The cases listed below will be heard in
the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar includes cases that originated
in the following counties:
Marathon
Washington
TUESDAY, DECEMBER 4, 2012
9:45 a.m.
10AP3034-CR - State
v. Kenneth M. Sobczak
10:45 a.m. {11AP1044-CR - State
v. Dale R. Neumann
{11AP1105-CR - State
v. Leilani E. Neumann
In
addition to the cases listed above, the following case is assigned for decision
by the court on the last date of oral argument based upon the submission of
briefs without oral argument:
11AP984-D - Office of Lawyer Regulation v. Timothy J.
Riordan
10AP1576-D - Office of Lawyer Regulation v. Jeffrey A.
Reitz
11AP1764-D - Office of Lawyer Regulation v. Jeffrey A.
Reitz
The Supreme Court calendar may change between
the time you receive these synopses and when the cases are heard. It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.
Radio
and TV, and print media wanting to take photographs, must make media requests
72 hours in advance by calling Supreme Court Media Coordinator Rick Blum at
608-271-4321. Summaries provided are not complete analyses of the issues
presented.
WISCONSIN
SUPREME COURT
TUESDAY,
DECEMBER 4, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Washington County Circuit Court
decision, Judge Patrick J. Faraghar, presiding.
2010AP3034-CR State
v. Sobczak
This case involves charges of
possession of child pornography and examines whether a temporary houseguest may
consent to a police search of a host’s home and a computer located inside.
Some background: Kenneth M.
Sobczak, an adult, lived with his parents.
While his parents were away on vacation, Sobczak invited a girlfriend to
stay with him at his house for the weekend.
She arrived on Friday evening and spent the night. Late in the afternoon
on Saturday, Sobczak left to go to work and she stayed at the house. Before Sobczak left, the girlfriend asked him
if she could use his laptop computer, as she had no transportation to leave the
residence and nothing to do while he was gone.
Sobczak agreed that she could use it during his absence.
After Sobczak left, the
girlfriend began using the computer. She said an error message appeared on the
screen, and she opened a file that contained a video showing two naked females,
who appeared younger than 18 years of age, engaged in sexual activity.
The girlfriend walked to a nearby
gas station and called her grandmother, who called the police. She then returned to the front porch of
Sobczak’s home, where she explained the situation to a police officer. The officer
told the girlfriend they either needed to go inside to view the video or she
needed to bring the laptop to him, whichever was more comfortable for her. The
girlfriend responded that they could go inside and that the laptop was on a
couch that was 20-30 feet inside the front door. The girlfriend then led the
officer into the residence and to the couch, where she showed the video to the
officer.
The officer seized the computer
and took it with him to the police department. Later that same evening, the
police obtained and executed a search warrant for the rest of the Sobczak
residence.
The state charged Sobczak with
possession of child pornography. Sobczak
filed a motion to suppress, claiming that his girlfriend had neither actual nor
apparent authority to give consent to a search of the Sobczak home.
The circuit court concluded that
as a guest of the Sobczak house, the girlfriend had actual authority to allow
the police to enter the home and to search Sobczak’s computer. After the circuit court denied the suppression
motion, Sobczak entered a no contest plea.
The Court of Appeals affirmed.
Although it acknowledged that a “mere guest in a home may not ordinarily
consent to a search of the premises,” the Court of Appeals stated that when
“the guest is more than a casual visitor” and has “the run of the house,” the
guest may consent to a search of the residence. The Court of Appeals concluded
that the girlfriend here had sufficient authority to consent to the police
entry into the Sobczak home. Further, the Court of Appeals concluded that
because Sobczak had given her express permission to use his laptop, the
girlfriend also had authority to consent to the officer’s search and seizure of
that particular item.
Sobczak contends the Court of
Appeals’ decision runs counter to the generally accepted rule that a temporary
guest may not consent to a search of the host’s home and to the Wisconsin
Supreme Court’s determination in State v. McGovern, 77 Wis. 2d 203, 252
N.W.2d 365 (1977) that there is no distinction between an entry into a home and
a search of the home by the police.
WISCONSIN SUPREME COURT
TUESDAY, DECEMBER 4, 2012
10:45 a.m.
This is
a certification from the Wisconsin Court of Appeals, District III
(headquartered in Wausau). The Court
of Appeals may certify cases that it believes cannot be resolved by applying
current Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Marathon County Circuit Court, Judge
Vincent K. Howard, presiding.
2011AP1044-CR/2011AP1105-CR State
v. Neumann
This certification involves
consolidated appeals that raise issues related to statutory construction,
constitutional rights and appropriate jury instructions for persons charged
with reckless homicide based on their choice to rely on prayer rather than
medical treatment for an ill child.
Some background: The defendants,
Dale and Leilani Neumann, were the parents of 11-year-old Madeline Kara
Neumann, who died from uncontrolled diabetes mellitus. Madeline had been showing symptoms of illness
for approximately two weeks before her death on March 23, 2008.
The emergency room doctor who
examined Madeline said hers was the most advanced case of juvenile diabetic
ketoacidosis (DKA) he had ever seen. The
doctors who testified at trial agreed that DKA is survivable, and the prognosis
for a still breathing DKA patient with a heartbeat is very good. One doctor who testified at trial said he
believed Madeline’s DKA was treatable and that her chances of survival were
high until well into the day of her death.
The Neumanns were both charged
with second-degree reckless homicide, contrary to § 940.06(1), which provides:
“whoever recklessly causes the death of another human being is guilty of a
Class D felony.” They claimed a statutory right under § 948.03(6), the child
abuse statute, and a constitutional right to substitute prayer for medical
treatment.
Two weeks before her death,
Madeline began experiencing fatigue, thirst, and frequent urination. Three days before her death, she would have
appeared generally healthy to a casual observer. On March 21, 2008, Mrs. Neumann noticed that
Madeline was very tired, but no one believed she was suffering from a serious
illness. On March 22, Madeline said she
was feeling tired. Mrs. Neumann told her
to stay home and rest rather than working at the family’s coffee shop. When Mrs. Neumann returned from work, she
noticed that Madeline’s legs were skinny and blue. Mrs. Neumann massaged Madeline’s legs, and
the Neumanns prayed over her. Mrs.
Neumann said she believed Madeline was under spiritual attack and that prayer
was the only answer.
The family enlisted help from
others to pray for Madeline. Dale
Neumann broadcasted an e-mail seeking emergency prayer and assistance from a
church elder. Neumann’s father
suggested using Pedialyte since Madeline seemed dehydrated, but Leilani Neumann
said, “That could be taking the glory from God.” The family believed Madeline’s health had
improved later that night because her breathing was easier and more regular and
her hands were warmer. On the morning of
March 23, Mrs. Neumann described Madeline’s condition as comatose and hanging
between life and death. At 1:30 p.m.,
Madeline’s parents expressed optimism about her prognosis but an hour later she
stopped breathing.
The defendants were convicted,
following separate jury trials, of one count of second-degree reckless
homicide. They were each sentenced to 10
years of probation, with six months in the county jail stayed. In addition, each parent was ordered to serve
30 days in jail during the month of March, every other year, for six years.
Both parents separately appealed,
asking for review on several issues, including due process rights, jury
instructions, effectiveness of counsel, and whether the statutory exemption for
faith healing applies.
The Neumanns argue jury
instructions negated the prayer treatment privilege granted by the child abuse
statute and that the instructions violated their constitutional right to direct
the medical care for their child. The
state reiterates that the prayer exception is not applicable to the homicide
statute and that the general right of parents to make decisions about their
children’s care does not prohibit the state from imposing a medical obligation
on a parent necessary to preserve a child’s life.
In certifying the case, the Court
of Appeals asks the Supreme Court, in part, “to determine the scope of the
prayer treatment exception and to inform trial courts regarding the appropriate
jury instructions when that exception is raised in a reckless homicide case.”