Please ensure Javascript is enabled for purposes of website accessibility
Home / Case Digests / Weekly Case Digests – November 16, 2020 – November 20, 2020

Weekly Case Digests – November 16, 2020 – November 20, 2020

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Bruce Carneil Webster v. T.J. Watson, Warden,

Case No.: 19-2683

Officials: KANNE, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Court Error – Newly Discovered Evidence

In 1996 the federal district court in Fort Worth, Texas sentenced Bruce Webster to death for the murder two years earlier of a 16-year-old girl. Ever since Webster has sought relief from that sentence on the same ground he advanced at trial—that he is intellectually disabled. His efforts gained traction in 2009, when his lawyers came upon records dating to 1994 from the Social Security Administration showing that three different doctors found him intellectually disabled. That development sparked a renewed effort to secure relief in this circuit because Webster is housed in the U.S. Penitentiary in Terre Haute, Indiana. In 2015, sitting en banc, we held that Webster was not barred by the limitations imposed on successive requests for post-conviction relief from seeking to show that he is ineligible for the death penalty based on newly discovered evidence. Webster v. Daniels, 784 F.3d 1123, 1139–40 (7th Cir. 2015). We remanded to allow the district court to determine whether the Social Security records constituted newly discovered evidence—a question turning on whether the records were “previously existing evidence of [Webster’s] intellectual disability that counsel did not uncover despite diligent efforts.” Id. at 1141.

Following extensive proceedings on remand, the district court found that Webster’s defense counsel did not discover the Social Security records despite reasonable diligence at the time of trial. From there the district court held a five-day hearing and determined that Webster had carried his burden of showing by a preponderance of the evidence that he is intellectually disabled. Having taken our own look at the record evidence, we conclude that the district court’s findings contain no clear error. We therefore affirm the decision to vacate Webster’s death sentence.

Affirmed
Full Text

7th Circuit Court of Appeals

Case Name: Servotronics, Inc., v. Rolls-Royce PLC, et al.,

Case No.: 19-1847

Officials: SYKES, Chief Judge, and HAMILTON and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation – Foreign Arbitration

Section 1782(a) of Title 28 authorizes the district court to order a person within the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal.” This case asks whether a private foreign arbitration is “a proceeding in a foreign or international tribunal” within the meaning of the statute.

Two decades ago, the Second and Fifth Circuits answered this question “no,” holding that § 1782(a) authorizes the district court to provide discovery assistance only to state-sponsored foreign tribunals, not private foreign arbitrations. Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 883 (5th Cir. 1999).

More recently, the Sixth Circuit reached the opposite conclusion, Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 714 (6th Cir. 2019), and the Fourth Circuit agreed, Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 214 (4th Cir. 2020). We join the Second and Fifth Circuits and hold that § 1782(a) does not authorize the district court to compel discovery for use in a private foreign arbitration.

Affirmed
Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Synika Antonio Kirk

Case No.: 2019AP175-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Warrantless Search – Probable Cause

Synika Kirk appeals a judgment, entered upon his guilty plea, convicting him of conspiracy to manufacture or deliver between 2500 and 10,000 grams of tetrahydrocannabinols (THC), contrary to WIS. STAT. § 961.41(1)(h)4. (2017-18). Kirk contends the circuit court erred by denying his motion to suppress evidence found during a warrantless search of his automobile. Specifically, he argues the court erred by determining the search—which was conducted while Kirk’s automobile was loaded and being carried on a car transport truck—was permissible under the so-called automobile exception to the warrant requirement. We conclude the officer who performed the warrantless search had probable cause to search Kirk’s automobile. Consequently, the court properly determined the automobile exception to the warrant requirement applied, and we affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael L. Brantner

Case No.: 2019AP710-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Michael Brantner appeals a judgment, entered upon a jury’s verdict, convicting him of one count of repeated sexual assault of the same child, contrary to WIS. STAT. § 948.025(1)(b) (2017-18), and an order denying his postconviction motion for a new trial. Brantner argues the circuit court erred by excluding evidence that supported his defense. Brantner also contends that his trial counsel was ineffective by failing to impeach a State’s witness with his prior convictions. Brantner alternatively claims that the cumulative effect of these claimed errors entitles him to a new trial. We reject Brantner’s arguments and affirm the judgment and order.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kenneth L. Risch

Case No.: 2019AP2027-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Sentencing Guidelines

Kenneth Risch appeals a judgment convicting him of second-degree sexual assault of a child, as a repeater, and an order denying his motion for postconviction relief. After revocation of his probation, Risch was sentenced to five years’ initial confinement and seven years’ extended supervision. On appeal, Risch argues the circuit court erroneously exercised its discretion when imposing that sentence because it relied on improper factors—specifically, compelled statements that Risch made to his probation agent and a treatment provider, as well as information derived from those compelled statements. Risch also argues his trial attorney was ineffective by failing to object to the court’s consideration of the compelled statements and derivative information.

We conclude Risch has failed to establish that the circuit court actually relied on any compelled statements or information derived from compelled statements when imposing his sentence after revocation. Accordingly, Risch has failed to show that the court actually relied on any improper factors. Consequently, Risch’s trial attorney was not ineffective by failing to object during his sentencing after revocation hearing. We therefore affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jackie Holloway, II

Case No.: 2019AP2218-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Ineffective Assistance of Counsel

Jackie Holloway, II appeals his judgment of conviction for possession of a firearm by a felon, as well as the order denying his postconviction motion. Holloway argues that he received ineffective assistance of counsel because his trial counsel failed to introduce evidence that would serve to impeach witnesses to a shooting. After a Machner hearing, the postconviction court ruled that Holloway’s trial counsel did not perform deficiently and thus rejected Holloway’s claim; the court did not address the prejudice prong of the ineffective assistance of counsel analysis.

Full Text

WI Court of Appeals – District III

Case Name: Brown County Human Services v. T.F.,

Case No.: 2020AP793

Officials: SEIDL, J.

Focus: Termination of Parental Rights

T.F. appeals an order involuntarily terminating her parental rights to her daughter, Allie. At a hearing prior to the jury trial at the grounds phase, the circuit court granted the Brown County Human Services Department’s (the Department) motion in limine prohibiting T.F. from presenting evidence to the jury that she visited or communicated with Allie after the date the Department filed the termination of parental rights (TPR) petition. T.F. argues the court erroneously exercised its discretion by granting the Department’s motion and that the court’s error was not harmless. We agree. Therefore, we reverse the order terminating T.F.’s parental rights to Allie and remand for a new jury trial at the grounds phase of these proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District I

Case Name: N.M. v. State of Wisconsin

Case No.: 2020AP964

Officials: WHITE, J.

Focus: Termination of Parental Rights

N.M. appeals the circuit court’s order terminating the parental rights of her mother, J.M.W., on the petition of the Milwaukee County Department of Human Services. She asks this court to vacate the order and remand to the circuit court. She argues that the circuit court erroneously exercised its discretion because, under the facts in the record, no reasonable court could have concluded that termination of parental rights was in the best interests of the child. For the reasons stated below, we conclude that termination was not an erroneous exercise of discretion, and accordingly, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.M.W.

Case No.: 2020AP1057

Officials: WHITE, J.

Focus: Termination of Parental Rights

J.M.W. appeals the circuit court’s order terminating her parental rights to her child, N.M., on the petition of the Milwaukee County Department of Human Services. She asks this court to reverse the termination order and remand to the circuit court for a new dispositional hearing. She argues that the circuit court erroneously exercised its discretion because it misapplied the “harm to the child” factor when finding that termination of J.M.W.’s rights was in the best interests of the child. For the reasons stated below, we conclude that termination was not an erroneous exercise of discretion, and accordingly, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.Q.

Case No.: 2020AP1109

Officials: DUGAN, J.

Focus: Termination of Parental Rights

D.Q. appeals the circuit court’s order terminating his parental rights. This court concludes that there is credible evidence to sustain the circuit court’s finding that D.Q. is an unfit parent, and it concludes that the circuit court did not erroneously exercise its discretion in finding that terminating D.Q.’s parental rights was in K.C.’s best interests. Thus, this court affirms.

Full Text

WI Court of Appeals – District II

Case Name: Scott Dhein v. Frankenmuth Mutual Insurance Company and City Centre, LLC, et al., 

Case No.: 2019AP531

Officials: Neubauer, C.J., Reilly, P.J., and Davis, J.

Focus: Insurance Claim – Negligence

City Centre, LLC (City Centre) and Frankenmuth Mutual Insurance Company appeal from the summary judgment dismissal of City Centre’s claim for coverage against ACE American Insurance Company (ACE). ACE is the comprehensive general liability (CGL) carrier for Broadwind, Inc., d/b/a Tower Tech Systems (Broadwind), one of City Centre’s commercial tenants. City Centre is an additional insured on the ACE policy pursuant to its lease with Broadwind. The lease provided contractual indemnification, requiring Broadwind to hold City Centre harmless for any injury caused in whole or in part by Broadwind’s negligence. City Centre was sued by Scott Dhein, an employee of Broadwind, following an accident on September 9, 2013. The accident occurred on property owned by City Centre but used by Broadwind on a daily basis in the course of its business. City Centre tendered coverage to ACE. ACE refused to provide a defense or coverage to City Centre.

The circuit court granted summary judgment to ACE on the grounds that any coverage under the ACE policy was excluded as Dhein’s accident did not occur on premises rented by Broadwind and no evidence existed that Broadwind was causally negligent for Dhein’s injuries. City Centre argues that the court erred in granting summary judgment as coverage exists under both the “additional insured” and “insured contract” provisions of the ACE policy and a genuine issue of material fact exists as to Broadwind’s causal negligence.

We conclude that the additional insured endorsement provides coverage to City Centre for liability incurred for bodily injury caused by Broadwind’s “acts or omissions,” regardless of whether Broadwind is legally negligent. Even in the absence of our first conclusion, a genuine issue of material fact would exist as to Broadwind’s causal negligence so as to trigger coverage for any resulting liability under the additional insured endorsement to the extent, upon further appeal, negligence is deemed a required element for coverage under the endorsement. Moreover, Broadwind has coverage under the same policy for certain contractual indemnification obligations it may owe to City Centre as a result of Broadwind’s negligence. We also conclude, however, that City Centre cannot invoke the direct action statute to enforce Broadwind’s rights to that coverage as the direct action statute only permits an action against a liability insurer to recover insurance proceeds attributable to a negligence action, and, in this case, Broadwind’s underlying liability to City Centre can only result from contractual indemnity.

We recite the pertinent facts, address negligence and insurance law in Wisconsin, and analyze the additional insured and insured contract provisions of the ACE policy and how they apply in this case.

Recommended for Publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. John E. Sowin

Case No.: 2019AP647-CR

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: Sufficiency of Evidence

A jury found John E. Sowin guilty of fifteen counts of possession of child pornography. We reject his contentions that his motions to suppress the fruits of the search warrant leading to the discovery of the pornography should have been granted and that the evidence should have been excluded at trial as irrelevant or more prejudicial than probative. We also disagree that the evidence was insufficient to support the verdict. We affirm the judgment.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sterling W. Kienbaum

Case No.: 2019AP680-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Sentence Modification

Sterling W. Kienbaum appeals from an order denying his motion for sentence modification. We disagree that the imposed sentence was excessive or that the subsequent resolution of a related civil case against him presented a “new factor.” We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jameil A. Garrett

Case No.: 2019AP852

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Ineffective Assistance of Counsel

The State appeals an order granting Jameil Garrett a new trial after two postconviction motions alleging ineffective assistance of trial and postconviction counsel for not calling alibi witnesses. The State argues that Garrett did not sufficiently prove that he was prejudiced. We agree and reverse the order and remand with directions that Garrett’s conviction be reinstated.

Full Text

WI Court of Appeals – District IV

Case Name: Jasen Dane Ranch, LLC, v. Nelson Hardwood Lumber Company, Inc., et al.,

Case No.: 2019AP1774

Officials: Fitzpatrick, P.J., Graham, and Nashold, JJ.

Focus: Punitive Damages

Nelson Hardwood Lumber Company, Inc., mismarked a property boundary line and, as a result, erroneously harvested trees from a parcel that belongs to Jasen Dane Ranch, Inc. (JDR). The sole question for trial was whether JDR is entitled to punitive damages as a result of Nelson Hardwood’s conduct. The circuit court determined that JDR had not established a prima facie case for punitive damages and, pursuant to WIS. STAT. § 895.043(4) (2017-18), the court declined to submit a punitive damages question to the jury. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott W. Heimbruch

Case No.: 2019AP1857

Officials: Fitzpatrick, P.J., Kloppenburg, and Nashold JJ.

Focus: OWI – Sufficiency of Evidence

Scott W. Heimbruch was issued a notice of intent to revoke operating privilege based on Heimbruch’s refusal to submit to a chemical test of his blood after he was arrested for operating while intoxicated. He requested a refusal hearing, and at the hearing Heimbruch moved to dismiss the notice of intent to revoke operating privilege. See WIS. STAT. § 343.305(9) (2017- 18) (setting forth the procedures for requesting and holding a “refusal hearing” on a notice of intent to revoke a person’s operating privilege). The circuit court granted the motion because the script that the legislature requires the requesting officer to read to the accused (the “Informing the Accused” form), which was read verbatim to Heimbruch, inaccurately states the law in one respect. Specifically, the form contains information that inaccurately states the consequences of refusing a test for a driver who is in a motor vehicle accident but who is not suspected of intoxication. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774 (the Informing the Accused form inaccurately states that if a driver who is “not suspected of a drunk-driving offense” refuses to submit to a chemical test the driver’s license will be revoked). The State appeals, arguing that the circuit court erred because Heimbruch was required and failed to present evidence that the inaccurate information caused him to refuse to submit to the test.

We conclude that Heimbruch was “adequately informed of his rights under the law,” as required by Washburn Cnty. v. Smith, 2008 WI 23, ¶51, 308 Wis. 2d 65, 746 N.W.2d 243, where, under suspicion of operating while intoxicated, he was read a form that accurately states the consequences of refusal for drivers suspected of intoxication, even though the form is inaccurate with respect to drivers who are in a motor vehicle accident but who are not suspected of intoxication. The officer accurately read the form required by statute and the inaccurate information in the form does not apply to Heimbruch. Accordingly, the circuit court erroneously granted Heimbruch’s motion to dismiss, and, therefore, we reverse and remand for further proceedings.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Raymond R. Barton

Case No.: 2019AP1990-CR

Officials: BLANCHARD, J.

Focus: Jury Instructions

Raymond Barton was found guilty at a jury trial of battery, disorderly conduct, and obstructing an officer. Barton argues that the circuit court erred in declining his request to give the jury the self-defense instruction on the battery and disorderly conduct charges. I reject this argument because there were insufficient facts to support the instruction. Barton also argues that the circuit court improperly denied his request for a mistrial based on the exposure of the jury to unfairly prejudicial testimony. I conclude that the circuit court did not erroneously exercise its discretion in determining that the testimony at issue was not sufficiently prejudicial to warrant a mistrial. Accordingly, I affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Grady P. Ganta

Case No.: 2019AP1991-CR

Officials: Fitzpatrick, P.J., Graham, and Nashold, JJ.

Focus: Sufficiency of Evidence

Grady Ganta appeals a judgment of conviction for identity theft based on Ganta’s use of a credit card bearing the victim’s name. Ganta argues: (1) that the evidence was insufficient to show that Ganta represented that he was the victim or was acting with the victim’s consent or authorization; (2) that the circuit court erred by excluding evidence that the victim had a history of allowing others to use his credit card; (3) that the prosecutor’s dismissal of a witness denied him a fair trial; (4) that the prosecutor’s improper closing arguments denied him a fair trial; and (5) that the circuit court violated his right to due process at sentencing when the court sentenced Ganta based on his conduct on the day of trial. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jerry A. Leister

Case No.: 2020AP365-CR

Officials: KLOPPENBURG, J.

Focus: 6th Amendment Violation – Right to Counsel

Jerry A. Leister appeals his conviction for intentional mistreatment of animals. He argues that he was denied his constitutional right to counsel because: (1) the circuit court permitted him to proceed pro se without conducting a colloquy ensuring that Leister was knowingly, intelligently, and voluntarily waiving his right to counsel,; and (2) the State failed at a postconviction evidentiary hearing to meet its burden of proving by clear and convincing evidence that Leister had in fact knowingly, intelligently, and voluntarily waived his right to counsel. See State v. Klessig, 211 Wis. 2d 194, 206, 212-213, 564 N.W.2d 716 (1997) (mandating a colloquy in every case where a defendant seeks to proceed pro se and delineating the State’s burden of proof at a postconviction evidentiary hearing where the circuit court failed to conduct an on the-record colloquy).

As I explain, the State in its response brief concedes the absence of an on-the-record colloquy but fails to address in any meaningful way Leister’s argument that the State filed to meet its burden at the postconviction evidentiary hearing, or to address the record and legal authority on which that argument is based. Accordingly, I accept Leister’s argument and, consistent with the mandate in Klessig, I reverse and remand for a new trial. Id. at 214 (directing that, if the State fails to prove by clear and convincing evidence that the defendant’s waiver was knowing, intelligent, and voluntary, the defendant “is entitled to a new trial”).

Full Text


Leave a Reply

Your email address will not be published. Required fields are marked *

*