By Gretchen Schuldt
Polk County sheriff's deputies had no legitimate basis to significantly extend a traffic stop to allow time for a drug investigation of the driver, the State Court of Appeals ruled last week.
"At best, the officers had an inchoate suspicion or 'hunch,' which is insufficient to support an extension of the stop for the traffic offense," the District III Court of Appeals panel said in an unsigned opinion.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark Seidl.
The panel, reversing Polk County Circuit Judge Daniel J. Tolan, ordered that evidence found in the resulting search be suppressed.
Deputy Del Stone stopped Tyler Thompson shortly after midnight for a "rolling stop" at a stop sign as Thompson drove away from a house Stone was monitoring for suspected drug activity.
Stone testified in Circuit Court that Thompson appeared extremely nervous and that he denied failing to come to a full stop. Stone questioned Thompson about where he was coming from and about his residence, and told Thompson that he was driving in the wrong direction.
Thompson told Stone he did not know anyone at the residence he just left and that he was helping a friend move.
Stone already knew that Thompson's truck was properly registered and returned to his squad to run a criminal background check on Thompson. He also ran a criminal background check on the friend Thompson said he was helping.
Another deputy, Anthony Puetz, arrived at the scene and Stone got out of the squad. Stone testified that he told Puetz there was reasonable suspicion to believe drugs were in the truck.
By Gretchen Schuldt
A Milwaukee County judge's effort to force a man to remain a child's legal father after a DNA test showed he was not the biological dad was thrown out Tuesday by a State Court of Appeals panel.
The ruling reversed Milwaukee County Circuit Judge Paul R. Van Grunsven's decision that Deray J. Shaffale should remain the legal father because it was in the best interest of the child.
Shaffale had earlier signed a voluntary paternity acknowledgement because, he said, he thought he was the child's father and he wanted to get the child insured.
In sending the case back to Circuit Court, the three-member District 1 Court of Appeals panel said Van Grunsven applied the wrong standard and directed the judge and state attorneys involved in the case to read the relevant statutes.
Van Grunsven had found that requiring Shaffale to remain the legal father was in the best interests of the child.
"You signed that document, you’re the best and only father for this kid," Van Grunsven said during a 2018 hearing, according to the appellate decision.
He also said he had previously required men who erroneously acknowledged paternity to maintain their legal obligations even when they provided proof they were not the fathers.
"Let me explain this," Van Grunsven said. "I have had guys that I’ve known are not the father. I had genetic testing that establishes without a doubt that they’re not the father, but I continue to have that person under Wisconsin law be the legal father of the child because it was in the child’s best interest. That’s what the law is."
The appeals panel, though, in an opinion written by Appeals Judge Timothy G. Dugan, said that state law provides for voiding a paternity acknowledgement if a court finds that the male who signed it is not the biological father.
"We note that the statute does not reference a best interest of the child standard," Dugan wrote.
Shaffale wound up in court in the first place after the state filed a child support action naming both him and the child's mother, Vanidy R. Cross, as respondents.
Shaffale submitted the results of a privately obtained DNA test showing that he has 0% chance of being the father. Another man living in Seattle whom Cross said might be the father refused to submit to genetic testing that would determine whether he was.
The state argued that "it is better for the child to have a father on the birth records than no father at all," Dugan wrote. "The GAL agreed with the state."
Van Grunsven appointed the GAL, or guardian ad litem, to represent the child.
The state's lawyer told Van Grunsven the paternity acknowledgement could be voided only if its signing was tainted by fraud, mistake of fact, or duress, Dugan wrote. Van Grunsven found that Shaffale did not adequately show that it was, but the appeals panel said Van Grunsven did not do enough to determine that.
"There is no testimony or evidence in the record that establishes that Shaffale knew or had reason to believe that there were other potential fathers," Dugan wrote. "Cross was never called as a witness....There is no testimony or evidence in the record regarding Cross’s actions and representations to Shaffale....Further, because Cross was never called as a witness, Shaffale never had an opportunity to cross-examine her. He also was not given an opportunity to give his own direct testimony."
Dugan was joined in his opinion by Appeals Judges William W. Brash III and Joan F. Kessler.
Shaffale was represented on appeal by Demetra Christopoulos.
Sitting in a car at night not enough for police stop, appeals judge rules; Wood County trips over itself
By Gretchen Schuldt
Simply being in a car parked in a "24/7" boat landing parking lot does not provide police reasonable cause to question the occupants of the car, a state appeals judge ruled Thursday.
In addition, Wood County failed to show that Sheriff's Deputy Nathan Dean was acting in a community caretaker role when he approached the car, District IV Court of Appeals Judge JoAnne Kloppenburg said.
Kloppenburg upheld Wood County Circuit Judge Nicholas Brazeau Jr., suppressing in a drunk driving case evidence obtained by Wood County Sheriff’s Deputy Nathan Dean.
Dean saw nothing illegal and nothing suspicious before he approached the parked car to question to the two adults inside.
"The vehicle was not running, the lights were not on, and the hood was closed....The officer saw no indication that the persons were in distress," Kloppenburg wrote.
After Dean talked to the two, he cited one of them, Trevor Krizan, for first-offense drunk driving. Krizan, Dean testified, had glassy eyes and slurred his speech a few times when they talked.
Wood County argued for the first time on appeal that Krizan was never actually "seized," and so the Fourth Amendment prohibition against unreasonable search and seizures did not apply.
Lawyers generally are not allowed to raise an issue for the first time on appeal. Wood County not only did that; it directly contradicted in its appeal what it said in Circuit Court, according to Kloppenburg's decision.
There, the county argued that Dean was acting in his "community caretaker" role, which would allows exceptions to Fourth Amendment requirements when officers are acting as caretakers, rather than as crime investigators.
But a legitimate community caretaking function requires the occurrence of a seizure within the meaning of the Fourth Amendment, Kloppenburg wrote.
In short, Wood County tried to deny on appeal what it embraced in Circuit Court.
"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office.
Name: M. Joseph Donald
Appointed to: District 1 Court of Appeals
Appointment date: Sept. 4, 2019. (Election scheduled for April 2020)
Law School – Marquette University Law School
Undergraduate – Marquette University
High School – Shorewood High School
St. Lawrence Seminary
Recent legal employment:
1996 - present – Milwaukee County circuit judge
Bar and Administrative Memberships:
Wisconsin State Courts
U.S. District Court for the Eastern District of Wisconsin
General character of practice before becoming a judge: Worked as a Milwaukee assistant city attorney from 1989 to 1996, handling tax foreclosures, bankruptcies, property tax assessments, unemployment compensation and ordinance violations. Also handled disciplinary hearings before the Fire and Police Commission.
Describe typical clients: Represented various city department heads and city employees, including those in the Treasure's Office, the Department of City Development, the City Assessor's Office and the Fire and Police Departments. Represented the city in prosecuting people in Municipal and Circuit Court.
Number of cases tried to verdict or judgment: Seven as city attorney
List up to five cases in which you participated as a judge or lawyer in the past seven years:
State v. Johnnie J. – I presided over the jury trial and dispositional hearing, and entered orders terminating Johnnie's parental rights to her children.
State v. Antonio Smith – I presided over the jury trial and sentencing of defendant Smith on multiple counts of first degree intentional homicide and conspiracy to commit homicide.
State v. Mickey Miller – I presided over the jury trial and motion to dismiss the armed robbery and false imprisonment charges.
State v. Bailey – I presided over the multiple count jury trial and motions that resulted in a conviction of guilty on felon in possession of a firearm and acquittal on others.
State v. Akim Brown – I presided over the post-conviction motion.
Experience in adversary proceedings before administrative bodies.
Throughout my career as a Milwaukee City Attorney, I was involved in many administrative proceedings, which included The Board of Review for tax assessments; State of Wisconsin Unemployment Compensation Proceedings; and the Milwaukee Fire and Police Commission.
My most notable administrative proceeding took place in 1991 before the Fire and Police Commission and involved the disciplinary proceedings of Milwaukee Police Officers John Balcerzak and Joseph Gabrish for failing to properly investigate serial killer Jeffrey Dahmer and one of his victims.
Konerak Sinthasomphone was a 14-year-old Laotian immigrant, who had escaped Dahmer's apartment and ran out into the neighborhood. Bystanders called police. When Officers Balcerzak and Gabrish arrived on the scene, Sinthasomphone was disoriented, naked and bleeding.
Dahmer managed to convince the officers that Sinthasomphone was his 19-year-old gay lover. Without investigating the circumstances further, the officers returned the boy to Dahmer's custody, inside Dahmer's apartment.
Meanwhile, three African-American women were also on the scene when Sinthasomphone escaped and tried to convince the officers that something was wrong.
What made this case so noteworthy was the pretrial evidentiary rulings with respect to what evidence was available for use. For example, there were hundreds of photographs of Dahmer's apartment; recordings of the officers' radio transmissions; employment histories of the police officers; and the police department's internal affairs investigation reports.
Marquette Law Professor Dan Blinka was the hearing examiner and set a very aggressive scheduling order for these pretrial issues to be resolved. At the same time, there was community pressure on the commission from the Mayor John Norquist's office, the Milwaukee Police Association and the public at large.
Previous runs for political office: Successful campaigns for Circuit Court in 1997, 2003, 2009, 2015; unsuccessful run for Wisconsin Supreme Court in 2016.
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization:
Donated $20 to State Rep. Mandela Barnes (D-Milwaukee) in 2015.
All judicial or non-partisan candidates endorsed in the last six years:
It has been my practice to endorse incumbent judges or judicial candidates who would bring diversity to the bench.
(Note - Donald did not provide requested information, which includes each endorsed candidate's name, office sought, and year of endorsement.)
Professional or civic and charitable organizations:
Housing Authority of the City of Milwaukee, Board member, 2014 to present
Milwaukee County Historical Society, Board member, 2017 to present
Urban Day School, Board member, 2000 to present
American Constitution Society, member, 2016 to present
Milwaukee Bar Association, 1996 to present
State Bar of Wisconsin, member, 1988 to present
Milwaukee Area Technical College, Board member, 1990 to 1994
Milwaukee Institute of Art and Design, Board member, 2000 to 2005
Harambee Community School, Board member, 1996 to 2000
Marquette Law School Alumni Board, Board member/president, 2003 to 2007
Juvenile Corrections Study Committee, member, July, 2018 to October, 2018
Mother of Good Counsel Parish, Board member, 1996 to 2000
Next Act Theater, Board member, 1993 to 1996
Race, Equity, and Procedural Justice, member, 2014 to present
Department of Children and Families, Advisory Committee member, 2018 to present
State Bar of Wisconsin, Mass/Disparate Incarceration Committee, 2018 to present
State Supreme Court, Policy and Planning Committee, 2015 to present
American Cancer Society, Ambassador board member, 2015 to 2016
Elected or appointed public offices:
Milwaukee Area Technical College Board, 1991 to 1994 – elected by Board.
Milwaukee Housing Authority, 2014 to present – appointed by Common Council
Significant pro bono legal work or volunteer service:
Involvement in business interests:
Board member, Travaux Inc., real estate development (Milwaukee Housing Authority). I am prepared to resign from Travaux.
Why I want to be a judge –
I want to serve the people of Wisconsin as a Court of Appeals Judge because I want to ensure that our courts are fair, impartial and free from the influence of special interests and politics. If our courts become too closely aligned with our legislative and executive branches, citizens can become victims of the system.
During my 23 years as a circuit judge, I have observed significant changes in our approaches to addressing crime, and I believe some of these changes were influenced by political policy and special interests.
By Gretchen Schuldt
A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.
The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.
During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.
While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.
When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings.
The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death."
No alternative medical examiner findings were actually offered.
By Gretchen Schuldt
Police who searched the home of a man they had just arrested had no legitimate reason to do so without a warrant, a State Court of Appeals panel ruled this week.
The panel granted Jesse J. Jennerjohn's request to suppress the evidence police found in the search.
The ruling is the second time this month an appeals court rejected the state's claims that law enforcement was acting in its "community caretaker" role when conducting a warrantless search.
That exception to the U.S. Constitution's Fourth Amendment search warrant requirement allows officers to conduct searches without warrants when necessary to protect persons and property.
The Appleton police officers who searched the home of Jennerjohn, however, "were not exercising a bona fide community caretaker function," Appeals Judge Lisa K. Stark wrote for the District III Court of Appeals panel.
"Even if they were, the public interest in searching the residence did not outweigh the intrusion upon Jennerjohn’s privacy," she wrote. Stark was joined in her opinion by Appeals Judges Thomas M. Hruz and Mark A. Seidl.
According to Stark's opinion, Officer Dominic Hall responded to a report from Grumpy's Pub that a man was using profanity, throwing things, and was trying to start a fight at the bar.
Two bartenders told Hall they had expelled the patron, who warned them that they had "better run." One of the bartenders had written down the person's license plate number, and the car was registered to Jesse Jennerjohn.
When Hall and other officers went to Jennerjohn's house, they saw him and a woman standing outside the house next door. Jennerjohn ran inside his own house when he spotted the police.
One of the officers near Jennerjohn's car testified he could see a rifle case in the car but could not tell whether there was a weapon in it.
Hall testified during a suppression hearing that he knocked on Jennerjohn's door for several minutes and repeatedly announced the officers were with the Police Department and they wanted Jennerjohn to open up. Another officer said he could see Jennerjohn moving inside his house and did not see anyone else.
Jennerjohn's neighbor and a friend police contacted by phone told them Jennerjohn lived alone. So did his brother, who came to the scene.
Jennerjohn came out of his house voluntarily 30 to 60 minutes after police arrived. He was holding something – it turned out to be venison – in his hand. He made grunting, guttural sounds as he walked toward officers.
"He ignored the officers' commands to stop and yelled something akin to 'Just shoot me,'" Stark wrote.
Officers tased him and put him in handcuffs.
Jennerjohn eventually told police there were no people or animals in the house. One of the officers verified his statement by opening the door and calling out, “Appleton Police Department. If there’s anybody inside, announce yourself now.”
There was no response.
By Gretchen Schuldt
Winnebago County deputy sheriffs failed to ask three different people about any injuries suffered by the driver in a one-car accident, then claimed they did not need a warrant when they conducted a search at his home because they were concerned for his well-being.
The argument failed to convince a state appeals judge.
"While the officers indicated concern for (Troy) Kettlewell’s well-being, they did not ask any of these people about Kettlewell’s well-being or to assist in determining if he needed immediate help," District 2 Court of Appeals Judge Lisa Neubauer wrote. "Their questions were largely focused on his drinking and driving."
Neubauer's ruling reversed Winnebago Circuit Judge Daniel J. Bissett, who had ruled against Kettlewell's motion to suppress evidence obtained in the search.
According to Neubauer's opinion:
A witness reported to authorities seeing a man leaving a car in a ditch. The man's speech was slurred and he may have been intoxicated, but did not appear to be injured, the witness said.
Deputy Michael Huth, upon learning that the car was registered to Kettlewell, went first to the nearby home of Kettlewell's cousin to see if he was there. Kettlewell was not, but the cousin called him to let him know police were looking for him.
Then Huth went to the accident scene, Neubauer wrote.
"Upon inspection of the vehicle, he noted the following: no broken glass, no window or windshield damage, no blood visible on or near the vehicle, and no other indications of personal injury within the vehicle," she wrote. "Huth saw a half-full bottle of beer and a prescription medicine container with Kettlewell’s name."
The side air bags had gone off, but the front ones did not.
By Gretchen Schuldt
A man who committed at least two felonies as he impregnated his first cousin and then largely ignored the resulting son is not entitled to any of that son's estate, the State Court of Appeals ruled this week.
The unsigned ruling means that Marcus Crumble will not share in the $1.4 million the estate of Brandon Johnson received last year to settle a case with the Milwaukee County Mental Health Complex stemming from the 25-year-old's death in 2012.
Johnson died from a blood clot that moved to his lungs. His roommate told investigators that Johnson asked for help the night before, saying he could not move his legs. Staff members thought he was faking it and refused.
Crumble had minimal involvement with his son during his lifetime, a three-judge panel said in an unsigned opinion upholding a ruling by Milwaukee County Circuit Judge David Borowski. The panel included Appeals Judges Joan F. Kessler, Kitty K. Brennan, and JoAnne F. Kloppenburg.
Crumble "had little, if any contact with Brandon before Brandon's college graduation," the opinion said. Crumble moved to California when Johnson was 5 and, while Crumble suspected he was Johnson's father, that wasn't confirmed until Johnson was 17 and his mother, Alicia Johnson, requested a DNA test.
Crumble was subsequently ordered to pay child support, which he did until Johnson was 18. Crumble also went to his son's funeral and paid for funeral expenses.
Alicia went to court to prevent Crumble from inheriting. She argued that Crumble abandoned Marcus Johnson and so under state law was not entitled to a share of the estate.
Borowski ruled that the statute did not apply because Brandon Johnson was not a child when he died. Borowski also ruled, though, that allowing him to inherit a share of the estate would unjustly enrich Crumble.
Crumble was 20 and Alicia was 15 when she conceived Brandon.
"Under the tragic facts and circumstances of this case, including the fact that Mr. Crumble committed both statutory rape and incest, this Court will not allow a six figure windfall to be awarded to Mr. Crumble," Borowski said.
Crumble appealed, but the three-judge panel rejected his argument.
"To allow Marcus to retain a benefit conferred upon him by the estate of the son he barely acknowledged would violate both logic and the basic principles of fairness," the panel said.
By Gretchen Schuldt
It is fine and dandy for police to lie to and deceive a cognitively and socially challenged man in circumstances deliberately designed to ensure he was not entitled to a lawyer during questioning, a State Court of Appeals panel has ruled.
Lying and trickery are tactics "common in law enforcement interviews of criminal suspects," Appeals Judge Mark D. Gundrum wrote in the decision, which was joined by Appeals Judge Lisa S. Neubauer.
"Were we to follow (defendant John) Finley's apparent suggestion that law enforcement should be limited to simply accepting a criminal suspect’s first-response denial to a one-time asked, open-ended question of 'Did you sexually assault your niece?' law enforcement may as well simply be precluded from questioning suspects altogether," Gundrum said.
Appeals Judge Paul F. Reilly, in an angry dissent, called the police tactics "coercive and improper."
"Being a judge is a noble position," Reilly wrote. "Being a law enforcement officer is a noble profession. There is something ignoble, however, in charging a person with a crime if that person lies, cheats, or fabricates statements or evidence to the government during an investigation, but if a law enforcement officer does the same, we consider the confession reliable. In life, we do not trust a liar or a deceiver, yet we are imposing that character trait upon our police. Having authorized dishonesty, we must be prepared to accept dishonest results."
Finley, now 41, was convicted of sexually assaulting his nine-year-old niece, identified as C.P. in court records, by touching her breasts and vagina under her clothes. Walworth County Circuit Judge's Kristine E. Drettwan in November 2016 sentenced Finley to 20 years in prison and 10 years of extended supervision.
While Whitewater police were investigating the matter, the girl's mother, who is Finley's sister, said that C.P. had autism and attention deficit / hyperactivity disorder and that she was affectionate and liked to hug people.
C.P.'s mother also told Police Officer Saul Valadez that Finley "has the mental capacity of a 12- year-old" and “socially functions at a first-grade level.” A doctor who evaluated Finley found he had an IQ of 72, not disabling but lower than 97% of the population.
During his questioning, police got Finley to admit to putting his finger in C.P.'s vagina –something the girl never said he did.
C.P. made her allegations against her uncle to her therapist, whom she was seeing for behavioral problems and sensory issues, according to a defense brief by attorney Ellen Henak.
By Gretchen Schuldt
The vehicle of a driver arrested for drunk driving can be searched for other drugs even when an officer has no reason to believe the driver is under their influence or has any in his or her possession, the State Court of Appeals ruled last week.
That is because the offense of operating while intoxicated (OWI) includes driving while under the influence of alcohol or other drugs, the District II Court of Appeals panel said.
"It is not unusual for a driver’s impaired condition to be caused by a potpourri of substances—some legal, some illegal, some easily detected, some not—sometimes including alcohol, sometimes not," Appeals Judge Mark D. Gundrum wrote. "All such substances are relevant to proving that the driver is in violation of ...(state statute) due to driving while impaired by either drugs, alcohol, or both."
Gundrum was joined in his opinion by Appeals Judges Paul F. Reilly and Brian K. Hagedorn.
The ruling stems from the case of Mose Coffee, who was convicted in Winnebago County Circuit Court of second offense OWI and possession of marijuana with intent to deliver. The officer who stopped Coffee said that he smelled of alcohol, had slurred speech, and glazed and bloodshot eyes.
Coffee was arrested and officers searched his vehicle. One officer found a bag containing two jars of marijuana, several cell phones, and a package with numerous small plastic bags. Officers found more marijuana in the trunk.
Coffee sought to have the drug evidence suppressed, arguing it was not reasonable for officers to believe they would find OWI-related evidence in the bottom of the bag.
In upholding Circuit Judge John A. Jorgensen's rejection of the request, the appeals court also rejected its own precedent. In the past, Gundrum wrote, the court found that a search was justified if there was a reasonable belief that evidence of OWI would be found during a search. The U.S. Supreme Court has held, though, that a vehicle search is permissible when it is reasonable to believe that evidence might be found in the vehicle.
Previously, Gundrum wrote, "We ultimately relied upon the wrong standard, as Coffee does in this appeal."
He concluded: "We hold as a matter of law that when an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found."
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