author: SNYDER, EJ. BROWN, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Brian Hibl, Defendant-Respondent.
    Court of Appeals

      No. 2004AP2936-CR.

      Submitted on briefs June 8, 2005.

      Decided September 28, 2005.

    2005 WI App 228
    (Also reported in 706 N.W.2d 134.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Ted S. Szczupakiewicz, assistant district attorney for Waukesha County, authorized and supervised by the attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Joel H. Rosenthal oí Luck & Rosenthal, S.C., Milwaukee.
    Before Snyder, PJ., Brown and Anderson, JJ.

       Petition to review granted 12-14-05.

   SNYDER, EJ.

¶ 1. The State appeals from an order suppressing the pretrial and in-court identification of Brian Hibl by Alan R. Stuller, a witness for the prosecution. The State contends that the circuit court erred in holding that the eyewitness identification of Hibl was impermissibly suggestive and unreliable. Although we employ a different analysis, we affirm the order of the circuit court.

FACTS

¶ 2. On June 25, 2002, at 2:53 p.m., Detective Lieutenant Steven Kukowski of the City of Muskego Police Department was driving southbound on Racine Avenue in the City of Muskego. Kukowski noticed a red pickup truck and a white van speeding northbound. He watched the two vehicles jockey for position as they traveled toward a portion of the road that narrows from two northbound lanes to one. He estimated that the two vehicles were going fifty miles per hour where the speed limit was thirty-five miles per hour. After the vehicles passed him, Kukowski continued to watch them in his rearview mirror and he observed the van pull ahead of the pickup truck. The pickup truck then pulled into the southbound lane, apparently attempting to pass the van. Then, although Kukowski did not see the actual collision, he suddenly noticed dust and vehicle parts in the air and saw that the pickup truck was spinning. The white van was no longer in sight.

¶ 3. Stuller witnessed the accident. Detective Paul Geiszler took a brief statement from Stuller at the scene and asked him to go to the police station to give a more complete statement. Stuller complied. At that time, Stuller identified the van driver as a white male; Stuller was unable to describe the driver in any other way. Stuller was not asked to make an identification of the van driver from any photo array or lineup procedure.

¶ 4. Two days later, Scott Anderson of Anderson Flooring, Inc. informed the police that one of his employees, Brian Hibl, reported witnessing the accident. Detective James Kaebisch interviewed Hibl and took a statement from him. Hibl told Kaebisch that he had been driving a white cargo van northbound on Racine Avenue on June 25 at approximately the same time the accident occurred. Kaebisch reported that at one point Hibl admitted that he did see the accident and may have been a contributing factor. Hibl told Kaebisch that he had accelerated at a high rate of speed going north on Racine Avenue and had increased his speed as a red pickup truck attempted to pass him.

¶ 5. The State charged Hibl with one count of causing great bodily harm to another by reckless driving contrary to Wis. Stat. § 346.62(4) (2003-04), and two counts of causing bodily harm by reckless driving contrary to § 346.62(3).

¶ 6. Prior to Hibl's November 18, 2003 trial date, Stuller received a subpoena to appear as a witness. On the day of trial, prior to commencement of the trial, Stuller identified Hibl in the hallway outside of the courtroom. He subsequently identified Hibl in the courtroom during the trial. Hibl moved for a mistrial, the State did not object, and the circuit court declared a mistrial.

¶ 7. Hibl then filed a motion to suppress the pretrial and in-court identifications made by Stuller. The circuit court held evidentiary hearings on June 4 and August 9, 2004, and granted Hibl's suppression motion. The State appeals.

DISCUSSION

¶ 8. We review a motion to suppress using a two-step analysis. See State v. Dubose, 2005 WI 126, 16, 285 Wis. 2d 143, 699 N.W.2d 582. First, we review the circuit court's findings of fact. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or historical fact unless they are clearly erroneous." Id. (citations omitted). Next, we independently review the application of relevant constitutional principles to those facts. Id. This review presents a question of law for our de novo review, but we benefit from the analysis of the circuit court. Id.

¶ 9. We begin with the circuit court's rationale for granting Hibl's suppression motion. The court used the analytical framework presented in State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), abrogated by Dubose, which requires a two-step analysis. First, the defendant must demonstrate that the pretrial identification occurred in an impermissibly suggestive manner. Id. at 264. If the defendant meets this burden, the State must then show that the identification was reliable despite the manner in which it occurred. Id.

¶ 10. Since the circuit court's order, our supreme court has revisited the Wolverton test. In Dubose, our supreme court provided a substantial history of the evolution of the relevant law and articulated the new legal standard to be applied in matters of pretrial witness identification. See Dubose, 699 N.W.2d 582, 17-27. It tracked, through several key cases, the United States Supreme Court's concern about the reliability of out-of-court identification evidence. The Dubose court explained:

After the Supreme Court's decisions in [Neil v. Biggers, 409 U.S. 188 (1972)] and [Manson v. Brathwaite, 432 U.S. 98 (1977)], the test for showups evolved from an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable.

Dubose, 699 N.W.2d 582, 31. Departing from Biggers and Brathwaite, and turning to Stovall v. Denno, 388 U.S. 293 (1967), as a guide, our supreme court stated:

[W]e now adopt a different test in Wisconsin regarding the admissibility of showup identifications. We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.

Dubose, 699 N.W.2d 582, ¶ 33 (footnote omitted). The supreme court further observed that "[s]tudies have now shown that... it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and identifications that were unreliable." Id., ¶ 31. Accordingly, our supreme court withdrew "any language in Wolverton ... and in cases cited therein, that might be interpreted as being based on the Wisconsin Constitution. Those cases were based on the United States Constitution and focused more on the reliability of the identification than on the necessity for a showup." Dubose, 699 N.W.2d 582, ¶ 33 n.9.

¶ 11. The question of necessity will only arise in situations where police procedure is involved. Hibl insists that the courthouse hallway encounter was not merely random chance, but occurred under circumstances suggesting a planned confrontation. He asserts that "[t]he State knew or should have know[n] that Stuller would confront Hibl either in or around the courtroom." Had the police or prosecutor arranged a confrontation, Dubose would require us to affirm suppression of the identification evidence because the State has not demonstrated that such a procedure was necessary.

¶ 12. The State argues that Stuller's courthouse encounter with Hibl was not the result of police or prosecutor action. The circuit court observed that "[t]here is no evidence that the police or District Attorney's office intentionally or unintentionally suggested the identification" of Hibl to Stuller. Based upon our review of the record, we accept the characterization of the encounter as free from police or prosecutor manipulation; in other words, it was an accidental confrontation. Consequently, the Dubose analysis regarding necessity is not applicable here.

¶ 13. The remaining issue is whether, in the absence of police involvement, Stuller's identification of Hibl was properly suppressed. "Preliminary questions concerning. .. the admissibility of evidence shall be determined by the judge ...." Wis. Stat. § 901.04(1). A circuit court may, at its discretion, exclude evidence that is unfairly prejudicial. Wis. Stat. § 904.03. A circuit court's decision to admit or exclude evidence is a discretionary determination and will not be upset on appeal if it has "a reasonable basis" and was made "in accordance with accepted legal standards and in accordance with the facts of record." State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983) (citation omitted).

¶ 14. Our supreme court has stated that proffered evidence must be "reliable enough to be probative." State v. Walstad, 119 Wis. 2d 483, 519, 351 N.W.2d 469 (1984) (citation omitted) (discussing the admissibility of expert opinion testimony). The supreme court turned to Stovall to demonstrate that the reliability of pretrial identifications is a question of admissibility, not credibility. Dubose, 699 N.W.2d 582, ¶ 17 n.3. "The overwhelming majority of American courts have always treated the evidence question not as one of admissibility hut as one of credibility for the jury. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel." Stovall, 388 U.S. at 299-300 (citation omitted; emphasis added).

¶ 15. Courts have split on the question of whether suppression of witness identification evidence must be predicated on pretrial police conduct or if suppression is appropriate following other types of confrontations also. "The majority of courts require that an allegedly suggestive pretrial encounter be the result of either police or prosecution action to have an effect on the admissibility of in-court identification. These courts reason that without government involvement there is no violation of a defendant's constitutional due process rights." Lynn M. Talutis, Annotation, Admissibility of In-Court Identification as Affected by Pretrial Encounter That Was Not Result of Action by Police, Prosecutors, and the Like, 86 A.L.R.5th 463, § 2(a) (2001). "Other courts have, however, done away with the government action requirement. These courts typically reason that the deterrence of police conduct is not the basic purpose for excluding identification evidence. Rather, it is the likelihood of misidentification that violates a defendant's right to due process." Id.

¶ 16. In Dubose, our supreme court aligned itself with the latter view, focusing on the likelihood of misidentification as the purpose for scrutinizing identification evidence. Dubose, 699 N.W.2d 582, ¶¶ 31-32. Although Dubose addressed a police showup procedure, concerns about misidentification are not limited to those situations where the police arranged the confrontation. Principles of fairness dictate that identification evidence, even absent police involvement, must be scrutinized to determine whether suppression is required. Here, the circuit court, citing Wolverton, considered the following factors in its rationale:

[1] the opportunity of the witness to view the [accused] at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of his [or her] prior description of the criminal, [4] the level of certainty demonstrated at the confrontation, and [5] the time between the crime and the confrontation. (Alterations added.)

It proceeded with the following analysis:

Mr. Stuller first identified the defendant in the hallway outside of the courtroom with approximately nine other people in the hallway; this occurred on the day Mr. Stuller knew he would see the alleged defendant.... Just prior to identifying the defendant, Mr. Stuller spoke with the police officer assigned to the case and to the Assistant District Attorney assigned to the case .... There is no evidence that the police or District Attorney's office intentionally or unintentionally suggested the identification of the Defendant to Mr. Stuller; however, Mr. Stuller's juxtaposition in the courtroom hallway with the ADA, anticipating the alleged defendant in court in a few minutes, constitutes an identification that occurred in an impermissibly suggestive manner....
Mr. Stuller observed the driver/defendant on June 25, 2002, from 50 feet away while he was traveling 35 to 40 miles per hour, and the driver/defendant was traveling toward him in a white van at a high rate of speed .... On the day of the alleged offense, Mr. Stuller could not identify the driver's facial features, height, weight, or whether or not he wore glasses .... Mr. Stuller could only identify the driver as a "white male." Mr. Stuller's identification of Defendant occurred fifteen months after he witnessed the incident.

¶ 17. The circuit court's rationale is sound. Proffered evidence must be "reliable enough to be probative." Walstad, 119 Wis. 2d at 519 (citation omitted). Because the circuit court's order to suppress was made in accordance with accepted legal standards applied to the record facts, we will not disturb it. See Pharr, 115 Wis. 2d at 342.

CONCLUSION

¶ 18. In Dubose, our supreme court turned the focus from the reliability of eyewitness identification to that of necessity in cases where police procedure is involved. Dubose, 699 N.W.2d 582, ¶ 33. Here, where necessity is not an issue, the only consideration left for the circuit court is that of reliability. The circuit court's analysis demonstrates that Stuller's courthouse hallway identification of Hibl was not rehable; therefore, we affirm the court's order granting Hibl's motion to suppress the pretrial and in-court identification evidence.

By the Court. — Order affirmed.

BROWN, J.

¶ 19. {dissenting). I disagree with the majority opinion for several reasons. First, I think it is essential that we establish what this case is about. This case regards the admissibility of an in-court identification following a pretrial encounter that did not result from government action. Thus, this case is different from those where the pretrial identification results from either a police or prosecution procedure such as a showup or a lineup or photo array. In shorthand, this is what the law calls an "accidental confrontation" or an unplanned or "spontaneous identification." See generally Lynn M. Talutis, Annotation, Admissibility of In-Court Identification as Affected by Pretrial Encounter That Was Not Result of Action by Police, Prosecutors, and the Like, 86 A.L.R.5th 463, § 14 (2001).

¶ 20. I understand the central position of the majority to be as follows: Other jurisdictions are divided about whether accidental identifications may be deemed inadmissible as a matter of law. Most courts adhere to the proposition that, without government involvement, there is no "suggestive procedure" used to obtain an identification; since there is no "procedure," there can be no state-sponsored manipulation which may affect the reliability of the identification. Thus, the law does not need the circuit court to act as "gatekeeper" on the question of manipulation prior to testimony before the trier of fact. Rather, it is for the trier of fact, usually a jury, to assess the reliability of the spontaneous identification. A minority of courts have held that police conduct is not the basic purpose for excluding identification evidence. Rather, it is the likelihood of misidentification that violates a defendant's right to due process. Therefore, circuit courts possess gatekeeper responsibility to assess the reliability of the spontaneous identification, just as they have similar responsibility with regard to state-sponsored identification procedures. The majority concludes that, in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, our supreme court sided with the minority view.

¶ 21. I take issue with the majority's expansive interpretation of Dubose. I read Dubose as being limited to the context of pretrial showups, thus leaving prevailing rules intact with respect to other pretrial encounters. One of those prevailing rules, not even acknowledged by the majority, is the rule announced in State v. Marshall, 92 Wis. 2d 101, 117-18, 284 N.W.2d 592 (1979), abrogated on other grounds by State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981), superceded in part by statute, 1995 Wis. Act 440. In Marshall, our supreme court first reiterated the two-part test that existed at the time to determine admissibility of identification evidence under federal due process standards. First, the courts were to decide whether the confrontation procedure was unnecessarily suggestive. Marshall, 92 Wis. 2d at 117. If so, then they were to turn to whether the evidence was nonetheless reliable. Id. Only when the pretrial encounter was both unnecessarily suggestive and unreliable did the court exclude the evidence. Id.

¶ 22. Of particular importance to this case, the Marshall court then made clear that when the government has not deliberately employed a suggestive tech-ñique in order to obtain an identification, the two-part test is inapplicable. The court stated:

Before this [two-part] analysis is applied ... it must first be determined whether the confrontation was deliberately contrived by the police for purposes of obtaining an eyewitness identification of the defendant. [Stovall v. Denno, 388 U.S. 293 (1967)], [Neil v. Biggers, 409 U.S. 188 (1972)] and [Manson v. Brathwaite, 432 U.S. 98 (1977)]... all involved planned confrontations between a suspect and a supposed witness to a crime orchestrated by the police for the sole purpose of having the witness identify the suspect as the perpetrator of that crime .... Where the confrontation is not part of a police procedure directed toward obtaining additional evidence, but occurs as a result of mere chance or for some other reason not related to the identification of the defendant, the rule announced in those cases does not apply.

Marshall, 92 Wis. 2d at 117-18 (emphasis added). By definition, the State does not design or "deliberately contrive" accidental and unplanned confrontations. Thus, when faced with an allegedly suggestive encounter between an identification witness and the defendant, Marshall requires, as a condition precedent, that we first determine whether the relevant actor was a government actor. Marshall cited Jones v. State, 63 Wis. 2d 97, 216 N.W.2d 224 (1974), and State v. Brown, 50 Wis. 2d 565, 185 N.W.2d 323 (1971), overruled on other grounds by State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990), as examples of cases in which, although the circumstances were suggestive, the court nonetheless upheld the use of identification testimony derived from an unplanned confrontation. Marshall, 92 Wis. 2d at 118.

¶ 23. In my view, Marshall controls this case and indeed is factually similar. In that case, a neighbor gave a man directions to the victim's apartment and later heard an argument and gunshots coming from that direction. Id. at 108-09. The victim had been murdered. Id. Although the neighbor was unable to pick out the man to whom he gave directions from a photo array, the State still considered him to be an important witness and subpoenaed him to testify at Marshall's trial. Id. at 109, 118. Before the case was called, the neighbor observed the man to whom he had given directions. Id. at 119. The man was one of several seated in the courtroom and was sitting with a woman roughly three rows ahead of him. Id. Nobody had asked the neighbor to make an identification or suggested that the man was the defendant. Id. The neighbor summoned a detective into the courthouse hallway and told him that he recognized the man who had come to his door on the night of the murder. Id. The supreme court held that the use of the pretrial identification was admissible because it was unplanned and "was as much a surprise to the State as it was to the defendant." Id. at 118.

¶ 24. Here too, the witness, Stuller, appeared pursuant to a subpoena to testify about matters other than the defendant's identity. The record does not reveal that anybody asked Stuller to identify Hibl. Nor is there any evidence that either the police or the assistant district attorney suggested that Hibl was the defendant. Rather, Stuller spontaneously identified Hibl among several people he saw in the hallway. Of particular importance, the trial court found that "there is no evidence that the police or District Attorney's office intentionally or unintentionally suggested the identification of the Defendant to Mr. Stuller." Indeed, the circumstances surrounding Stuller's identification were, if anything, probably less suggestive than the identification made in Marshall because there, the neighbor had seen Marshall's face in the photo array at some point before. Here, however, nothing suggests that Stuller had ever seen Hibl's face anywhere prior to the trial date — except perhaps in the white van he observed on the day of the accident.

¶ 25. We are bound by prior decisions of the supreme court unless or until those prior decisions are overruled by that court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). The Dubose holding in no way overruled Marshall. In fact, Marshall is never mentioned in Dubose.

¶ 26. The Dubose opinion must be limited to "showups." Reading the opinion, it is quite evident that the Dubose majority disapproved of the widespread use of state-sponsored showups because of their "inherent unreliability" and set out to do something about it. Basically, the court held that the State may not use a showup as a procedure for obtaining an identification of a defendant if there are other, fairer means available to obtain the identification. In pertinent part, the Dubose majority wrote:

[W]e now adopt a different test in Wisconsin regarding the admissibility of showup identifications. We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification.

Dubose, 699 N.W.2d 582, ¶ 33 (emphases added; footnote omitted). Thus, with respect to showups, the court changed the test in state-sponsored identification procedures. The Dubose test is limited, by its very words, to showups.

¶ 27. Indeed, the rationale Dubose gave for the newly announced rule in showup cases further supports the notion that it left Marshall intact. It stated that its strict necessity requirement helps "ensure that the police would take precautions when considering the use of a showup," a procedure the court deemed "inherently suggestive." Dubose, 699 N.W.2d 582, ¶¶ 32-33 (emphasis added). Both parts of that rationale are inapposite to unplanned encounters. First, it would be absurd to announce a categorical rule that accidental encounters are "inherently suggestive." Second, I do not see how the courts could reasonably expect the State to guard against unplanned encounters. Even if the courts were to impose such a duty with respect to only unplanned confrontations factually similar to the one here, I cannot envision any logical stopping point to the rule. I can think of no standard that logically distinguishes among encounters in a courtroom or courthouse hallway and those that occur outside the courthouse, in a donut shop across the street from the courthouse, or at an intersection just blocks away from the courthouse. I simply cannot believe that Dubose provides authority for courts to prohibit identifications made based on fortuity.

¶ 28. Although the majority appears to acknowledge in one breath that the Dubose analysis does not apply, see majority op. ¶ 12, in the next it relies on Dubose as authority for allowing courts to independently assess the reliability of even unplanned encounters. I acknowledge it to be true that the Dubose majority opinion did discuss the extensive studies conducted on the issue of identification evidence and did comment how the research supports the conclusion that eyewitness identification is now the greatest source of wrongful convictions in the United States and is responsible for more wrongful convictions than all other causes combined. See Dubose, 699 N.W.2d 582, ¶ 30. But it is unwarranted for the majority in this case to make the leap that the Dubose court was implementing a new rule allowing trial courts to exercise gatekeeper responsibility with regard to all identifications. One need only look at the Dubose court's language to determine that this is not the case. The Dubose court, in referring to the recent studies, said that "[i]n light of such evidence," it was changing its approach in the area of "suggestive procedures." See id., ¶ 31 (citation omitted). To read Dubose to say anything more than that is grave error.

¶ 29. This point brings me to my next complaint about the majority opinion. The majority appears to assert, either as an alternative argument or as a means to buttress its Dubose interpretation — I am not sure which — that this case is merely a review of the circuit court's exercise of discretion in deciding not to admit this identification evidence. The majority seemingly claims that, under Wis. Stat. § 901.04, the trial court in this case and, by extension, any circuit court in this state, has the authority to keep evidence out if it deems the evidence to be unreliable. Therefore, even if this is not a police procedure case, since the circuit court in this case relied on the facts of record and gave a reasoned explanation for why it believed the spontaneous identification to be impermissibly suggestive, the majority feels that we must defer to this judgment and affirm. In my view, this is a serious misunderstanding of the law.

¶ 30. First, I need to state the obvious. The circuit court kept the evidence out because it thought that the spontaneous encounter was "impermissibly suggestive." As I have already explained, the only time a court considers whether an identification was "impermissibly suggestive" is if the suggestiveness was brought about by state action. That is what Marshall holds. A court does not validly exercise discretion based on a misunderstanding of the law and that is what has occurred here. As the court in Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986), stated, if the procedures are not impermissibly suggestive, independent reliability is not a constitutionally required condition of admissibility and the reliability of the identification is simply a question for the jury. The circuit court thus had no business deciding this case under the rubric of an "impermissibly suggestive" procedure.

¶ 31. Second, what the majority fails to understand is that the usual role of the circuit court is to act as only a limited gatekeeper with regard to admissibility issues. Only when due process concerns come into play has our jurisprudence given circuit courts a greater gatekeeping function. As we wrote in State v. Peters, 192 Wis. 2d 674, 689, 534 N.W.2d 867 (Ct. App. 1995), the role of trial judges is "oblique." Certainly, evidence must be relevant to be admissible. And just as certainly, someone must have the job of deciding whether the evidence is admissible. This is the job of the circuit court. The circuit court must determine under Wis. Stat. § 904.01 only whether there is "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (emphasis added). This is an extremely low threshold. If relevant, the circuit court still has the authority to exclude the evidence for other reasons, including, to name a few, statutory considerations such as hearsay, the superfluous nature of the evidence, waste of judicial time and resources, or the court's determination that the evidence is inherently improbable or that its probative value is outweighed by its prejudice to the defendant. See Peters, 192 Wis. 2d at 689. Once these considerations have been analyzed by the circuit court, the limited gatekeeper role is finished. As Professor Blinka has stated, "If the evidence has any tendency to prove (or disprove) a consequential proposition, it should be admitted." Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 401.102 (2d ed. 2001). The weight of such evidence is for the trier of fact. See id.

¶ 32. But there are certain areas of the law where our supreme court has given circuit courts more responsibility. One such area is where identification was made pursuant to a specified police procedure. State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), abrogated by Dubose, 699 N.W.2d 582 (new test applicable to showup procedures), is a case in point. There, our supreme court recognized that certain police identification procedures might be orchestrated or manipulated by the State. See Wolverton, 193 Wis. 2d at 264. If such manipulation and orchestration by the State is shown to be present, it may seriously affect the credibility of the identification. To test the state procedure, the court directed circuit courts to exercise the power to assess (1) the witness' opportunity to view the criminal at the time of the offense, (2) the degree of attention the witness paid, (3) the accuracy of prior descriptions, (4) the time elapsed between the crime and the confrontation, and (5) the level of certainty demonstrated at the confrontation. Id. at 264-65. In sum, the supreme court expressly authorized greater gatekeeping authority in this area.

¶ 33. It is my view that because Marshall does not employ this kind of reliability test in the context of an unplanned encounter, the State need only meet the very low threshold test for reliability that Wis. Stat. § 904.01 requires all types of evidence to meet. Nothing in the circuit court's analysis or the facts convinces me that Stuller's identification of Hibl had no tendency whatsoever to support the proposition that Stuller recognized Hibl as the individual who drove the van on the day of the accident. What the circuit court's opinion really does is call into question any identification made in the halls of our courthouses, no matter how spontaneous and free from police or prosecutorial suggestion it may be. I cannot abide by this result and dissent.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We note that the circuit court suppressed both the pretrial and in-court identification evidence offered by the State. The State offered no independent basis for Stuller's in-court identification of Hibl; therefore, if the pretrial identification was tainted, the in-court identification was properly suppressed. See State v. Mosley, 102 Wis. 2d 636, 652, 307 N.W.2d 200 (1981) ("where a subsequent ¿«-court identification is also challenged as tainted by the prior one, the state must show the in-court identification derives from an independent basis").

       "A showup will not be necessary. .. unless the police lacked probable cause to make an arrest or ... could not have conducted a lineup or photo array." State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, ¶ 33, 699 N.W.2d 582. Here, Hibl's own statement, together with the testimony of the police detectives, established probable cause for his arrest. Detective Kaebisch acknowledged that he never arranged a lineup or presented a photo array to determine whether Stuller could identify Hibl. By way of explanation, Kaebisch stated that Stuller's statement on the day of the accident gave no indication that Stuller had any ability to identify the driver of the white van. He stated that he looked at Stuller's statement and could not "see where any additional follow-up would be required."

       The supreme court cited several studies that document the problems associated with eyewitness identification evidence. Dubose, 699 N.W.2d 582, ¶ 29.

       Referencing Samuel H. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt, 16 J. Legal Stud. 395, 435 (1987), one commentator observed that
      [c]ourts have struggled with the question of whether to engage in exclusion when, by chance, an eyewitness encounters or sees the defendant. Professor Gross calls this a "spontaneous identification," and in his study he found "many reported misidentifica-tions originated in this manner," but he was chagrined that persons writing about identification procedures had failed to acknowledge these are prone to errors, and had instead credited their reliability.
      Margery Malkin Koosed, The Proposed Innocence Protection Act Won't — Unless It Also Curbs Mistaken Eyewitness Identifications, 63 Ohio St. L.J. 263, 300 (2002).

        See, e.g., Commonwealth v. Jones, 666 N.E.2d 994, 1000-01 (Mass. 1996) (holding that although no governmental action contributed to the eyewitness identification and no due process rights were implicated, fairness required preclusion of the evidence); People v. Walker, 411 N.Y.S.2d 156, 159 (N.Y. County Ct. 1978) (holding that identification process conducted by nonpolice is subject to the same reliability and suggestiveness analyses as those traditionally imposed on procedures conducted by law enforcement personnel).

      In State v. Brown, 50 Wis. 2d 565, 185 N.W.2d 323 (1971), overruled on other grounds by State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990), police had summoned the witness to the safety building to identify the defendant. Id. at 567. But before the police procedure could take place, the witness observed the defendant emerging from an elevator in the company of police officers. Id. at 567, 571. She identified the defendant immediately. Id. at 571. Jones v. State, 63 Wis. 2d 97, 216 N.W.2d 224 (1974), involved similar facts. Police were guiding the defendant to the district attorney's office when the victim, who was sitting in the corridor with a detective, observed the group. Id. at 101. The victim identified the defendant at that time. Id. In both cases, the court reasoned that these identifications were unplanned and spontaneous. See id. at 101-02; Brown, 50 Wis. 2d at 570.

       Even in light of recent data calling into question the veracity of some spontaneous identifications, I see no great problem in continuing to allow the juries to test the credibility of this type of identification rather than leave it to the circuit courts. It bears repeating that "[c]ross-examination has been described as the 'greatest legal engine ever invented for the discovery of truth.'" State v. Stuart, 2005 WI 47, ¶ 26 n.7, 279 Wis. 2d 659, 695 N.W.2d 259 (quoting California v. Green, 399 U.S. 149 (1970). The solution is to allow defendants greater latitude in bringing this data, and the expert witnesses who can testify to this data, to the attention of the jury. In the past, circuit courts have been reluctant to allow such evidence by defendants. But, should that change, juries would be well equipped to decide the credibility of these identifications.


source: Caselaw Access Project

author: CURLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. George Toland Ziedonis, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2888-CR.

      Submitted on briefs August 30, 2005.

      Decided October 4, 2005.

    2005 WI App 249
    (Also reported in 707 N.W.2d 565.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and William C. Wolford, assistant attorney general.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review denied 1-20-06.

   CURLEY, J.

¶ 1. George T. Ziedonis appeals from the judgment of conviction entered after he pled guilty to one count of possession of a firearm by a felon, contrary to Wis. Stat. § 941.29(2), and one count of manufacture of a controlled substance, tetrahydrocan-nabinols (marijuana), contrary to Wis. Stat. §§ 961.14(4)(t) and 961.41(l)(h)2. Ziedonis contends that in denying his motion to suppress evidence that police discovered after a warrantless entry into his home, the trial court incorrectly concluded that the officers' warrantless entry was lawful under the community caretaker exception. Because we conclude that the entry was proper under the community caretaker exception, we affirm.

I. Background.

¶ 2. On December 23, 2003, at approximately 2:00 a.m., Officers Brian Matte and Hector Sosa of the Milwaukee Police Department were dispatched to 2621 South 6th Street in the City of Milwaukee to back up another squad on a loose animal complaint. When the officers arrived at the scene, they observed two aggravated Rottweiler dogs that were running loose and chasing people around.

¶ 3. At least six officers tried, unsuccessfully, to corral the dogs using dog snares, for about an hour-and-a-half. Officer Matte testified that the dogs were "pretty vicious," and that although they did consider shooting them, they opted not to because "they appeared to be someone's pet[s]." A representative from the Milwaukee Area Domestic Animal Control Commission (Animal Control) testified that the organization handles stray and lost animals in Milwaukee County, takes calls from the Milwaukee Police Department on a daily basis, and would have been available to corral the two dogs on the night in question. When asked by the defense why the officers did not attempt to contact Animal Control, Officer Matte stated that he did not believe the service operated after midnight, and that in his four years at the Milwaukee Police Department, out of more than seventy-five animal complaints to which he has responded, he has never succeeded in getting Animal Control to come to his and his colleagues' aid.

¶ 4. Officer Matte spoke with Brenda Sanders, the caller who had alerted police, who informed him that the dogs belonged to the person who lived in the back portion of the house at 2621 South 6th Street. While still trying to corral the dogs, Officer Matte and the other officers set out to find the dogs' owner. The officers believed someone was inside 2621 South 6th Street because all the lights were on, and because one of the officers had been informed that a man, believed to be the lawful occupant, was there. Having learned that someone was expected to be inside, the officers made numerous attempts to contact the occupant. These attempts included having the sirens and air horns on, and using a loud speaker to identify themselves as Milwaukee police and to request the occupant's help with the dogs. The loud speaker was so loud that it attracted the attention of neighbors, but the officers nonetheless did not receive a response from the occupant. The officers were unable to knock on the door or ring the doorbell because, had they approached the house, the dogs would have attacked.

¶ 5. The back portion of 2621 South 6th Street had a back door that could be seen from the alley behind the house. The hack door consisted of a see-through glass storm door and an interior door. The interior door was open into the residence approximately four inches. Officer Matte told the court that when he saw the door ajar he thought "there was possibly something wrong with the person inside ...Between an hour and an hour-and-a-half after he arrived at the scene, Officer Matte eventually made his way to the back door without the dogs noticing. He testified that at this point, before entering the house, the specific facts that the lights were on, that there was an open door, that the residence was in a high-crime area, and that there had been no response despite numerous attempts, even though it looked like someone was living there, made him "fear[] for the[] safety" of the occupant. Officer Matte then opened the unlocked storm door, entered, and closed the storm door behind him to prevent the dogs from getting in. Standing by the interior door, for over two minutes, yelling as loud as he could, Officer Matte announced himself as the police, asked anyone inside to come to the door, and asked for help with the dogs. The entire time he was knocking on the door frame with his metal baton.

¶ 6. After he still did not receive a response, Officer Matte proceeded into the residence to look for signs of a struggle. He found himself in a kitchen area and observed a handgun on the kitchen table. With his service weapon unholstered, Officer Matte proceeded through the rest of the first floor to look for someone in need of help, or a body. Continuing to announce his presence as loud as he could, he started to walk upstairs, but before making it to the second floor he noticed an assault rifle and a pile of ammunition on a couch. Upon seeing the rifle, Officer Matte returned outside, and soon reentered more heavily armed and accompanied by two other officers.

¶ 7. Announcing their presence, the officers walked up to the second floor, into what appeared to be a living room area, and noticed drug paraphernalia in the form of glass pipes. The officers entered a bedroom and found numerous marijuana plants, as well as grow lights hanging from the ceiling and drug paraphernalia, including a scale and timers. Lastly, the officers entered another bedroom and saw a bed and what "looked like a body wrapped up in a blanket laying on the bed motionless." Announcing his presence, Officer Matte kicked the bed, hoping to get a reaction, but received none. He then pulled the blanket off the person and saw Ziedonis staring at him, conscious and fully awake. The room also contained a number of prescription drugs, as well as a marijuana pipe, all in plain view.

¶ 8. Having realized that Ziedonis was conscious, Officer Matte asked him about the dogs, and Ziedonis replied that they were downstairs. The officers stood Ziedonis up, walked him to the back of the house and asked him to help corral the dogs. He did and placed the dogs in a bathroom. Ziedonis was then arrested.

¶ 9. On December 27, 2003, Ziedonis was charged with one count of possession of a firearm by a felon, contrary to Wis. Stat. § 941.29(2), and one count of manufacture of a controlled substance, tetrahydro-cannabinols (marijuana), more than four but not more than twenty plants, contrary to Wis. Stat. §§ 961.14(4)(t) and 961.41(l)(h)2.

¶ 10. Later, Ziedonis filed a motion to suppress the admission into evidence of "any and all testimony concerning the guns and drugs, the discovery of the guns and drugs, and the discovery of anything within the defendant's residence[,]" on grounds that such evidence was the result of an unlawful invasion, search and seizure in violation of both the United States and the Wisconsin Constitutions. The trial court denied the motion and instead found that the officers lawfully entered the premises because their actions were in accordance with the community caretaker exception to the warrant requirement, and that all the drugs and evidence were in plain view, and thus properly subject to seizure.

¶ 11. On May 11, 2004, Ziedonis pled guilty to both counts. On the felony possession of firearm count, he was sentenced to sixty-three months' imprisonment, comprised of twenty-seven months of initial confinement, followed by thirty-six months of extended supervision. On the manufacture of controlled substance count, he was sentenced to forty-two months' imprisonment, comprised of eighteen months of initial confinement, followed by twenty-four months of extended supervision. The court ordered the two sentences to be served concurrently. This appeal follows.

II. Analysis.

¶ 12. In reviewing the denial of a motion to suppress, this court will uphold the trial court's findings of fact unless they are clearly erroneous. See State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). The application of constitutional principles to the facts is a question of law, and we decide it de novo without deference to the trial court's decision. See State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992).

¶ 13. The Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution both protect against unreasonable searches and seizures. See U.S. Const, amend. IV; Wis. Const, art. I, § ll. However, even though "war-rantless searches are per se unreasonable under the fourth amendment," they are "subject to a few carefully delineated exceptions" that are " 'jealously and carefully drawn.1" State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983) (citation omitted).

¶ 14. One such exception is the community caretaker function, which arises when the actions of the police are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct. App. 1987), rev'd on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). To determine whether a particular activity qualifies under the community caretaker exception, the following three-step test must be used: (1) whether a search or seizure, within the meaning of the Fourth Amendment, has taken place; (2) if the Fourth Amendment is implicated, whether "the police conduct was bona fide community caretaker activity;" and (3) if the conduct was bona fide community caretaker activity, "whether the public need and interest outweigh the intrusion upon the privacy of the individual." Id. at 169. In evaluating the third factor, the following four considerations should be taken into account: "(1) the degree of public interest and exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished." Id. at 169-70 (footnotes omitted).

¶ 15. The State bears the burden of proving that the community caretaker exception applies. See Bog-gess, 115 Wis. 2d at 449. This court has cautioned against taking a too-narrow view in determining whether the community caretaker function is present:

An officer "less willing" to discharge community care-taking functions implicates seriously undesirable consequences for society at large: In that event, we might reasonably anticipate "the assistance role of law enforcement ... in this society will go downhill.... The police cannot obtain a warrant for ... entry. [Without a warrant, the police are powerless. In the future police will tell such concerned citizens, 'Sorry. We can't help you. We need a warrant and can't get one.'"

State v. Horngren, 2000 WI App 177, ¶ 18, 238 Wis. 2d 347, 617 N.W.2d 508, (quoting People v. Ray, 981 P.2d 928, 939 (Cal. 1999)) (alterations and omissions in original).

¶ 16. The parties do not dispute the trial court's finding that a seizure, within the meaning of the Fourth Amendment, occurred, thus satisfying the first factor. See Anderson, 142 Wis. 2d at 169. On appeal, Ziedonis does not appear to challenge the officers' actions once inside the residence, particularly after Officer Matte observed the handgun, or that the evidence was in plain view; rather, he asserts that the entry was unlawful. We therefore limit our analysis to addressing only the propriety of the initial entry.

¶ 17. The parties also do not dispute the trial court's finding that the police were engaged in a bona fide community caretaker activity when Officer Matte approached the house because "it was for the purpose, first of all, to determine whether there was something wrong with someone in the house," thus satisfying the second factor. See id. at 169. Our inquiry therefore proceeds to the third step of the Anderson test: whether the public need and interest outweigh the intrusion upon Ziedonis's privacy, which requires a balancing of the four considerations outlined in Anderson. See id. at 169-70.

¶ 18. Case law provides guidance in the application of the balancing test. State v. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998), involved a war-rantless entry into a home that did not fall under the community caretaker exception. The case arose after a neighbor reported a possible burglary after observing some suspicious activity, including someone moving from room to room, lights being turned on and off, an open garage door, and an unanswered phone call. Id. at 529-30. The incident occurred at 5:25 p.m., which the court noted was an unusual time for a residential burglary. Id. at 535. Shortly after arriving at the scene, after an unsuccessful attempt to call the house, and without first trying to get a response by knocking, the officers opened a closed, yet unlocked, door. Id. at 530. The officers entered the residence, announced their presence, and then systematically checked each room, which led to them find marijuana plants in one them. Id. A young girl, who later appeared, was present during the entry. Id. The court found that these facts were insufficient to "reasonably suggest[] criminal activity or the need for police intrusion into the residence to protect the property." Id. at 535.

¶ 19. The community caretaker exception, likewise, was held not to apply in State v. Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997). The case involved an early morning noise complaint where police encountered, and took into custody, an intoxicated teenager. Id. at 655. When police asked whether an adult who could care for him was present and the teenager offered to retrieve his older brother, the police did not allow the teenager to do so alone. Id. at 655-56. Thfe teenager reluctantly let the officer in and led the officer to his brother's bedroom door. Id. at 656. The door was closed and loud music was playing. Id. After knocking a few times and receiving no response, the officer entered the bedroom and found the older brother in bed, naked, with a juvenile girl. Id. The court concluded that once inside the residence the officer was no longer acting as a community caretaker, because by then the teenager was already in custody, but went on to state that even if he had been, the entry was not reasonable because he never attempted to contact the brother from the outside, by, for instance, ringing the doorbell. Id. 660-61.

¶ 20. In State v. Ferguson, 2001 WI App 102, 244 Wis. 2d 17, 629 N.W.2d 788, by contrast, the community caretaker exception did apply. The case involved a 911 call about a fight at an apartment building at about 10:15 p.m. Id., ¶ 2. Upon arrival, the officers were let in by an intoxicated juvenile, and upon entering they found another juvenile who was highly intoxicated, ill and vomiting. Id., ¶¶ 3-4. One bedroom was locked from the inside, and the officers became concerned that there could be more equally intoxicated juveniles in that room. Id., ¶ 5. After yelling and knocking on the door for about thirty minutes, the officers jimmied open the door, entered the room and found marijuana plants. Id.

¶ 21. In concluding that the reasons for entry outweighed Ferguson's privacy rights, the court rejected Ferguson's argument that Dull was on point and instead distinguished the case:

[T]he police actions and circumstances here differ in several respects from those found in Dull. Unlike the facts in Dull, where the police entered the house almost immediately after discovering an underage drinker in the driveway of his house and found Dull engaged in a sex act with a minor, here the police utilized alternative methods of confirming whether anyone was in the room before entering. They took the trouble to call Ferguson's employer to locate him, and then they yelled and knocked for approximately thirty minutes. In Dull, the police made no attempts at contacting the underage drinker's mother, nor did they attempt to phone the house... .
However, the biggest distinction between the cases lies with the fact that the police in Dull were not faced with an emergency such as occurred here. Unlike the facts in Dull, the police here never stepped out of their caretaking role. Although consuming alcoholic beverages by a minor occurred in both cases, the police in this case did not know the number of people present in the apartment or their physical condition. Thus, the situation here was fluid where the situation in Dull was concluded with the detention of the juvenile.. . .

Id., ¶¶ 21-22. In denying Ziedonis's motion to suppress, the trial court also considered the above cases and concluded that "the facts in this case are more aligned with the Ferguson case, rather than Patterson [sic] or Dull."

¶ 22. We begin by addressing the first two factors of the Anderson test: the degree of public interest and exigency of the situation; and the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed. We discuss these two factors together, because under the facts of this case they are interrelated.

¶ 23. Ziedonis argues that the degree of public interest and exigency, and the attendant circumstances, do not weigh in favor of justifying the officers' entry under the community caretaker exception, because the officers did not have sufficient reason for concern about him to justify entry. Citing Dull, he argues:

Dogs have been known to escape from their houses while their owners were sleeping or were away. Many people are heavy enough sleepers not to hear dogs escape. The failure to wake up, even for sirens and loudspeakers, does not in itself suggest anything is wrong. The mere presence of the dogs outside did not in itself suggest that something was wrong at the Ziedonis home. The open door, rather than suggesting a problem inside, instead suggests that, during the night, the dogs somehow worked the door open or the door simply was not secured as well as it should have been.
At the time Officer Matte entered the home, all he knew was that it was late at night when people could be sleeping, that the dogs were out, that some neighbor or relative believed that Mr. Ziedonis was at home, that inside lights were on, and that Mr. Ziedonis had not responded to the noise of sirens or loudspeakers.

In his reply, addressing the fact that the area was considered high-crime, he adds that in a "high-crime neighborhood, sirens [are] not unusual. People accustomed to sirens are likely to sleep through sirens."

¶ 24. Ziedonis also adamantly contends that this case is analogous to, and should be controlled by, Paterson. Specifically, he asserts that the facts in both cases are similar in that: the police entered a home out of a concern for the occupants; it was dark outside; lights were on inside; there were no signs of forced entry; the police announced their arrival but received no response; and there actually was someone in the house. See Paterson, 220 Wis. 2d at 529-30. On this basis, Ziedonis argues that the instant case is different from Ferguson, and maintains that the trial court's reliance on Ferguson was mistaken. In particular, he claims that Ferguson is inapplicable because it differs from his facts because in Ferguson: the police were initially let into the apartment; there was underage drinking; someone who had recently spoken with the occupant told police that someone was inside; and the officers did not have their guns out or use their batons. See 244 Wis. 2d 17, ¶¶ 2-5.

¶ 25. The State, by contrast, counters that "[a] concern about the safety and well-being of an individual is certainly a matter of significant public interest and efforts to address such concern is one of great exigency," and that "[a]t every step of the way, the police tried to avoid entering the house while still addressing the concerns that they had [and] acted reasonably under the attendant circumstances." In response to Ziedonis's contention that Paterson should control this case, the State asserts that Paterson is distinguishable because unlike this case, in Paterson: the police responded to a call about a possible burglary at an unusual time; the incident occurred in an area not known as high-crime; the garage door, not the door to the residence, was open; the officers appeared to have made a quick decision to enter the residence, instead of first trying to attract the attention of the occupant; and the police seemed mostly concerned about protecting the property of the residents from burglars and appeared to have assumed that the residents were not present. See 220 Wis. 2d at 529-30.

¶ 26. We disagree with Ziedonis and decline to conclude that the situation here is analogous to Pater son or Dull, and instead agree with the trial court that it is more akin to Ferguson.

¶ 27. Like in Ferguson, the police "utilized alternative methods of confirming whether anyone was in the [residence] before entering." 244 Wis. 2d 17, ¶ 21. In fact, it appears as though the officers did everything they could to avoid entering the house. While simultaneously making efforts to corral two vicious dogs, the officers made numerous attempts to contact who they believed to be the owner of the dogs and who they had been told was present in the residence. The officers' efforts to get the attention of the occupant from outside, before anyone approached the house, included the use of sirens and air horns, and identifying themselves over the loud speaker as Milwaukee police - efforts so loud that they attracted the attention of neighbors. While at the door and upon entering the residence Office Matte continued to try to get the attention of the occupant by yelling as loud as he could and by knocking on the door frame with his baton. In Paterson, by contrast, the only way in which police officers announced their arrival before entering was one unsuccessful phone call, and not until they were already inside did the officers actually announce their presence. See 220 Wis. 2d at 530. In Dull, the police likewise failed to first try to contact the older brother from outside the residence. See 211 Wis. 2d at 660-61.

¶ 28. Regarding the amount of time that passed, much like Ferguson, where police waited for approximately half an hour before entering, the police here too gave Ziedonis more than enough time, indeed as much as an hour-and-a-half, to appear before entering. See 244 Wis. 2d 17, ¶ 5. Conversely, in Paterson, the officers appeared to have entered after finding out that there was no answer to a phone call. See 220 Wis. 2d at 530.

¶ 29. Most importantly, this case is also analogous to Ferguson in that the officers' fear for the safety of the occupant was like the officers' concern for the intoxicated teenagers in Ferguson, because in both cases the officers did not know the physical condition of the person and reasonably concluded that the situation was an emergency. See 244 Wis. 2d 17, ¶ 22. Hence, like the officers in Ferguson, and unlike the officers in Dull, the officers here never stepped out of their community caretaker function. See Ferguson, 244 Wis. 2d 17, ¶ 22. Contrary to Ziedonis's contention that the officers did not have sufficient reason for concern, we believe it was reasonable for the officers to conclude that there was a serious concern for the safety of the person inside. The officers' observation that the back door to the residence was open at 2:00 a.m. clearly concerned them and made them feel as though there could be something wrong with the person inside. Not only did the officers face a situation where they had received no response from the occupant, even though They had reason to believe someone was present, and despite all of their attempts, the events also transpired in the early morning hours, in a high-crime area, by a residence where a door was open and the lights were on, and where the occupant's dogs were running loose in the neighborhood. The situation was hence decidedly different from Paterson where the incident took place in the afternoon, in an area not considered high-crime, and where the only indication that something could be wrong was a vague phone call from a neighbor. See 220 Wis. 2d at 529. Adding to the inapplicability of Paterson, as the State points out, in Paterson the suspicion that a burglary was in progress implied only a concern for the property inside, whereas here the concern was about the physical well-being of the occupant. See id. at 530.

¶ 30. Based upon the foregoing, we conclude that both the degree of public interest and exigency of the situation, and the attendant circumstances surrounding the seizure, weigh in favor of concluding that the police were acting in the community caretaker role. See Anderson, 142 Wis. 2d at 169.

¶ 31. Having concluded that the first two factors favor the exception, we move to the third consideration; whether an automobile is involved. See Anderson, 142 Wis. 2d at 169. Anderson explained that this is a consideration because "[i]n some situations a citizen has a lesser expectation of privacy in an automobile." Id. at 169 n.4. The trial court did not address this factor, however, we believe that under Anderson, we are obligated to consider it. See id. Hence, because this case involves a residence, the lower expectation of privacy that one might have in an automobile is not present, and the absence of an automobile therefore weighs against the community caretaker exception. See id.

¶ 32. Finally, the availability, feasibility and effectiveness of alternatives to the type of intrusion must be considered. See id. at 170. Ziedonis argues that not only did the officers have the option of calling Animal Control for assistance with corralling the two Rottweilers, but the officers also could have shot the dogs.

¶ 33. We think Officer Matte's failure to contact Animal Control was perfectly understandable as he was under the impression that the organization's services were unavailable after midnight. Particularly given his multiple disappointing experiences with the organization in the past, his reluctance to contact them cannot be faulted. It is equally easy to understand that the officers wanted to avoid shooting the dogs because they believed, correctly so, that they were pets. Opting to try to contact the dogs' owner under these circumstances thus seems like an entirely reasonable course of action. Nevertheless, as previously stated, and as both parties concede, it was not the concern about the dogs which ultimately led the officers to enter the home; rather, it was their concern about the dogs' owner, the occupant of 2621 South 6th Street. We are not aware of, and Ziedonis does not suggest, any viable alternatives to the entry beyond everything the officers already tried in attempting to contact the dogs' owner. Consequently, this factor favors the community caretaker exception. See id.

¶ 34. In sum, we are convinced, after considering all four factors of the Anderson test, that the public need and interest do outweigh the intrusion upon Ziedonis's privacy, and the officers' actions were thus justified under the community caretaker exception to the warrant requirement. Therefore, the trial court's denial of Ziedonis's motion to suppress was not clearly erroneous. Accordingly, we affirm.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Apparently the occupant of the front portion of 2621 South 6th Street, Zdzislaw Kaminski, was asleep inside his residence and failed to hear the loud speaker or respond at the time the officers attempted to contact the resident of the back portion. It was later learned that the reason Kaminski did not wake up was because he was intoxicated and had passed out.

       WISCONSIN Stat. § 941.29(2) provides: "A person ... is guilty of a Class G felony if he or she possesses a firearm under any of the following circumstances: (a) The person possesses a firearm subsequent to the conviction for the felony or other crime as specified in sub. (l)(a) or (b)."

       WISCONSIN Stat. § 961.14(4)(t) provides: "Tetrahydrocan-nabinols, commonly known as "THL," in any form including tetrahydrocannabinols contained in marijuana, obtained from marijuana or chemically synthesized."

        Wisconsin. Stat. § 961.41(1) provides, in relevant part:
      Manufacture, distribution or delivery. ... it is unlawful for any person to manufacture, distribute or deliver a controlled substance or controlled substance analog. Any person who violates this subsection is subject to the following penalties:
      (h) Tetrahydrocannabinols. If the person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14 (4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount manufactured, distributed or delivered is:

        2. More than 200 grams but not more than 1,000 grams, or more than 4 plants containing tetrahydrocannabinols but not more than 20 plants containing tetrahydrocannabinols, the person is guilty of a Class H felony.

       In addition to imprisonment, on the felony possession of firearm count the court also imposed a $250 fine, plus costs and surcharges, and required Ziedonis to submit a DNA sample, and on the manufacture of a controlled substance count, the court imposed costs and surcharges and required that Ziedonis's driver's license be suspended for six months. As conditions for the extended supervision, the court also ordered Ziedonis to undergo an alcohol and drug assessment, to comply with any recommended program, to undergo random urine screens, to not possess, use or sell drugs, to have no contact with the drug community, to maintain full-time employment, and to pay the costs of supervision.

       The Fourth Amendment of the United States Constitution provides:

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

       Article I, section 11 of the Wisconsin Constitution provides:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

       At the hearing on the motion to suppress, when asked hy the district attorney whether the defense was challenging only the entry or the entire search, Ziedonis's counsel replied that the defense was challenging the entire search. On appeal, Ziedonis does not explicitly concede that he is no longer challenging the entire search, but his arguments all pertain only to the purported unlawfulness of the entry. In its response, the State made note of the fact that Ziedonis appeared to be challenging only the entry; Ziedonis did not dispute this statement in his reply.

       The parties also do not dispute the trial court's finding that the police was engaged in a bona fide community caretaker function when it responded to the complaint about loose dogs. This finding, however, is not relevant for purposes of this appeal and we therefore decline to address it further.

       Ziedonis also argues that that the officers did not have sufficient reason to enter the home for help with the dogs, and notes that even if the dogs did give the officers a reason to enter the residence, "the public interest and exigency of the situation was insufficient to justify the entry," because "[ajlthough the dogs were loose they had not hurt anyone.. . ." Because the trial court specifically found, and the parties do not dispute, that the reason for the entry was not to attain help with the dogs, but rather a concern for the occupant, whether the dog problem was in fact an added reason for the entry is not relevant for this appeal, and we thus decline to address it.

       Moreover, Officer Matte's observations of the handgun on the kitchen table, and of the assault rifle on the couch on the second floor, added to the reasonableness of the officers' decision to continue to search the house for someone in need of help or a possible body.


author: KESSLER, J.

text:
    Craig Holt, Plaintiff-Appellant, v. Ronald Hegwood, American Family Mutual Insurance Company, Defendants-Respondents, Blue Cross-Blue Shield of Wisconsin, Defendant, Compcare Health Services Insurance Corporation, Intervenor, Stephen Thiel, Joan Thiel, Defendants-Respondents.
    Court of Appeals

      No. 2004AP3007.

      Submitted on briefs August 02, 2005.

      Decided October 04, 2005.

    2005 WI App 257
    (Also reported in 708 N.W.2d 21.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of S.A. Schapiro of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Michael J. Wirth of Peterson, Johnson & Murray, S.C. of Milwaukee for Ronald J. Hegwood and American Family Mutual Insurance Company and Henry E. Koltz of Schmidt, Darling & Erwin of Milwaukee for Stephen Thiel and Joan Thiel.

    Before Wedemeyer, PJ., Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. Craig Holt appeals from a judgment and an order dismissing his claims against numerous defendants for personal injuries and property damage he claims he suffered when a tree limb fell on him and his car. Holt argues that the trial court erroneously dismissed his public nuisance and safe place statute claims. Because the record demonstrates that the trial court based its decision on undisputed material facts and a correct analysis of the applicable law, we affirm.

BACKGROUND

¶ 2. The facts underlying the myriad claims involved at various times in this litigation are relatively simple. Holt's cousin lived in an apartment building owned by Ronald Hegwood, one of the defendants in this action. There was a driveway along one side of the apartment building that provided access to a parking area at the rear of the building. Two trees grew along the driveway, inside a fence that appeared to separate the Hegwood property and the adjacent property, owned by Stephen and Joan Thiel, who are also defendants.

¶ 3. On April 27, 2001, Holt went to his cousin's house to wash Holt's car in the driveway. The day was breezy. As Holt and his cousin stood in the driveway washing the car, a limb from one of the trees fell and, Holt alleges, injured him and damaged his car. Two issues related to the incident came to light. First, it appeared that the fence was not actually on the property line, and that the tree limb might have been growing on the Thiels' property, as opposed to on Hegwood's property. Second, to determine why the limb fell, an arborist was consulted. The arborist opined that the errant limb had two prior cracks. However, no evidence suggested that the defendants were aware of any cracks in the tree.

¶ 4. So began the saga of this litigation, which might be summarized in a poem by Robert Frost:

The tree the tempest with a crash of wood
Throws down in front of us is not bar
Our passage to our journey's end for good,
But just to ask us who we think we are ... .[]

This fallen limb, and the increasingly imaginative theories of liability offered by Holt, have delayed the movement of this case to its journey's end. They have not blocked the way permanently. However, the journey has been more complicated than the underlying incident. A summary of that journey is necessary to understanding the final resolution of this case.

¶ 5. On June 11, 2002, Holt sued Hegwood in small claims court, alleging Hegwood had negligently maintained his property. The case was moved to the large claims division.

¶ 6. On March 28, 2003, approximately two years after the limb fell, Holt filed his first amended complaint, adding insurance companies as defendants. No new causes of action were alleged. On June 10, 2003, a second amended complaint was filed; this complaint added a claim of public nuisance and private nuisance, but did not add new defendants. Two weeks later, on June 24, 2003, a third amended complaint was filed. This complaint added the Thiels as defendants and alleged violations of the safe place statute, see Wis. Stat. § 101.II. On March 12, 2004, a few days shy of three years past the errant limb's descent, Holt moved for permission to file his fourth amended complaint. Holt also asked the trial court to take judicial notice of Milwaukee, City, Wis., Code of Ordinances ("Code") § 116-53 (2005), to declare that it applied in this case, and to instruct the jury that the defendants were negligent per se based on their alleged violation of this ordinance.

¶ 7. Defendants Hegwood and American Family objected to the proposed fourth amended complaint. In addition, in their trial brief, filed April 2, 2004, they sought dismissal of the safe place claim, the public nuisance claim, and the private nuisance claim by asking the court to refuse to instruct the jury on those claims on the grounds that there were no facts in the record, or in the now-completed discovery, that would permit a jury to find for the plaintiff on any of those theories.

¶ 8. The trial court treated all of these requests, except the request to file the fourth amended complaint, as motions for summary judgment. At a hearing on April 21, 2004, the trial court denied the motion to permit a fourth amendment of the complaint because the proposed amendment was presented well beyond the time set in the scheduling order for amendment of pleadings, which had been established by agreement between the parties. In addition, the trial court noted that plaintiff had shown no mistake, surprise or excusable neglect which might justify such a late amendment, and concluded that it would be unfair to the defendants to permit a new cause of action at such a late date in the proceedings. The trial court also denied Holt's request for a declaration that a violation of Code § 116-53 would be negligence per se.

¶ 9. The trial court asked the parties to brief the question of whether there was a valid claim stated for creation of a public nuisance, and if so, whether Code § 116-53 was relevant to civil liability for a public nuisance. The trial court held another hearing on August 25, 2004, to address those issues. The trial court ruled that there were no facts presented to it from which a jury could conclude there was a violation of the safe place statute; hence, the jury would not hear evidence on that claim and would not be instructed on that statute. Further, the trial court ruled that because no facts had been presented which would support finding a public nuisance, there would be no evidence taken, and no instructions given, on the public nuisance claim. The trial court then dismissed both the safe place violation claim and the public nuisance claim, and concluded that Code § 116-53 was not relevant to any issue remaining in the litigation. Consequently, the trial court ruled that it would not take judicial notice of that ordinance. This left only plaintiffs claims based on negligence and creation of a private nuisance. Holt voluntarily dismissed both of these remaining claims before entry of judgment conforming to the trial court's orders. This appeal followed.

DISCUSSION

¶ 10. Holt argues that the trial court should not have dismissed his claims based on public nuisance and violation of the safe place statute. This case comes to us in the context of a dismissal based on summary judgment. In evaluating the grant or denial of a summary judgment, we apply the same methodology as the trial court and review de novo the grant or denial of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is proper if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). In evaluating the evidence, we draw all reasonable inferences in the light most favorable to the non-moving party. Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980). Whether an inference is reasonable and whether more than one reasonable inference may be drawn are questions of law. Hennekens v. Hoerl, 160 Wis. 2d 144, 162, 465 N.W.2d 812 (1991).

A. Public nuisance claim and Code § 116-53

¶ 11. Holt's second amended complaint alleged a claim for public nuisance. On appeal, Holt bases his argument that this claim was erroneously dismissed on a theory that Code § 116-53 creates a cause of action for public nuisance. Hegwood and his insurer (collectively, "Hegwood") argue that this court should not even consider issues related to § 116-53 because Holt has not appealed from the order denying his motion to file the fourth amended complaint, which was the first complaint to suggest that § 116-53 was relevant to the case. Holt's notice of appeal states that he is appealing from "the final order of the trial court of Sept. 29 [2004] and from the judgment of the trial court of Nov. 3, 2004." The September 29, 2004, order dismissed the safe place and public nuisance claims and declined to take judicial notice of § 116-53. The judgment dismissed the entire case based on previous dismissals of each claim. We decline to declare that all issues related to § 116-53 are outside the scope of Holt's appeal and, instead, will address his arguments on their merits.

1. Judicial notice

¶ 12. Holt asked the trial court to take judicial notice of Code § 116-53. The trial court declined, stating in its September 7, 2004, order that it "would not take judicial notice" of the ordinance. This wording is unfortunate, because it is clear from the record that the trial court did take judicial notice of the ordinance, as required by Wis. Stat. § 902.03. What the trial court refused to do was declare that § 116-53 establishes a private cause of action and that it applies in this case.

2. Code § 116-53 does not create a private cause of action for persons injured when a tree limb on private property falls

¶ 13. The violation of a statute or an ordinance does not automatically impose civil liability. See Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 66, 596 N.W. 2d 456 (1999).

[T]hree questions must be answered in the affirmative before the violation of a statute will constitute negligence per se: "(1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of legislative intent that the statute become a basis for the imposition of civil liability."

Id. at 66-67 (citation omitted). In order to impose a duty beyond that imposed by common law, there must be an expression of that purpose in "clear, unambiguous, and peremptory" language. Burke v. Milwaukee & Suburban Transp. Corp., 39 Wis. 2d 682, 690, 159 N.W.2d 700 (1968) (citation omitted). A statute that merely makes provision for the safety or welfare of the public generally, but does not purport to establish civil liability, is not to be construed to establish civil liability. McNeill v. Jacobson, 55 Wis. 2d 254, 259, 198 N.W.2d 611 (1972).

¶ 14. We interpret statutory and municipal code language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes or code provisions, and we interpret it reasonably, so as to avoid absurd or unreasonable results. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 46, 271 Wis. 2d 633, 681 N.W.2d 110. Thus, Code § 116-53 must be read in the context of Code ch. 116, entitled "Use of Public Ways and Places." This chapter addresses such issues as installation of signs, cleaning sidewalks and vacant lots, and managing tree growth.

¶ 15. Code §§ 116-51 through 116-70 address the maintenance of trees and shrubs and provide penalties for violating the ordinance. Those provisions are aimed essentially at controlling diseased or dangerous trees that threaten public streets or walkways or that harbor disease likely to spread throughout the city. Code ch. 116 provides a process by which the city may identify diseased or otherwise dangerous trees, demand that the landowner remove the danger or the identified tree, remove the diseased tree if the landowner fails to do so, bill the landowner for the removal, and fine the landowner for failure to take the remedial action demanded. See §§ 116-66 — 116-68 and 116-70.

¶ 16. We conclude that no language in Code ch. 116 specifically, clearly, and unambiguously creates a civil cause of action. The only penalty section relates to fines that must be paid. See Code § 116-70. There is no suggestion that the City of Milwaukee Common Council intended to create a private cause of action for violations of the statute. In short, we discern no "clear, unambiguous, and peremptory" language that would lead us to conclude that violations of ch. 116 give rise to a private cause of action. See Burke, 39 Wis. 2d at 690 (citation omitted).

¶ 17. In addition, we agree with the trial court that there is nothing to indicate that Code § 116-53 was violated in this case. No city commissioner examined the tree, or the limb that fell, or made any determination as required in order to activate the process set out in the ordinance. No orders with respect to the tree appear to have been issued. The record does not indicate that the tree with the errant branch hung so much as an inch over the public right-of-way. Consequently, the trial court was correct in concluding there was no valid reason to permit the juiy to consider this ordinance for any purpose.

3. The trial court properly dismissed the public nuisance claim

¶ 18. We affirm the dismissal of Holt's entire public nuisance claim. "A public nuisance is a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community." Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶ 21, 254 Wis. 2d 77, 646 N.W.2d 777 (citations omitted). Holt has presented no evidence that the alleged neglect of a single tree had any effect on the use of a public place or on the entire community's activities. In the absence of this evidence, the trial court properly granted summary judgment in the defendants' favor on the public nuisance issue.

B. Safe place claim

¶ 19. The safe place statute, Wis. Stat. § 101.11, provides three alternative bases from which liability for unsafe premises will flow. The statute applies to employers, to owners of places of employment and to owners of public buildings. It does not create liability for purely private property not owned by an employer, on which no employment occurs, and which is not open to the public. The term "place of employment" used in Wis. Stat. § 101.11(1) is defined in Wis. Stat. § 101.01(11), and includes "every place . . . and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on. . . ." The term "public building" is defined as "any structure, including exterior parts of such building ... used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants." Wis. Stat. § 101.01(12).

¶ 20. Holt alleged in the second amended complaint, but provided no facts that established, that Hegwood was "in the real estate investment business." Based on that allegation alone, Holt argued that the real estate Hegwood admitted owning was a place of employment — apparently Hegwood's employment. Holt offered no factual support for the claim that either the building Hegwood owned, or the tree from which the branch fell, were places of employment.

¶ 21. Apparently Holt believed that if the building in which Holt's cousin was a tenant was a "place of employment," then Hegwood, as the owner of a place of employment, would be responsible for the falling limb because it fell on "the premises appurtenant." Unfortunately for Holt, there is no evidence in the record of any employment activities occurring in the building in which his cousin lived. There is no evidence that Hegwood so much as collected rent at the property— which itself would not even render the property a place of employment. See Antwaun A., 228 Wis. 2d at 64 (a landlord's occasional entry onto property to collect rent does not make the property a place of employment).

¶ 22. There is also no evidence that the apartment building is a "public building" as the term is used in Wis. Stat. § 101.11(1) and defined in Wis. Stat. § 101.01(12). There is nothing in the record that indicates three or more tenants occupy the building, or that it is a place to which the public generally has access. In short, the existing record establishes nothing more than that a tree, located on private property, lost a limb that also landed on private property. That, as the trial court correctly concluded, is insufficient to permit a jury to consider whether there was a violation of the safe place statute.

C. Request for sanctions

¶ 23. In their response brief, the Thiels and their insurer (collectively, "Thiels") ask this court to conclude that Holt's appeal was frivolous. They seek their costs in defending the appeal. After briefing was completed in this case, our supreme court held that

parties wishing to raise frivolousness must do so by making a separate motion to the court, whereafter the court will give the parties and counsel a chance to be heard. We caution that a statement in a brief that asks that an appeal be held frivolous is insufficient notice to raise the issue.

Howell v. Denomie, 2005 WI 81, ¶ 19, 282 Wis. 2d 130, 698 N.W.2d 621.

¶ 24. The Thiels never filed a separate motion, either before or after Howell was issued. However, we need not decide whether parties who argued the frivolous issue in briefing completed prior to Howell would be subject to it, because on the merits, we decline to grant the Thiels the relief they request. "To award costs and attorney fees, an appellate court must conclude that the entire appeal is frivolous." Id., ¶ 9. Here, one issue raised was whether Code § 116-53 creates an independent cause of action; this issue has not been addressed previously by this court. Although we have rejected the argument, we are not prepared to conclude that Holt or his attorney knew, or should have known, that the appeal had no "reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." See Howell, 698 N.W.2d 621, ¶ 9 (citing Wis. Stat. Rule 809.25(3)(c)2.). Therefore, because the entire appeal is not frivolous, we deny the Thiels' request.

CONCLUSION

¶ 25. The trial court correctly granted summary judgment in the defendants' favor, dismissing the claims based on public nuisance and the safe place statute. Based on Holt's voluntary dismissal of the remaining claims, nothing remains to be tried. We affirm the judgment and order dismissing all claims.

By the Court. — Judgment and order affirmed.

       Robert Frost (1874-1963), "On a Tree Fallen Across the Road" (1923).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Milwaukee, City, Wis., Code of Ordinances § 116-53 (2005) provides:
      Hazardous Trees and Storage of Cut Elm Wood Prohibited. The planting, preserving and maintaining of trees which are injurious and detrimental to the community, and all such trees as may be hable to fall upon any sidewalk, street or building, or which are hazardous or may result in injury to person or property because of a defective or diseased condition, or contagiously diseased trees, or the storage of cut elm wood, unless debarked or treated with a proper insecticide, shall be deemed a public nuisance and are prohibited.

       A trial court may convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are considered. Schopper v. Gehring, 210 Wis. 2d 208, 216, 565 N.W.2d 187 (Ct. App. 1997). Although Holt argues the trial court should not have proceeded on summary judgment grounds, we discern no error.
      We also note, for the benefit of future litigants, that the captions of the papers filed in this action do not always describe what is contained therein. Nor do the various amended complaints accurately identify their sequence. It would he of great assistance to both the trial court and to this court if practitioners would briefly, and accurately, caption their pleadings, moving papers and other filings.

       Judicial notice is an evidentiary rule that eliminates the need for parties to prove certain types of legislative or adjudicative facts that are not in dispute. The rules related to judicial notice are codified in Wis. Stat. ch. 902. Among the rules are provisions according to which a court shall take judicial notice of adjudicative facts that are not subject to reasonable dispute when a party asks the court to do so and supplies the necessary information, see § 902.01(4), and shall take judicial notice of municipal ordinances, see § 902.03(l)(a). Judicial notice of the existence of Code § 116-53 was required under § 902.03. The trial court acknowledged the existence of the ordinance, as required under § 902.03.

       The principles of statutory construction apply equally to construction of municipal ordinances. Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis. 2d 633, 660 N.W.2d 656.

       Code § 116-70 provides:
      Penalty. Any person violating any of the provisions of ss. 116-51, 116-52, 116-54, 116-63 and 116-69 shall, upon conviction, pay a penalty to the city of not less than $10 nor more than $25 for each and every offense. Each day in which any of the provisions of these sections are violated shall constitute a separate offense.

       Wisconsin Stat. § 101.11 provides in relevant part:
      Employer's duty to furnish safe employment and place. (1) . . . Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

       Hegwood answered this allegation by saying, in effect, that he did not know what Holt meant by the phrase, so he could not answer that allegation. Holt argues that this "evasive denial is insufficient to controvert the allegations of the complaint and thus, is an admission." We disagree that Hegwood's answer constitutes an admission that his apartment building is a place of employment.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kenneth V. Harden, Defendant-Appellant.
    Court of Appeals

      No. 2005AP262-CR.

      Submitted on briefs August 22, 2005.

      Decided October 4, 2005.

    2005 WI App 252
    (Also reported in 707 N.W.2d 173.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Ralph J. Sczygelski of Sczy-gelski Law Firm, Manitowoc.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Mark A. Neuser, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Kenneth Harden appeals a judgment convicting him of delivering cocaine and THC, and an order denying his motion to withdraw his no contest pleas. The State concedes that Harden was misinformed about the maximum prison sentence the court could impose for these crimes. Relying on State v. Quiroz, 2002 WI App 52, ¶ 16, 251 Wis. 2d 245, 641 N.W.2d 715, the trial court ruled that Harden failed to present credible evidence that the misinformation affected his plea decisions. Because we conclude Harden's pleas were not knowingly and voluntarily entered and he was not required to establish that the misinformation affected his plea decisions, we reverse the judgment and order and remand the case to the trial court with directions to grant Harden's motion to withdraw his pleas.

¶ 2. The complaint, information and amended information, although they differed in the crimes charged, all overstated the maximum prison terms the court could impose. Pursuant to a plea agreement, Harden pled no contest to the two offenses charged in the amended information. The plea questionnaire and the court's colloquy likewise misinformed Harden that he was subject to nineteen years' and six months' imprisonment. The correct potential prison exposure was sixteen years. The court imposed consecutive sentences totaling three years' initial confinement and four years' extended supervision.

¶ 3. At the postconviction hearing, Harden testified that he would not have accepted the plea agreement if he had known the correct maximum prison exposure was three and one-half years less than he was told. The trial court, relying on Quiroz, found Harden's testimony incredible as a matter of law and denied the motion to withdraw the no contest pleas.

¶ 4. To be valid, a no contest plea must be knowingly, voluntarily and intelligently entered. State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). A plea is not knowingly or voluntarily entered when it is made without knowledge of the penalties the court could impose. State v. Merten, 2003 WI App 171, ¶ 6, 266 N.W.2d 588, 668 N.W.2d 750. When a defendant makes a prima facie showing that the defendant was not informed of the direct consequences of his plea, the burden shifts to the State to show by clear and convincing evidence that the plea was nonetheless knowingly, voluntarily and intelligently entered. Bangert, 131 Wis. 2d at 274.

¶ 5. In this case, the State must prove that Harden knew the correct maximum sentence despite being given erroneous information at every stage of this proceeding. The State presented no evidence that Harden knew the maximum sentences the court could impose. Instead, it persuaded the trial court that Harden was required to show that his plea decisions were affected by the misinformation. That argument was specifically rejected in State v. Bartelt, 112 Wis. 2d 467, 484, 334 N.W.2d 91 (1983). While some language in Bartelt was subsequently withdrawn in Bangert, the holding that a defendant need not show that the misinformation "caused" the plea has never been withdrawn. The precedent is binding on this court. See Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶ 16, 239 Wis. 2d 129, 619 N.W.2d 137.

¶ 6. In Quiroz, after concluding the trial court correctly calculated the maximum sentence, this court also observed that Quiroz failed to present credible evidence that his plea decision was affected by the alleged miscalculation. Relying on a proposition advanced by the State with no authority, we stated that a defendant must prove that erroneous sentencing information caused the defendant to plead guilty or no contest. Bartelt was not cited or discussed. Because the supreme court's decision in Bartelt creates binding precedent, the dicta in Quiroz should not be applied.

By the Court. — Judgment and order reversed and cause remanded with directions.

       In State v. Bangert, 131 Wis. 2d 246, 256, 260, 389 N.W.2d 12 (1986), the court withdrew language from State v. Bartelt, 112 Wis. 2d 467, 480, 334 N.W.2d 91 (1983), and other cases that equated statutory plea hearing procedures with constitutionally mandated requirements. The court reaffirmed that making a knowing, voluntary and intelligent plea is constitutionally mandated. Bangert, 131 Wis. 2d at 260.