Issue: Definition of "trial" in municipal court proceedings
Holding: Municipal court proceedings do not fail to constitute a trial when both sides make opening statements and have the opportunity to present evidence.
On July 27, 2001, D was cited for OWI and PAC by the City of Pewaukee. At trial, the City presented witnesses, and D cross-examined them. The City did not move to admit Ds blood test because the officer who had ordered the blood test was not available to testify. The City rested, and D moved to dismiss on the ground that the City had not met its burden of proof.
The City requested a new trial in the circuit court under Wis. Stat. s. 800.14(4) (2001-2002), which provides that either party of a municipal court action may request a new trial in the circuit court, and the circuit court must grant the request. The circuit court denied the request on the grounds that the matter had not been fully litigated in the municipal court and therefore it could not be classified as a trial. Because there had not been a "trial" in the municipal court, then, there could not be a new trial in the circuit court. The Court of Appeals affirmed, and the City appeals to the Supreme Court of Wisconsin.
The Supreme Court concluded that the municipal court proceeding had in fact been a trial because both sides had made opening statements and had had the opportunity to present evidence, even though D had decided not to do so, and because the municipal judge had decided the case on its merits. Since the matter had been fully litigated in the municipal court, the City had the right to a new trial in the circuit court. The Supreme Court reversed Court of Appeals decision and directed the circuit court to grant the request for a new trial.
Date: July 8, 2004
Case No: 02-2216-CR
Issues: Scope of questioning during traffic stop
Holding: During a valid traffic stop, if an officer
becomes aware of additional information that would give rise to
reasonable suspicion, the officer may investigate further, even if
doing so extends the seizure beyond the scope of the initial stop.
Defendant was a passenger in a vehicle that was stopped for speeding. As the officer approached the vehicle, he noticed several air fresheners hanging from the rearview mirror, which aroused his suspicion because air fresheners are often used to mask the odor of narcotics. Defendant and the other two occupants were not wearing seat belts, so the officer questioned each of them separately, outside the vehicle, inquiring about the group's travel plans. First, the driver indicated the group was going to visit family members. The second occupant answered that they were going to a rave party. He also volunteered that he was on probation for drug-related offenses. The officer then questioned Defendant, who said the group was going to visit family. The officer also asked Defendant whether he had ever received any tickets; Defendant stated that he had received some drug-related tickets. The officer then asked whether Defendant still used drugs; he answered that he still used marijuana. Defendant was fidgety and was putting his hands in his pockets contrary to officers instructions. Defendant consented to a pat-down, which yielded a marijuana pipe, some rolling papers, and a bundle of cash. A subsequent search of the vehicle uncovered a quantity of marijuana. Defendant argued that with the questions regarding his tickets and drug use, the officer extended the stop beyond what was necessary to investigate the seat belt violation and without sufficient factual basis to initiate a narcotics investigation. The court concluded that the officers questioning of Defendant beyond the scope of the initial stop was reasonable because there were objective indications that the occupants of the vehicle might be involved in narcotics activity, including the numerous air fresheners, the conflicting accounts of the group's plans, and the history of narcotics offenses by the Defendant and the other passenger.
State v. Deilke, 2004 WI 104, 274 Wis. 2d 595, 682 N.W.2d 945
Date: July 8, 2004
Case No: 02-2897-CR & 02-2898-CR
Issue: Collateral Attack of prior OWI convictions; breach of plea agreement
Holding: Ds collateral challenge to his OWI convictions constituted a material and substantial breach of the plea agreements upon which they were based. The appropriate remedy was to vacate the plea agreements and return the parties to their original positions.
On March 8, 2001, D was arrested and charged with one count of OWI-fifth and one count of PAC-fifth; D had pled guilty in four prior OWI cases. As part of those plea agreements, the State had dismissed a total of four PAC charges and two OAR charges.
In 2001, D moved to collaterally attack his earlier OWI's, based on invalid waiver of counsel. The circuit court granted Ds motion, and the prior OWI's could not be used as penalty enhancers for the 2001 charges. The circuit court granted the States motion to vacate the plea agreements and reinstate the dismissed PAC's, finding that D breached the plea agreements by his collateral attack. D pled no contest, and the State sought to use those convictions as penalty enhancers for the 2001 incident. D appealed.
The court found that Ds collateral attack prevented the State from receiving all it bargained for in the plea agreeents, because progressive punishment is a central component of OWI convictions. Thus, it was appropriate to rescind the plea agreements and return the parties to the positions they occupied prior to them.
State v. Faust, 2004 WI 99, 274 Wis. 2d 183, 682 N.W.2d 371
Date: July 2, 2004
Case No: 03-0952-CR
Issue: Warrantless nonconsensual blood draws; exigency
Holding: The decision of the Court of Appeals affirming the trial court's decision to grant D's motion to suppress his nonconsensual blood test is reversed. The presence of one presumptively valid breath sample of a person arrested for OWI does not extinguish the exigent circumstances justifying a warrantless nonconsensual blood draw.
Defendant was charged with OWI and operating with a PAC. Here, the Court found that exigent circumstances jutifying a nonconsensual blood draw do not cease to exist in all cases when the police have already obtained a presumptively valid breath test; it may be important to obtain additional tests for several reasons. First, the breath test may be found unusable by the trial court if the arrestee should challenge it. Second, police often need to acquire more definitive evidence of intoxication where the results of a breath test are close to the legal limit. Third, even if the suspect has apparently consented to provide an initial breath test, there may later be an issue as to whether consent was freely given.
This holding does not mean that police have carte blanche to take an unlimited number of tests as long as alcohol continues to dissipate from the bloodstream. Further, any warrantless nonconsensual blood draw must comport with the Bohling test of reasonableness. State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993).
State v. Gallion, 2004 WI 42, 270 Wis. 2d 1, 678 N.W.2d 197
Date: April 15, 2004
Case No: 01-0051-CR
Issue: Exercise of discretion by sentencing courts; consideration of victim's character
Holding: Oral pronouncement of a sentence should include (1) the general objectives that a sentence may address, (2) the objectives of greatest importance in the particular case, (3) the factors that were considered in arriving at the sentence, (4) how those factors influenced the decision, and (5) if probation is rejected, the reasons behind that decision. The sentencing court must explain why the particular component parts of the sentence imposed advance the specified objectives, in light of the facts of the case. The amount of explanation that is necessary will vary from case to case. The Court also held that it was not abuse of discretion for the sentencing court to consider the good character of the victim in its evaluation of the gravity of the offense.
Truth-in-sentencing leads to greater discretion by the sentencing court, creating a greater need to articulate on the record the reasons for the particular sentence imposed. It has become standard that meaningful appellate review can be avoided if a sentencing judge simply uses the magic words and gives a list of factors that were considered; this is not sufficient. In this case, D was convicted of homicide by intoxicated use of a motor vehicle, and sentenced to 21 years of confinement, 9 years ES. On appeal, he claimed the judge abused his sentencing discretion by not explaining why a lengthy sentence was appropriate and using the good character of the victim as evidence of the gravity of the offense. The Court found that the sentencing judges explanation of his reasons for the sentence was sufficient based on the law as it had been understood at the time of the sentencing, but that future cases must set out the reasons for sentences in greater detail. This holding is limited in that courts need not explain explain, for instance, the difference between sentences of 15 and 17 years. The Court's determination that that the character of the victim is a factor relevant to the gravity of the offense, is rooted in the fact that sentencing courts have wide latitude in determining what factors are relevant in its decisions.
State v. Naydihor, 2004 WI 43, 270 Wis. 2d 51, 678 N.W.2d 220
Date: April 15, 2004
Case No: 01-3093-CR & 01-3094-CR
Issue: Breach of plea bargain; Prosecutorial comments; Resentencing; Judicial vindictiveness
Holding: When a prosecutor agrees to recommend a sentence less than the maximum, he may nonetheless emphasize the gravity of the offense, the negative aspects of Defendants character, and the deteriorated condition of the victim. At resentencing, the presumption of judicial vindictiveness does not automatically arise when the new sentence is more severe than the first. When the presumption arises, it is overcome by objective information on the record justifying the increased sentence.
Defendant was convicted of OWI for an incident in which a victim was struck by Defendants vehicle and subsequently confined to a wheelchair. The State at sentencing breached the plea agreement. At resentencing, the victim testified that since the time of the first sentence, her condition had deteriorated. In the plea agreement, the State had agreed to recommend probation but retained the right to recommend the conditions and length of probation. State recommended 10 years of probation with several very strict conditions. In its comments, the State emphasized the victims condition and Ds negative character. D received a harsher sentence than had originally been imposed. The court found that the State did not breach the plea agreement at the resentencing because the State may discuss negative facts about a D in order to justify a recommended sentence within the parameters of the plea agreement. Ds claim of judicial vindictiveness at resentencing failed because in order to have a presumption of vindictiveness there must be a reasonable likelihood of actual vindictiveness, which did not exist here, because the original sentencing court had not been reversed and the a new court resentenced D. Even if the presumption did apply, it was overcome because the resentencing court justified the increased sentence on the grounds that the victims condition had deteriorated and her medical bills had increased.
State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449
Date: March 2, 2004
Case No: 02-1540-CR
Issue: Standard for reasonable suspicion justifying a frisk; weight of officers subjective belief about his safety and safety of others
Holding: An officers belief that his safety or that of others was in danger when confronting an individual is not a prerequisite to conducting a protective search for weapons. Nonetheless, an officers subjective belief about whether his safety was in danger is a relevant factor in determining whether the objective standard of reasonable suspicion was met. Further, an individuals failure to obey the direction of an officer to keep his hands in the officers sight is a significant factor to consider in determining the reasonableness of an officers suspicion that the individual being frisked might be armed and dangerous. The reasonable suspicion requirement is not, however, automatically satisfied when a person fails to comply with an officers order to keep his hands out of pockets, which could be concealing a weapon. Here, the totality of the circumstances, including the size of the defendants coat, the placement of his hands in his pockets, defendants nervousness and the time and location of the stop was not sufficient to create reasonable suspicion in the mind of a reasonable law enforcement officer that the defendant was armed and dangerous.
Defendant was a passenger in a vehicle that was stopped for a traffic violation. Upon request from the officer, Defendant exited the vehicle to allow the police to perform a consensual search of the vehicle. When he exited the vehicle, he was wearing a large, fluffy coat and continually placed his hands in his coat pockets. The officer directed Defendant several times to keep his hands out of his pockets; each time, Defendant complied but inserted them again almost immediately. While the officer testified that he did not believe that he was in danger before the frisk, he did conduct a protective frisk of Defendant approximately four to eight seconds after Defendant exited the vehicle. While no weapon was found, the officer did find marijuana. The circuit court found the protective frisk for weapons invalid and ordered the marijuana suppressed and the court of appeals affirmed.
While the court recognized that all of the factors that the State pointed to were relevant considerations in assessing whether reasonable suspicion to frisk existed, the court was not convinced that even when taken together, they were sufficient to justify the frisk. The court specifically rejected the bright-line rule proposed by the State; namely, that under no circumstances may an officer be questioned about his belief that his safety or that of others was at risk when confronted the frisked individual. The court also declined to adopt the per se rule that an individuals hands in pockets automatically establishes reasonable suspicion or dangerousness necessary to justify a frisk.