victim[s] of toxic-waste contamination in any realistic sense.’ Id. Their common-law theories all present the same theory of causation at bottom: NCR’s common-law torts caused the counterclaiming defendants to incur CERCLA liability, and therefore they are entitled to damages from NCR. But CERCLA was written to ensure that parties like the defendants would be liable so that someone would be available to pay for the environmental cleanup. The situation the defendants describe is the exact scenario that CERCLA § 113(f) is meant to cover, when ‘the less guilty of two tortfeasors’ is trying to recover against the other. PMC, Inc., 151 F.3d at 618. We will not use state law effectively to undo CERCLA’s remedial design — a design meant to protect the environment, not parties that dumped hazardous waste for years. The two regimes cannot coexist while remaining faithful to Congress’s explicit purposes, and thus the common-law counterclaims must be preempted. The district court is affirmed on this point.”

“We REVERSE the district court’s judgment with regard to Appvion’s ability to bring suit under CERCLA § 107(a). We VACATE the decision to hold NCR responsible for all of the response costs at operable units 2 through 5 in contribution. We AFFIRM the following decisions: that NCR may proceed only under CERCLA § 113(f); that NCR is not liable as an arranger; that Glatfelter’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; that Glatfelter’s counterclaim based on the discharges at Portage should be dismissed; and that the defendants’ state-law counterclaims are preempted. This case is REMANDED for proceedings consistent with this opinion.”

Affirmed in part, Reversed in part, and Vacated in part.

13-2447, 13-2522, 13-2568, 13-2570, 13-2572, 13-2605, 13-2606, 13-2607, 13-2631, 13-2645, & 13-2866 NCR Corp. v. George A. Whiting Paper Co.

Appeals from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Wood, J.

U.S. Court of Appeals for the 7th Circuit

Environmental Law
CERCLA

Permanent injunctive relief is not an available remedy under CERCLA.

“[I]f courts were to undertake the traditional analysis for injunctive relief in deciding whether to enforce an EPA order, they would inject equitable considerations where they do not belong. Moreover, as Glatfelter points out, the entry of an injunction that simply orders PRPs to comply with a complex cleanup order issued by EPA may run afoul of Federal Rule of Civil Procedure 65(d)(1)(C), which requires that every injunction ‘describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.’ Accordingly, permanent injunctive relief is incongruous with the nature and purpose of an action to enforce an administrative clean-up order under CERCLA § 106(b).”

Affirmed in part, and Vacated in part.

13-2436 & 13-2441 U.S. v. P.H. Glatfelter Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Tinder, J.

EVIDENCE

Wisconsin Court of Appeals

Evidence
expert witnesses

This case involves litigation over a boiler that exploded during installation and adjustment of the boiler at Premier Cooperative. The plaintiff, Nationwide Agribusiness Insurance Company, as subrogee of its policyholder, Premier Cooperative, sued the installer, August Winter & Sons, Inc. Prior to trial, August Winter asked the circuit court to exclude the only expert witness Nationwide planned to present on the topic of the cause of the explosion. The court excluded the expert witness. The question on appeal is whether the circuit court properly excluded the witness under Wis. Stat. § 907.02(1), Wisconsin’s Daubert statute. We agree with the circuit court that the witness was properly excluded and, therefore, affirm. This opinion will not be published.

2014AP488 Nationwide Agribusiness Insurance Company as Subrogee of Premier Cooperative v. August Winter & Sons Inc.

Dist IV, Iowa County, Dyke, J., Per Curiam

Attorneys: For Appellant: Covin, Mark D., Minneapolis; Dahlmeier, David M., Minneapolis; Aggergaard, Steven P., Minneapolis; For Respondent: Christensen, Kevin A., Milwaukee; Utlaut, Heather Lynn, Milwaukee

IMMIGRATION

U.S. Court of Appeals for the 7th Circuit

Immigration
cancellation of removal

The BIA is entitled to deference in supplying a definition for the term, “sexual abuse of a minor.”

“Immigration statutes are full of vague words, such as ‘persecution,’ and vague phrases such as ‘crime of moral turpitude.’ The Board has not found a way to solve every interpretive problem in these phrases and has chosen the common-law approach. Judges have failed to turn tort law into a set of rules; Holmes declared in The Common Law that they were bound to do so eventually, but more than 130 years have passed without the goal being nearer. Perhaps ‘sexual abuse of a minor’ will prove equally intractable. Judges are not entitled to require the impossible, or even the answer they think best. Like the NLRB, the FTC, the SEC, and many another agency, the BIA is a policy-making institution as well as a judicial one. It may choose standards as the best achievable policies. Just as judges do every day, the Board is entitled to muddle through.”

Petition Denied.

12-2353 Velasco-Giron v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Easterbrook, J.

INSURANCE

Wisconsin Court of Appeals

Insurance
automobile policies — UIM coverage — governmental immunity

An exclusion to UIM coverage, where the underinsurance is the result of damage caps for torts by government employees is unenforceable.

“As in Trampf, the exclusion here in fact violates other applicable law, namely, WIS. STAT. § 632.32(4)(a)2m., which requires, in pertinent part, underinsured motorist coverage for ‘every policy of insurance … with respect to any owned motor vehicle registered … in this state against loss resulting from liability imposed by law for bodily injury.’ (Emphasis added.) This subsection requires that underinsured motorist coverage applies in all cases, and excluding coverage for government vehicles violates that applicable law.”

“State Farm does not attempt to distinguish Trampf. Instead, State Farm cites to Progressive Northern Insurance Co. v. Hall, 2006 WI 13, 288 Wis. 2d 282, 709 N.W.2d 46, and Mau v. North Dakota Insurance Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45, to support its assertion that the government vehicle exclusion ‘is valid under [WIS. STAT. § 632.32](5)(e) because it is not prohibited by any other statute.’ State Farm’s reliance on these cases is misplaced. In Hall, the court determined that an insurer’s ‘other insurance’ clause was not an exclusion, and, thus, the insurer could not rely on § 632.32(5)(e) (2003-04) to ‘save’ this clause. 288 Wis. 2d 282, ¶¶24-33. In Mau, the court concluded that an ‘occupancy requirement’ violated both the prohibition against excluding from coverage a named insured pursuant to WIS. STAT. § 632.32(6)(b)2.a. (1995-96), and the requirements for a ‘drive other car’ exclusion in § 632.32(5)(j) (1995-96). 248 Wis. 2d 1031, ¶¶34-38. State Farm fails to explain how either of these cases applies here or why they compel a different conclusion in light of Trampf.”

Reversed.

Recommended for publication in the official reports.

2013AP2518 State Farm Mut. Auto. Ins. Co. v. Hunt

Dist. IV, Columbia County, White, J., Blanchard, J.

Attorneys: For Appellant: Tyndall, Susan R., Waukesha; Rogers, Christopher E., Madison; Blocher, Jesse, Waukesha; For Respondent: Covelli, Claude J., Madison

JUVENILES

Wisconsin Court of Appeals

Juveniles
TPR — abandonment

Portage County Department of Health and Human Services appeals orders of the circuit court setting aside the verdicts of the jury following a hearing on whether grounds existed to terminate Shannon’s parental rights to her children, A.M. and T.M., and dismissing the Department’s petitions to terminate Shannon’s parental rights. Affirmed. This opinion will not be published.

2014AP1259, 2014AP1260 In re the termination of parental rights to Adian J.M.

Dist IV, Portage County, Flugaur, J., Sherman, J.

Attorneys: For Appellant: Miller, Steven L., River Falls; McKenna, Michael J., Stevens Point; For Respondent: Lueschow, Karen, Stevens Point

PROPERTY

Wisconsin Court of Appeals

Property
homeowners associations — assessments

Valaria Brooks appeals pro se from a judgment of the circuit court following the court’s grant of Kilbourn Woods Homeowners Association Inc.’s motion for reconsideration. Because Kilbourn’s legal action was untimely under the terms of the Declaration for Kilbourn Woods, we reverse and remand for dismissal of the complaint. This opinion will not be published.

2014AP1157 Kilbourn Woods Homeowners Association Inc. v. Brooks

Dist II, Kenosha County, Bastianelli, J., Gundrum, J.

Attorneys: For Appellant: Brooks, Valaria, pro se; For Respondent: Smith, Nicholas Adam, Milwaukee; Johnson, Jason L., Milwaukee

Wisconsin Court of Appeals

Property
foreclosure — prima facie case — hearsay

Gary and Susan Fineout appeal a judgment of foreclosure entered in favor of Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P. following a trial to the circuit court. The Fineouts contend that the circuit court erroneously exercised its discretion by admitting testimony from a Bank of America employee that the Fineouts argue constituted inadmissible hearsay and by admitting two loan documents under the exception to the hearsay rule for records of a regularly conducted activity, set forth in Wis. Stat. § 908.03(6) (2011-12). With respect to these issues, the Fineouts fail to persuade us that the circuit court erred.

The Fineouts also argue on appeal that the circuit court erred by granting Bank of America’s motion for partial summary judgment and dismissing the Fineouts’ two counterclaims to the foreclosure action. The Fineouts filed counterclaims against Countrywide Home Loans, Inc., the predecessor to Bank of America, alleging that Countrywide’s refinancing of the Fineouts’ mortgage loan was unconscionable and that Countrywide violated Wisconsin’s mortgage banker laws. We conclude that the court properly dismissed the Fineouts’ unconscionability counterclaim because, even assuming that the refinancing loan agreement was procedurally unconscionable, the Fineouts have failed to establish that it was commercially unreasonable and therefore substantively unconscionable. We further conclude that the court properly dismissed the counterclaim alleging violations of Wisconsin mortgage banker laws because the Fineouts failed to allege any facts in support of that counterclaim. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP2394 Bank of America N.A. v. Fineout et al.

Dist IV, Dane County, Sumi, J., Higginbotham, J.

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; Shah, Rishi G., Madison; For Respondent: Perhach, Katherine Maloney, Milwaukee; Demakopoulos, Christina, Brookfield; Karnes, Russell J., Brookfield

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Castle Doctrine
dwelling

A defendant charged with recklessly endangering safety, who fired at home invaders in a parking lot after they left his home was not entitled to a jury instruction under the “castle doctrine.”

“WISCONSIN STAT. § 939.48(1m)(a)1. imports the definition of the actor’s dwelling set forth at WIS. STAT. § 895.07(1)(h), which states: (h) ‘Dwelling’ means any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use. ‘Dwelling’ includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements. Key in this definition is the requirement that the part of the lot or site in question is ‘devoted to residential use.’ While the statute lists several parts of a residential lot that are part of ‘dwelling,’ it tellingly does not include a parking lot. See State v. Popenhagen, 2008 WI 55, ¶43, 309 Wis. 2d 601, 749 N.W.2d 611 (a statute that lists specific items may exclude those not listed). We can discern whether or not the list should be extended to include an apartment shared parking lot by looking at the items on the list. The common denominator of driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements as relates to an actor’s ‘home’ is that all are on the homeowner’s lot — property over which the actor has exclusive control. The same would be true of tenants renting a single place of residence. An apartment building parking lot, on the other hand, is shared by all the tenants. It is not exclusive to Chew or ‘devoted to [the] residential use’ of any one tenant. Sec. 895.07(1)(h). While Chew may have had the right to park there, the parking lot was not part of his own dwelling.”

Affirmed.

Recommended for publication in the official reports.

2013AP2592 State v. Chew

Dist. II, Sheboygan County, Bourke, J., Neubauer, J.

Wisconsin Court of Appeals

Extended Supervision
revocation — motions to reopen

Matthew Tyler, pro se, appeals an order affirming a decision of the Division of Hearings and Appeals that denied his motion to reopen his revocation case. Tyler claimed newly discovered evidence proved that Probation Agent Stephanie Lutz falsely stated he had completed a residential sex offender treatment program and that she refused to correct the information. Because he was neither enrolled in such a program nor had he completed one, Tyler argued that this was an available alternative to revocation. The Division concluded that Tyler failed to meet the criteria for a new hearing based on newly discovered evidence set out in State ex rel. Booker v. Schwarz, 2004 WI App 50, ¶12, 270 Wis. 2d 745, 678 N.W.2d 361. We affirm. This opinion will not be published.

2013AP2844 State ex rel. Tyler v. Hayes

Dist I, Milwaukee County, Guolee, J., Per Curiam

Attorneys: For Appellant: Tyler, Matthew, pro se; For Respondent: Moriarty, Richard B., Madison

U.S. Court of Appeals for the 7th Circuit

Murder by a Federal Prisoner
self-defense

Even if the victim was the aggressor in a confrontation between prisoners, where the victim was unconscious when the defendant killed him, the district court properly refused to instruct the jury on self-defense.

“In short, even accepting that Running Bear was the initial aggressor, there is no evidence that he posed an imminent threat when White Feather cut him open with the razor or that alternatives to this use of deadly force were unavailable. White Feather killed Running Bear slowly, deliberately, and savagely, while his victim was unconscious and posing no imminent threat, and in the presence of reasonable legal alternatives to the use of deadly force. Because no evidence supports White Feather’s claim of self-defense, the district court properly refused to instruct the jury on the defense.”

Affirmed.

13-2725 U.S. v. White Feather

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Sykes, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance — sentencing

Anthony Herman Williams appeals a judgment entered on his guilty pleas to one count of first-degree sexual assault with the use of a dangerous weapon and one count of kidnapping with the use of a dangerous weapon. He also appeals the circuit court’s order denying his motion for postconviction relief. Williams contends that: (1) the circuit court sentenced him on inaccurate information; (2) his trial lawyer gave him constitutionally deficient representation; and (3) a new factor requires resentencing. We affirm. Publication in the official reports is not recommended.

2014AP447-CR, 2014AP448-CR State v. Williams

Dist I, Milwaukee County, Borowski, J., Fine, J.

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal Procedure
speedy trials — new trials — ineffective assistance

Cyrus Brooks appeals a judgment convicting him of first degree reckless homicide as a party to a crime and an order denying his postconviction motion. He argues: (1) the case should have been dismissed because the State violated his constitutional right to a speedy trial; (2) he is entitled to a new trial based on newly discovered evidence; and (3) his trial counsel was ineffective. We reject these arguments and affirm the judgment and order. This opinion will not be published.

2013AP2260-CR State v. Brooks

Dist I, Milwaukee County, Sankovitz, Wagner, JJ., Per Curiam

Attorneys: For Appellant: Roemaat, Sara Heinemann, Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance — jury trial waiver

Kimberly Ecker, the guardian of Bryan Wolf’s estate, appeals a judgment of conviction following a court trial for theft of greater than $10,000 in a business setting. She argues trial counsel rendered ineffective assistance. She also challenges the exclusion of hearsay evidence, the circuit court’s findings regarding the incapacity of the ward to consent, the sufficiency of the evidence, venue, and the offense date identified in the Information. We reject all of Ecker’s arguments and affirm. This opinion will not be published.

2013AP2254-CR State v. Ecker

Dist III, Langlade County, Kawalski, J., Per Curiam

Attorneys: For Appellant: Cveykus, Ricky, Wausau; For Respondent: Uttke, Ralph M., Antigo; Tarver, Sandra L., Madison

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Emmett Dunlap appeals an order denying his Wis. Stat. § 974.06 motion for a new trial. The circuit court denied Dunlap’s motion without an evidentiary hearing, concluding Dunlap failed to assert a sufficient reason for failing to raise his arguments previously, as required by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Dunlap argues his appellate attorney’s ineffective assistance and Dunlap’s unawareness of the potential issues constituted sufficient reasons. We reject Dunlap’s argument, and affirm. This opinion will not be published.

2013AP2245 State v. Dunlap

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Richards, Mark D., Racine; Dimmer, Brian P., Racine; For Respondent: Gansner, William L., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Justin L. Anderson, pro se, appeals an order denying his motion for postconviction relief brought under Wis. Stat. § 974.06 (2011-12). He alleges that his trial counsel was ineffective for failing to seek relief from the joinder of his trial with that of his co-defendant, Paris Billups, following Billups’s testimony during his cross-examination. Anderson alleges that his postconviction counsel was ineffective in turn for failing to challenge trial counsel’s effectiveness. The circuit court determined that the claims are procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574. We affirm. This opinion will not be published.

2013AP1434 State v. Anderson

Dist I, Milwaukee County, DiMotto, J., Per Curiam

Attorneys: For Appellant: Anderson, Justin L., pro se; For Respondent: Loebel, Karen A., Milwaukee; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal Procedure
joinder — voir dire

Michael D. Hatton appeals from a judgment of conviction entered after a jury found him guilty of second-degree recklessly endangering safety and disorderly conduct and from an order denying his motion for postconviction relief. He argues that the trial court erred in denying his motion to sever improperly joined charges and that he is entitled to a new trial because the record fails to establish that the jury panel was administered a truth-telling oath prior to voir dire. We disagree and affirm. This opinion will not be published.

2013AP2465-CR State v. Hatton

Dist II, Walworth County, Reddy, J., Per Curiam

Attorneys: For Appellant: Wasielewski, John T., Milwaukee; For Respondent: Tarver, Sandra L., Madison; Necci, Daniel A., Elkhorn

Wisconsin Court of Appeals

Criminal Procedure
continuances

James Duncan appeals from a judgment convicting him of hit and run and operating a motor vehicle with a prohibited blood alcohol concentration (5th or 6th offense). He argues that the circuit court erred when it denied his request for a continuance, made shortly before trial, so that he could retain an expert to address blood alcohol testing results. Under the circumstances of this case, the circuit court did not err when it denied a continuance. We are also not persuaded by Duncan’s challenges to three evidentiary rulings. We affirm. This opinion will not be published.

2013AP645-CR State v. Duncan

Dist II, Washington County, Muehlbauer, J., Per Curiam

Attorneys: For Appellant: Stuckert, Lauren, Glendale; For Respondent: Bensen, Mark, West Bend; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal Procedure
Miranda warnings — custody

Jody Bolstad appeals a judgment of conviction on three counts of failing to tag a deer carcass, pursuant to Wis. Stat. § 29.347(2) and one count of possession of a deer during closed season, pursuant to Wis. Stat. § 29.055. Bolstad argues on appeal that his Fifth Amendment rights were violated when he was questioned by a Department of Natural Resources Warden inside a DNR vehicle without first being informed of his Miranda rights. The circuit court denied Bolstad’s motion to suppress the statements he made to the Warden. The only issue raised on appeal is whether Bolstad was in custody and thus entitled to a Miranda warning. We affirm. This opinion will not be published.

2014AP915-CR State v. Bolstad

Dist IV, Crawford County, Czajkowski, J., Higginbotham, J.

Attorneys: For Appellant: Breedlove, Tristan, Madison; For Respondent: Weber, Gregory M., Madison; Baxter, Timothy C., Prairie du Chien

Wisconsin Court of Appeals

Criminal Procedure
new trials — newly-discovered evidence — recantations

Landris T. Jines appeals the orders denying his Wis. Stat. § 974.06 motion for postconviction relief and motion for reconsideration, arguing that newly-discovered evidence requires a new trial, nine years after a jury convicted him of attempted first-degree intentional homicide while armed and possession of a firearm by a felon, both as a party to the crime and both as an habitual offender. Jines contends that the circuit court erred when it denied, without a hearing, his motions for a new trial based on two recantations from trial witnesses. We affirm. Publication in the official reports is not recommended.

2014AP132 State v. Jines

Dist I, Milwaukee County, Moroney, J., Fine, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

EVIDENCE

Wisconsin Court of Appeals

Evidence
other acts

A jury found Danny Rivera guilty of disorderly conduct and substantial battery, both as a party to a crime. He appeals the judgment of conviction and the order denying postconviction relief. He claims the circuit court erred by admitting evidence that he was serving a term of extended supervision when he committed the acts underlying the charges he faced. He seeks a new trial. We reject his contentions and affirm. This opinion will not be published.

2013AP2255-CR State v. Rivera

Dist I, Milwaukee County, Flanagan, J., Per Curiam

Attorneys: For Appellant: Zellner, Kiley, Milwaukee; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion

Benjamin Lind appeals from a judgment convicting him of operating while intoxicated, second offense, and from the denial of his motion to suppress. Lind contends the circuit court erred by finding there was reasonable suspicion to conduct an investigatory stop of his vehicle pursuant to Wis. Stat. § 968.24. We agree and reverse. This opinion will not be published.

2014AP749-CR State v. Lind

Dist III, Marathon County, Grau, J., Hoover, P.J.

Attorneys: For Appellant: Ellison, Keith F., Wausau; For Respondent: Heimerman, Kenneth J., Wausau; Weber, Gregory M., Madison; Mayo, Kyle R., Wausau

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Search and Seizure
reasonable suspicion

Joseph Tremell Jones appeals from a judgment of conviction, entered upon his guilty plea, on one count of possession of cocaine as a second or subsequent offense. Jones contends that the circuit court erroneously denied his suppression motion. We disagree and affirm the judgment. This opinion shall not be published.

2013AP2413-CR State v. Jones

Dist I, Milwaukee County, Fiorenza, J., Per Curiam

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

Wisconsin Court of Appeals

Search and Seizure
intrusion or trespass

Where a search warrant was based on observations made by police when they trespassed on the defendants’ property and peered into their windows, the search was illegal, and the evidence must be suppressed.

“Applying the intrusion or trespass standard, we conclude that Lieutenant Marks and Corporal Zientek trespassed on the defendants’ property when they, without permission, went up the back steps and onto the porch on the west side of the defendants’ trailer to peer into the window and when they peered into the window on the north end of the trailer. As noted, Thomas expressly told the officers that they could not search the trailer, but the officers went up to the windows, occupied areas that were indisputably protected, see Jardines, 133 S. Ct. at 1414 (no question that areas ‘immediately surrounding’ a house constitute curtilage, which ‘enjoy[] protection as part of the home itself’), and used their flashlights to peer inside, anyway. Moreover, this was not a situation where the officers went to the areas in question to simply knock on the door and ask a few questions. See id. at 1416 (‘a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do”’) (citation omitted). As the defendants point out in their briefs, the officers walked into the yard and onto the back porch ‘with the sole, express purpose of peering inside … the windows.’ ‘They had no other reason for being in those areas,’ and ‘candidly acknowledged that they could not have seen what they saw within the trailer if they had not been standing’ in the yard or on the back porch. Cf. Jardines, 133 S. Ct. at 1416 (‘To find a visitor knocking on the door is routine … to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.’). Consequently, the officers conducted an illegal search of the defendants’ property.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1916-CR & 2014AP166-CR State v. Popp

Dist. I, Milwaukee County, Fiorenza, J., Curley, J.

Attorneys: For Appellant: Bizzaro, Amelia L., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Kassel, Jeffrey J., Madison; DeCecco, Joseph R., Sheboygan

Wisconsin Court of Appeals

Search and Seizure
seizure

The State of Wisconsin appeals a circuit court order granting Micah Snyder’s motion to suppress evidence of intoxication on the grounds that it was derived from an unlawful seizure. The State argues that the circuit court erred in concluding that a Wisconsin State Patrol trooper seized Snyder when the trooper stopped his squad car facing Snyder’s stopped vehicle and then approached Snyder’s vehicle on foot to speak with him. Applying controlling Wisconsin Supreme Court precedent, I agree with the State that the trooper’s actions did not constitute a seizure and, therefore, I reverse the order of the circuit court granting Snyder’s motion to suppress. This opinion will not be published.

2013AP299-CR State v. Snyder

Dist IV, Columbia County, George, J., Blanchard, P.J.

Attorneys: For Appellant: Weber, Gregory M., Madison; Cross, Troy Dean, Portage; Smathers, Alexandra K., Portage; For Respondent: Wood, Tracey A., Madison