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.
Summary:
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 D's 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.
Summary:
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 officer's
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 officer's 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: D's 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.
Summary:
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 D's motion, and the prior OWI's could not be used as penalty enhancers for the 2001 charges. The circuit court granted the State's 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 D's 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.
Summary:
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.
Summary:
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 judge's 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 Defendant's
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.
Summary:
Defendant was convicted of OWI for an incident in which a victim
was struck by Defendant's 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 victim's
condition and D's 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. D's 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
victim's 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
officer's subjective belief about his safety and safety of
others
Holding: An officer's 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 officer's 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
individual's failure to obey the direction of an officer to keep
his hands in the officer's sight is a significant factor to
consider in determining the reasonableness of an officer's
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
officer's 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 defendant's coat, the placement of his
hands in his pockets, defendant's 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.
Summary:
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 individual's "hands in pockets" automatically establishes reasonable suspicion or dangerousness necessary to justify a frisk.