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."
By Gretchen Schuldt
A judge erred when he said that sperm DNA evidence helpful to the defendant in a sexual assault case was inadmissible under the state's rape shield law, the State Court of Appeals has ruled.
The shield law disallows evidence of a sexual assault victim's sexual history because of its prejudicial effect.
"In general, 'all relevant evidence is admissible,'” the panel said, quoting state law. The case now heads back to Sauk County Circuit Court.
The unsigned decision by the District IV Court of Appeals panel reversed a ruling by Circuit Judge Todd J. Hepler, who barred sperm DNA evidence that excluded defendant Juan L. Walker as the source of sperm found on the victim's bed sheet.
Hepler said the sperm was evidence of "prior sexual conduct" of the victim, Katherine, or someone else, and thus was inadmissible under the rape shield law.
Defendant Walker also was excluded as the source of other, non-sperm DNA evidence, but Hepler also ruled that evidence inadmissible.
Hepler said the absence of Walker's DNA on the sheet "does not necessarily equate to the absence of Mr Walker at the scene. Simply because there is no DNA there on that particular bed sheet does not necessarily mean that Mr. Walker was not there. The presence of another's DNA doesn't equate to the absence of another's DNA either."
The victim, identified only as Katherine, had been drinking before the assault, according to the appeal panel. Two friends helped her after she vomited outside a Lake Delton restaurant. Walker, whom none of the three had met before, stopped, offered to help, and eventually gave them a ride to Katherine's home, according to the appeals panel, which included Appeals Judges Paul Lundsten, Brian Blanchard, and Michael R. Fitzpatrick.
By Gretchen Schuldt
A Forest County deputy overstepped when he searched a vehicle because the driver turned the car around at night within a mile of where another person fled a traffic stop, a Court of Appeals judge ruled Tuesday.
"We cannot conclude that (Brady R.) Adams’ driving late at night, one-half hour or more after a suspect had fled the scene of a traffic stop within the vicinity of an active police search for that suspect, paired with Adams’ turning around on a street with a dead end, would lead a reasonable officer to suspect that Adams had committed, was committing, or was about to commit a crime, or any wrongdoing for that matter," District III Court of Appeals Judge Mark A. Seidl wrote in his opinion.
In reversing Forest County Circuit Judge Leon D. Stenz, Seidl threw out Adams' conviction for second offense drunk driving and sent the matter back to Circuit Court.
Sheriff's Deputy William Hujet testified in Circuit Court that he was looking for a person who fled a traffic stop when another deputy passed the word that a car was approaching. Adams was that car's driver. Hujet began to follow him.
By Gretchen Schuldt
The fraud conviction of a man who tried to win a fishing contest by entering a salmon with a one-pound weight hidden inside was upheld Tuesday by the State Court of Appeals.
"While (Michael A.) Cefalu initially suggested that the fish might have swallowed the weight from the bottom of Lake Michigan, multiple witnesses testified at trial that salmon are not bottom feeders," the three judge District III appeals court panel said in an unsigned opinion. "In addition, multiple witnesses – each of whom had cut open a significant number of fish—testified they had never encountered a fish with a similar weight inside."
It also was clear from the lack of a hole in the weight to accommodate fishing line that the weight never had been used for fishing.
The appeals panel's decision upheld rulings by Door County Circuit Judges Peter C. Diltz and David L. Weber, who presided over the trial and sentenced Cefalu, respectively.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
Cefalu is a charter fishing boat captain in the Door County area and has more than 30 years experience, the panel said in its opinion. He tried to enter the weighted fish in the Kewaunee / Door Salmon Tournament, which awarded $10,000 in cash and $1,500 worth of other prizes to the first-place finisher.
By Gretchen Schuldt
A police officer who walked briskly to catch up to a man who did not want to talk to him was in "hot pursuit" and so was entitled to enter the man's garage without a warrant, a State Court of Appeals judge ruled this week.
A police officer went to Steven D. Palmersheim's home after a witness complained that Palmersheim was "all over the road" with his car and that Palmersheim publicly urinated after leaving his car, District II Court of Appeals Judge Mark D. Gundrum wrote.
Gundrum's ruling reversed Waukesha County Circuit Judge Michael J. Aprahamian, who found there was no hot pursuit and granted Palmersheim's motion to suppress evidence.
City of Waukesha Police Officer Richard Young watched Palmersheim walk from his vehicle toward the the garage attached to his house. The garage door was open.
The officer first politely said he wanted to talk to Palmersheim, Gundrum wrote. When Palmersheim did not stop, the officer yelled at him to do so.
Palmersheim turned and looked at the uniformed officer, then turned and continued into the garage.
"The officer 'briskly walked and hustled up to try to catch up' to Palmersheim," Gundrum wrote.
Palmersheim hit the button to close the garage door, and the officer put his foot in a position to break the beam and the door to retract.
The officer asked Palmersheim to come out of the garage and he did so. He denied driving recklessly or urinating by the vehicle, but the officer saw a "stream" coming from beneath Palmersheim's vehicle that could have been urine.
Palmersheim was arrested for second offense operating while intoxicated and disorderly conduct.
"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street," Gundrum wrote. "The officer added that he 'certainly stepped up [his] pace to catch up' to Palmersheim although '[t]he distance wasn’t that far'.”
The officer had enough probable cause to arrest Palmersheim, Gundrum said.
"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street." – State Court of Appeals Judge Mark Gundrum
"Within the particular context of this case, where Palmersheim, as far as we can tell from the record, did not run from the officer but nonetheless continued to steadily advance closer to the escape of his abode, and even attempted to close the garage door, which obviously would have aided his escape, the officer’s pursuit of Palmersheim was 'immediate' and 'continuous' and amounted to a hot pursuit tailored to prevent Palmersheim’s escape under these circumstances," Gundrum wrote.
The definition of "hot pursuit" depends "on the particular circumstances of each case," Gundrum wrote.
"In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer 'stepp[ing] up [his] pace' to 'briskly walk[ing] and hustl[ing] up' to try to catch Palmersheim," he said. "The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer."
By Gretchen Schuldt
Outagamie County Circuit Judge Mark McGinnis went far beyond his legal authority when he sentenced a defendant last year to six months in jail for contempt of court, according to the State Court of Appeals.
The law provides for a maximum of 30 days in jail for the type of contempt invoked by McGinnis against Brian Mitchell, District III Appeals Judge Mark A. Seidl wrote in summarily dismissing the contempt finding.
McGinnis offered to purge the contempt finding if Mitchell, facing a human trafficking charge that later was dismissed, apologized orally and in writing, and paid a $5,000 fine.
But the law allows only a $500 fine, Seidl said.
McGinnis found Mitchell in contempt of court for rolling his eyes and moving papers around. He also later accused Mitchell of giving him a "fuck-you look."
Mitchell, then 27 and poor enough to have public defender representation, eventually served 42 days on the contempt charge.
McGinnis lifted the $5,000 fine after Carrie L. Plant, an attorney, obtained an order to appoint an attorney on the civil contempt charge if McGinnis refused to purge the fine, according to court records.
Mitchell appealed the entire contempt finding. The state did not put forward a response brief and instead filed a letter "in which it concedes the circuit court's contempt sanction constituted an unauthorized penalty," Seidl wrote.
Mitchell's appeal lawyer, Joseph N. Ehmann, in a court filing described his client as "an African-American man incarcerated far from home pre-trial because he could not post cash bond."
Before the contempt finding, Ehmann wrote, Mitchell tried to explain that his top priority was a speedy trial.
"Judge McGinnis responded telling Mitchell he 'must not' understand his rights, was 'obviously very confused,' was making 'comments that don’t make sense.'" The judge also told Mitchell he better hope that he doesn't come before McGinnis for sentencing, Ehmann wrote in his brief.
"Mr. Mitchell reacted with body language expressing frustration or exasperation, and according to Judge McGinnis, 'rolling his eyes,'” Ehmann said.
McGinnis did not make a clear record of what Mitchell did that constituted contempt, Ehmann said. The judge also failed to give McGinnis a chance to speak before imposing sanctions, as required by law, Ehmann wrote.
Seidl, in dismissing the contempt finding, said the unauthorized penalty meted out by McGinnis was enough to do so.
The state did not respond to Mitchell's argument that the excessive penalty demanded dismissal, nor did it argue that the excessive sanction could be reduced to something allowed by law, Seidl said.
"We interpret the State's silence on this point as a concession of reversible error, and we have no obligation to develop arguments to the contrary," he wrote.
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look."
The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.
A Court of Appeals panel last month overturned a prison sentence McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.
McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually sentence him.
McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.
McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.
The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day.
During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.
This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
Mitchell: I highly understand.
McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?
Mitchell: yes. I – – I will feel that's a conflict.
McGinnis: I'm not sure what that means.
Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.
McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –
Mitchell: I understand that.
McGinnis: You must not.
Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.
McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.
Mitchell: No. I -- I asked him to.
McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.
Mitchell: Me neither. Me neither.
"You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing." – Outagamie Circuit Judge Mark McGinnis
McGinnis: I’m just telling you the reality of something.
McGinnis: Okay. I want you to understand today.
Mitchell: I understood that already.
McGinnis: I wasn’t done asking the question. For some reason you have a problem with interrupting people when they are talking. You can roll your eyes. It’s really impressive.
Mitchell: You have a problem the way you talk to people.
McGinnis: Okay, good. Someday I’m going to sentence you.
McGinnis: That’s going to be a problem --
McGinnis: -- for you that day.
McGinnis: Maybe. For your sake you’d better hope it doesn’t happen because I have a pretty good memory of it and if it --
Mitchell: I’m innocent so I don’t worry about your sentencing.
McGinnis: You might be innocent. You might not have to worry about it. That’s fine.
Mitchell: All right then.
McGinnis: Are you done rolling your eyes?
"Someday I’m going to sentence you. ... That’s going to be a problem...for you
A few moments later, after another brief exchange, Mitchell urged McGinnis to proceed with the hearing.
McGinnis: I am trying, but you are interrupting and creating nonsense by rolling your eyes and other antics.
Mitchell: That’s not interrupting if I am rolling your (sic) eyes. I can roll my eyes.
McGinnis: No, you can’t roll your eyes, sir. I am going to find you in contempt of court for your conduct today, for the disrespect to the Court. Is there anything you’d like to say before I impose a consequence for that?
McGinnis: I’m going to sentence you to six months in the Outagamie County Jail in lockup. That sentence begins today. You may purge that contempt by writing an apology letter to me.
Mitchell: I will.
McGinnis: And, secondly, by appearing here in court and making a verbal apology.
Mitchell: I will.
McGinnis: And by paying a fine of $5,000. If you purge that contempt by doing those three things, then that contempt is purged and you’re no longer sitting. Otherwise you will sit for six months in lockup. Anything on that issue, sir?
McGinnis: Okay. So you can keep rolling your eyes and then I will keep giving you six months, or you can grow up and handle yourself the way that people are supposed to handle themselves in court. Do you have any questions about that?
Mitchell: Do I get appointed an attorney? Can I?
McGinnis: I asked if you had any questions about that?
Mitchell: Can I argue that?
McGinnis: Argue what?
Mitchell: The sentence you just gave me, your charge.
McGinnis: You can do anything you want you can keep rolling your eyes if you want, like you said. You told me a couple minutes ago you can roll your eyes. Sure you can go ahead and roll your eyes. That I can go ahead and do what I want to do.
Next: Another hearing, and the judge drops the Fbomb from the bench.
By Gretchen Schuldt
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison, a State Court of Appeals panel ruled Tuesday.
The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.
"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."
The court ordered that Lamb be sentenced again by a different judge.
Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.
Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance.
He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.
He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea.
During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.
At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.
''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"
"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"
Lamb said he understood.
McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?"
Lamb said he did.
"You’re going to prison today because we’re sick and tired of you."
McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.
"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you."
Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."
McGinnis sentenced Lamb to two years in prison and two years on extended supervision.
McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.
The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said.
Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said.
McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.
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