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New Supreme Court Cases

By: dmc-admin//November 19, 2007//

New Supreme Court Cases

By: dmc-admin//November 19, 2007//

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The Wisconsin Supreme Court has voted to accept four 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.

2006AP2254-CR State v. Doss

In this criminal case, the Supreme Court has granted both the petition for review filed by the state and a cross-petition for review filed by defendant Carmen L. Doss.

Doss is accused of theft as a trustee for failing to pay past-due state income taxes on behalf of her father’s estate. She asks the Supreme Court to determine if there was sufficient evidence to support her conviction.

The state’s petition asks the Supreme Court to determine if bank statements backed up by a bank officer’s affidavit, but without live testimony subject to cross-examination, violates a defendant’s right to confrontation.

Background: Doss, who lived in Georgia, hired a Milwaukee attorney to assist in probating the father’s estate. The attorney concluded the estate owed taxes because Doss’ father allegedly failed to pay state income taxes during the last eight years of his life. As co-personal representative of the estate, the attorney said she felt obligated to make sure the taxes were paid.

On Feb. 6, 2004, the attorney filed the tax return and forwarded a check for $39,865 to the state Department of Revenue. In the meantime, on February 19, 2004, Doss contacted the revenue agent in charge of the audit and persuaded her to hold the check and not cash it. The next day, Doss withdrew all the money in the M&I account, $70,555.47. When the revenue agent submitted the check for cashing, it was returned because the account had been closed.

Doss claimed her father was not a resident of the State of Wisconsin, and therefore denied any tax liability. Doss was convicted by a jury, and she was sentenced to six years of imprisonment, including one year of initial confinement followed by five years of extended supervision. She also was ordered to pay restitution. Doss’s post-conviction motion was denied, and she appealed. The Court of Appeals reversed.

The Supreme Court could further delineate the parameters of what constitutes “testimonial statements” based on a previous U. S. Supreme Court decision, Crawford v. Washington, 541 U.S. 36 (2004). From Milwaukee County.

2006AP2744-CR to 2006AP2746-CR State v. Grunke

This criminal case involves three defendants accused of attempted third-degree sexual assault and examines whether Wisconsin’s sexual assault statutes apply when an alleged victim is dead.

Background: Alexander and Nicholas Grunke and Dustin Radke intended to remove a young woman’s body from her grave in a Cassville cemetery so that Nicholas Grunke could engage in sexual intercourse with the corpse.

The three men used shovels to reach the grave, but ran away when they were interrupted by a vehicle driving into the cemetery. The defendants were charged with, among other things, attempted third-degree sexual assault, as a party to a crime, contrary to Wis. Stat. secs. 940.225(3), 939.05, and 939.32.

The circuit court concluded that the sexual assault statute did not apply to sexual intercourse with a corpse. While the Court of Appeals found the statute to be ambiguous, it concluded that the Legislature did not enact Wis. Stat. sec. 940.225, by virtue of Wis. Stat. sec. 940.225 (7) as a general necrophilia statute that would criminalize the charged conduct.

The Court of Appeals said: “While sexual intercourse with a corpse unquestionably presents a case of sexual immorality, the relevant question is whether sexual intercourse with a corpse, unrelated to the individual’s death, is an activity the Legislature intended to proscribe in a statute geared toward protecting bodily security.”

The state argues that subsection 7 applies, whether a victim is dead or alive at the time the sexual contact or sexual intercourse occurs. The defense argues that a dead person cannot be first dead and then become a victim, and it contends the Legislature should correct the statutory language if it chooses.

A decision by the Supreme Court could clarify how the sexual assault statute applies in cases where an alleged victim was dead at the time of assault. From Grant County.

2006AP818 J.G. and R.G v. Wangard

This is an insurance coverage dispute that arises from a civil suit brought by a minor who was sexually assaulted by the defendant’s husband. The legal question is whether intentional acts of one insured should bar liability coverage for another negligent insured in the context of a criminal act committed by one spouse.

Background: In 2003, Deborah Wangard learned that her husband, Steven, had been accused of sexually abusing a minor, one of the plaintiffs in this case. Steven eventually pled guilty to related criminal charges in Waukesha County Circuit Court and is now serving a five-year prison sentence. The plaintiff and her mother then sued the Wangards and their insurance liability carriers for compensatory and punitive damages.
The insurance companies obtained a declaratory judgment that they had no duty to defend Deborah in the civil lawsuit. The Court of Appeals affirmed.

A decision by the Supreme Court could resolve inconsistencies in existing case law and determine, in this case, if an umbrella provision in Deborah’s homeowner’s policy triggers a duty to defend.

2007AP230-W State ex rel. Hipp v. Murray

This case examines whether judges, as the state maintains, have exclusive authority to issue subpoenas for witnesses in John Doe proceedings.

Background: Adrian T. Hipp is incarcerated on theft charges. In October 2006, he requested a John Doe hearing pursuant to Wis. Stat. sec. 968.26. He alleged that a woman had taken valuable property from his apartment without his consent after he was arrested. He contends that she is guilty of theft.

The question before the Supreme Court involves whether, and how, his witnesses may be brought before the John Doe tribunal.

Milwaukee County Assistant District Attorney John Reddin took the position at a hearing on this case that subpoenas issued by the clerk of court — at Hipp’s request — were invalid. Milwaukee County Circuit Court Judge Marshall B. Murray advised Hipp that at a John Doe proceeding neither the clerk nor Hipp had subpoena power. Judge Murray ruled that Hipp had not established probable cause to believe a crime had been committed.

The Court of Appeals concluded that Hipp was entitled to have the clerk of courts issue subpoenas to those whom he wishes to have testify.

A decision by the Supreme Court could determine if the John Doe statute permits a person filing a John Doe petition to compel the appearance of witnesses at the hearing by subpoenas not issued by the judge.

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