Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer

Posted on Categories Wisconsin Criminal Law & Process, Wisconsin Supreme Court

Supreme Court sealThe Wisconsin Supreme Court recently considered a number of petitions for review and voted to accept six new cases.  (As I said before, I am planning to write here whenever the Wisconsin Supreme Court accepts new cases.  This is the second of that series.)

The cases accepted today include three criminal cases and three civil cases.  This post describes only the three criminal cases.  I’ll blog next about the civil cases.

Probably the most interesting of the three criminal cases is State v. Welda, 2007AP2024-CR.  State v. Welda presents questions of interpretation and constitutionality of Wisconsin’s disorderly conduct crime and hate crime enhancer penalty.  The underlying charges stem from incidents in which three Janesville residents used offensive racial epithets against a number of African-American residents, including two children.  State v. Welda, 2008 WI App U 135, ¶ 2-5.  When police arrived at the scene, 10-15 residents had gathered in the area of the disturbance.  Id. ¶ 2. In addition to describing their African-American neighbors with inflammatory racial epithets, one of the Defendants also waved a Confederate flag during the incident, and two of the Defendants continued to speak the racial epithets after police directed them not to stop.  Id. ¶ 3-5.

At the circuit court, all three Defendants succeeded in motions to dismiss the hate crime enhancer charges, but on two different grounds:  two Defendants argued that the facts failed to support the charge under the hate crime enhancer, and the thid argued that the hate crime charge was multiplicitous of the disorderly conduct charge. Id.  The circuit court granted both motions, and the State appealed.  The Court of Appealsheld the opposite, determining that the facts were sufficient to prove both the disorderly conduct charge and the hate crime enhancer, and that the charges were not multiplicitous.  

Only one of the Defendants, Welda, petitioned for review by the Supreme Court, and the news release on the court’s website states that “the court is expected to consider three issues:

– If Wisconsin’s hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer? 

– Whether Wisconsin’s hate crime law, § 939.645(1)(b), Stats., is unconstitutional as applied to the facts of this case.  See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)?

– Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech?”

The second newly accepted criminal case, State v. McClaren, 2007AP2382-CR, should clarify whether a defendant claiming self-defense may be ordered to disclose, before trial, the evidence he will present regarding prior specific instances in which the victim was violent.  

Evidence of a victim’s prior violence is called McMorris evidence, after McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).  The Defendant in McClaren sought to admit such evidence at his trial on various criminal charges relating to an incident in which he hit another man, Conrad Goehl, with a pickaxe.  See State v. McClaren, 2008 WI 118, ¶ 2-5.  McClaren had mentioned some of Goehl’s alleged violence in his police interview, and the state did not oppose McClaren’s motion to introduce McMorris evidence.  The circuit court, however, was concerned about the risk of surprise if any violence not mentioned in the police interview was introduced in the trial:  

During the motion hearing, the circuit court ruled that evidence of any specific alleged prior acts of Goehl’s violence that McClaren mentioned to police in the videotaped interview would be admissible at trial without McClaren providing any further description of those alleged acts. The court went on, however, to express concern about additional evidence of McClaren’s knowledge of Goehl’s violent behavior that would come in through witness testimony, and whether McClaren would attempt to present evidence that may not be admissible and would unduly influence the jury.

Id. ¶ 4.  Because of these concerns, the circuit court “ruled that McClaren must provide the State, before trial, with ‘a [written] summary of all specific instances of the victim’s violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred,'” other than the instances discussed in the police interview. Id. ¶ 6.

McClaren took an interlocutory appeal, and the court of appeals reversed, holding that “the order of the circuit court would operate, in essence, as a discovery device, and would therefore be inconsistent with WIS. STAT. § 971.23(2m) and contrary to” established law–“the principle that the right to discovery in criminal cases is limited to that which is provided by statute.” 

The decision in McClaren should help clarify the extent of the trial court’s authority to order such pretrial disclosure.

In the last of the just-accepted criminal cases, State v. Long, 2007AP0737-CR, the Defendant Michael Scott Long seeks review of whether the established facts are sufficient to support his conviction under Wisconsin’s three-strikes law, Wis. Stat. § 939.62(2m)(b)1 and (c).

The facts underlying Long’s convictions were summarized as follows by the Wisconsin Court of Appeals: 

Long approached the front desk at a hotel wearing white spandex shorts and asked the desk clerk, Bobbi D., if the spandex was supposed to be revealing. She responded it was supposed to be tight. Long then requested that she accompany him to a nearby breakfast room. There, he asked her to rate his penis. Long asked if he could hug her, and Bobbi D. answered “No” and started to back away. Long then grabbed her and held her tightly and forcefully from the front and from behind, with his clothed penis touching her buttocks, inner thigh and groin area. Long then went across the room and pulled down his pants, exposing his penis. Bobbi D. turned away and left the room. 

Long, 2008 WI App U 148, ¶ 2.  Based on these facts, Long was convicted of false imprisonment and second-degree sexual assault, and the court enhanced his sentence with the three-strikes law, based upon his two prior convictions in Minnesota for fourth-degree criminal sexual conduct and for burglary.  The burglary conviction was based upon an incident in which Long entered an apartment and subjected women to behavior similar to what he subjected Bobbi D. to in the Wisconsin incident.  Id. ¶¶ 8-9.  Long argued that the burglary conviction was not a “serious felony” for purposes of the three-strikes penalty enhancer because his conduct in the apartment following his illegal entry would only have been chargeable as a misdemeanor crime here.  Id. ¶ 8.  The circuit court and the court of appeals both rejected Long’s argument, along with other challenges to his convictions.  

The Wisconsin Supreme Court describes Long’s arguments on appeal as follows:

Long claimed the Minnesota burglary conviction would not have constituted a serious felony in Wisconsin because the crime he committed after making an illegal entry would have constituted fourth-degree sexual assault in Wisconsin, a misdemeanor. Long also argues the “force” used in the case now on appeal is not the type of force envisioned by the Legislature as second-degree sexual assault.

Next post: the civil cases, including Vince Biskupic’s libel and slander lawsuit.

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