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.
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"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. 
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"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. 
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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.

​"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."