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2007

Supreme Court accepts four new cases

Madison, Wisconsin - November 12, 2007

The Wisconsin Supreme Court has voted to accept seven 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. Court of Appeals opinions/certification memos that are available online for the newly accepted cases are hyperlinked.

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 petison 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.

Some 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 February 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 2006AP2744-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.

Some 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. §§ 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. § 940.225, by virtue of Wis. Stat. § 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.

Some 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.

Some background: Adrian T. Hipp is incarcerated on theft charges. In October 2006, he requested a John Doe hearing pursuant to WIS. STAT. § 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.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court.

Petition to Bypass

Eau Claire

  • 2007AP558 State v. Frederick

Jefferson

  • 2007AP1289-CR State v. Baron
    Justices Patience Drake Roggensack and Annette Kingsland Ziegler dissent.

Petition for Supervisory Writ

Brown

  • 2007AP2118-W Frey v. Wallace
    Justice N. Patrick Crooks did not participate.

Petitions for review

Barron

  • 2006AP561 Schwark v. M&S Brugg

Brown

  • 2005AP1918 Samp Agency v. Amer. Fam.
    Chief Justice Shirley S. Abrahamson and Justice Annette Kingland Ziegler did not participate.
  • 2006AP2053-CR State v. Wilke
  • 2006AP2768 State v. Morales

Chippewa

  • 2006AP2806-CR State v. Lewallen

Columbia

  • 2006AP1777 Empereur v. LIRC

Dane

  • 2005AP2078 Harvey v. Bertrand
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP1975 Palm v. Odell
  • 2006AP2262 State v. Freer

Dodge

  • 2005AP2177-CRNM State v. Livingston

Eau Claire

  • 2006AP980 Morrison v. Rankin

Florence

  • 2007AP1897-W Gering v. Pollard

Fond du Lac

  • 2006AP3116-CR State v. Klumpyan

Grant

  • 2006AP2522-CR State v. Drew
    Chief Justice Shirley S. Abrahamson dissents.

Green

  • 2006AP1073-CR State v. Winger
    Justice Annette Kingsland Ziegler did not participate.
  • 2007AP1220-FT State v. Smith

Kenosha

  • 2006AP183-CR State v. Gaston
  • 2006AP622-NM State v. Jones
  • 2006AP2163 State v. Davies

Milwaukee

  • 2005AP2938 State v. Nelson
  • 2006AP355 State v. Williams
  • 2006AP436 State v. DeBerry
  • 2006AP652-CR State v. Flynn
  • 2006AP1508-CR State v. Truss
  • 2006AP1529 Carney v. CNH Health
  • 2006AP1607 State v. Gray
  • 2006AP1696 State v. Santiago
    Justice Louis B. Butler, Jr. did not participate.
  • 2006AP2033-CR State v. Oliver
  • 2006AP2356 State v. Deanglo L.
  • 2006AP2504-CR State v. Pettigrew
  • 2006AP2555-CR State v. St. Germaine
  • 2006AP2630 State v. Garrison
  • 2006AP2645 State v. Ezell
  • 2006AP2712-CR State v. Potkonjak
  • 2006AP2893-CR State v. Bolden
  • 2006AP2894-CR
  • 2007AP1182 State v. Terrell J.
  • 2007AP1297 State v. Beatrice S.O.
  • 2007AP1298
  • 2007AP1550-W McCloud v. Franks

Outagamie

  • 2006AP1569 Cook v. Amer. Family Insurance
    Justice Annette Kingsland Ziegler did not participate.

Racine

  • 2006AP772-CR State v. McMorris
  • 2007AP1169-FT State v. Joseph H.
    Justices Patience Drake Roggensack and Louis B. Butler, Jr. dissent.

Rock

  • 2006AP862 Edgerton Fire v. WERC
    Justice Patience Drake Roggensack dissents.

Sheboygan

  • 2007AP113 Biever v. Krueger
    Justice Patience Drake Roggensack did not participate.

Vilas

  • 2007AP454-CR State v. Paznonski

Walworth

  • 2006AP1103-CR State v. Kamlager
  • 2006AP2509 State v. Quarzenski

Washington

  • 2006AP1486 State v. Hedrick
    Justice Annette Kingsland Ziegler did not participate.

Waukesha

  • 2006AP1973 Sims v. Stapleton Realty
  • 2007AP24-CRNM State v. Oswald
  • 2007AP1516 Waukesha Co. DHHS v. Angela M.I.
  • 2007AP1517

Waupaca

  • 2006AP3067 Block v. Waupaca Co. Bd. Of Zoning Adj.
    Justice David T. Prosser did not participate.
  • 2007AP280-CR State v. Hoppa

Winnebago

  • 2006AP2521-CRNM State v. Wheeler
  • 2006AP3009 thru 2006AP3012 State v. Holly K.

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