State v. Noble

Plaintiff-Respondent,† State of Wisconsin,

v. Defendant-Appellant. Debra Noble, Appeals Court of No. argument 4, 99-3271-CR. Oral December 2000. Decided May 2001.

2001 WI App 145 (Also 317.) reported in 629 N.W.2d granted. to review †Petition defendant-appellant,

On behalf of the the cause was on submitted the briefs of of Brinckman Jeff Law Brinckman S.C. of Prairie du Office, Chien. plaintiff-respondent, On of the behalf the cause Doyle, attorney was general, on submitted the brief of E. James Marguerite attorney M. Moeller, and assistant general. Dykman, Roggensack P.J., Mason,

Before and JJ.1 appeals ¶ DYKMAN, 1. P.J. Debra Noble from judgment convicting perjury. her of While she identi- many issues, fies seven are interconnected. We conclude that there are three we issues need to (1) address. These are: Was the evidence sufficient to (2) process

convict her? Was she denied due of law destroyed investigator because the State's the of bar, at the that them about present bought had her she been when husband bartender, from a and that he had done so for cocaine past years. the two Judge April

¶ 23, 1999, 5. On Kirchman con- (1999-2000) § John a Wis. Stat. 968.26 Doe vened only transcript inquiry.2 partial of the have a We following: inquiry's proceedings, which shows the are to All to the Statutes the references Wisconsin unless noted. 1999-2000 version otherwise STAT. WISCONSIN provides part: in 968.26 § person complains judge a to that he has reason If or she to jurisdic- that crime has been committed within his or her believe tion, complainant any judge and the examine the under oath shall by may, request produced him and at the of witnesses or her and shall, attorney subpoena the and examine other witnesses district to ascertain a crime has been committed and whom whether judge may proceed the extent to which the exam- committed. The may judge's The ination is the discretion. examination be within THE right. permit COURT: All I'm going to other you here some persons questions get to ask of to to sought the facts which to are be disclosed here. Mr. Matthews then? Yes,

MR. District Attorney]: [The BAXTER Your earlier, Honor. As Agent we discussed Special David the Department Matthews from of Justice will be conducting the examination. Sir.

SPECIAL Thank AGENT MATTHEWS: You. BY EXAMINATION SPECIAL AGENT MATTHEWS:

Q: Noble, Ms. I want pretty to much focus on

things that had an to opportunity we discuss your employment April 9th, at of place on you Cabela's. Do recall.... 6. questioned Matthews about their con- Noble

versation 1999.3 denied April telling Noble Matthews about at the bar. His drug trafficking ques- of her at tions the John and her answers inquiry questions those are the basis of perjury charge her. against adjourned may Any and be secret. witness examined under this may present

section have counsel at the examination but the coun- client, shall not be examine sel allowed to his or her cross-examine argue judge. appears probable other witnesses or before the If it testimony given that from a crime and has been committed who it, may writing signed complaint committed be reduced to and verified; thereupon a and warrant shall for the arrest of issue accused. objected It is not surprising no one Matthews ask ing questions. Though attorney at the present Noble's was John inquiry, explained although Doe the trial court that Noble could attorney, attorney with her the not participate confer could in inquiry. judge may See A § WlS. STAT. 968.26. John Doe even (1929). attorney. Op. Atty. a 18 563 exclude witness's Gen. 541 THE OF EVIDENCE SUFFICIENCY perjury State ¶ trial was not a where 7. This alleged when, a John Doe lied that a defendant committing inquiry, Instead, a crime. he or she denied asserting lied at the John Doe that Noble the State is telling inquiry and Mat- the detective when she denied trafficking drug Thus, at the to obtain bar. thews about required was to convince conviction, a the State telling jury police the truth about that the officers were April Noble, she lied and that 9 conversation with their telling inquiry she denied them when at the John drugs. any information about ¶ 220, 226, 2d 479 Petrone, v. 166 Wis. 8. State (Ct. 1991), App. the elements of the 212 set out N.W.2d (1) perjury: An oral statement while under crime of (3) (2) made; The oath; The was false when statement the statement was true defendant did not believe that (4) it; The statement was made in he or she made when (5) judge; proceeding The a statement was a before proceeding. that she Noble concedes material to her while under made the statements attributed they proceeding in made before oath and were court. may for not a criminal conviction 9. We reverse

insufficiency evidence, unless the viewed evidence favorably conviction, the State and the is so most probative and force that it can be insufficient value acting fact, matter of law that no trier of said as a guilt beyond reasonably, a reasonable could have found DeRango, 1, 30, 2d State v. 229 Wis. N.W.2d doubt. (Ct. 1999), App. 721, 'd, 2000 WI 236 Wis. aff evidence was sufficient to 613 N.W.2d 833. The State's pass this test.

False When Made way

¶ 10. Noble asserts that there is no to know merely repeating hearsay April whether she was on 9, way April and that there is no to know whether the statements attributed to her were true or false. She testimony also focuses on Matthews' trial that her April statements on 9 were "inconsistent" with her tes- timony inquiry. at the John Doe But whether Noble's April 9 statements are true or not is irrelevant. She inquiry was asked at the John Doe whether she made April certain statements on 9. She either made the statements attributed to her or she did not. If she did April testimony 9, not make the statements on then her inquiry April at the John Doe was true. If she made the her, 9 statements then attributed her John Doe testi- mony that she did not make the statements was false when made.

¶ 11. Noble also asserts because Matthews that tape April did not record the 9 interview or have a court reporter present, require sign or her to a written state testimony ment, Matthews' as to what she said at was paraphrase really said, a she best what and insuffi cient to show a false statement. But cites Noble no authority requiring tape recording, transcript, a a or a signed falsity statement to show the of a statement. In 545-46, v. State 96 Wis. 2d 292 N.W.2d Shaffer, (Ct. 1980), App. arguments unsup we said that ported by authority inadequate relevant and do were 809.19(1)(e), comply § not with Wis. Stat. and that we arguments would refuse to consider such the future. authority holding only If that evi there is relevant tape signed recorded, transcribed, dence that is or support perjury conviction, defendant is sufficient to depart see no reason to has failed to cite it. We Noble from now. Shaffer assertion, "inconsistent" that 12. As to Noble's testify did occurred. Matthews

too overstates what April statements on 9 were "inconsistent" with Noble's testimony. But was her John Doe when Matthews inconsistency, explain he did so asked at trial to this April testified: "On 9 she described with exactitude. He relationship the source in which Jean Mattos was period And had for a inquiry of cocaine for Dan Noble. been testimony at the John Doe was to time." Noble's contrary: Q. Dan Okay. you deny telling Do us now that from Jean getting

had been cocaine Bobbie Serrano and her mother Jean Mattos for two years? anything I this.

A. don't know about Q. us that that date? you deny telling So on Yes, A. I do. jury

A could Matthews as to what reasonable believe April beyond him and conclude a rea- Noble told on testimony that her John Doe was false sonable doubt made. when

Knowing Falsehood selectively quotes questions

¶ 13. Noble from argues inquiry. from asked of her at the John Doe She questions prove those that the State did not that she false made them. knew her statements were when she record, But this is not the test. We do not examine the has, to find evidence that she did not know of as Noble Beuthin, statement. See Staehler v. her false 206 Wis. (Ct. 1996). 610, 617, 557 N.W.2d 487 App. Noble has the test backwards. We examine the record to find evi Id. The following dence to support jury verdict. show that a excerpts jury reasonable could have con beyond cluded a reasonable doubt that Noble knew that what she testified to at the John Doe inquiry was false. The questions were asked at trial district attorney, and the answers were given by Matthews:

Q: you Can tell us a little bit about what she

[Debra Noble] said along those lines? A: afternoon, She said that on that prior to the

police arriving, that she was with her hus- Dan Rowdy's band Noble at Bar and that she present was when he made contact with Jean Boland in order to obtain 1/8 ounce of cocaine earlier, and that he had ordered a week that Dan wasn't there when the police came gone get because he had to money pay for that cocaine.

Q: Okay. Did give you any Miss Noble informa- any

tion or make statement an regarding actual offer that she overheard Jean Boland to her husband Dan? Yes,

A: she did.

Q: ahead, Go please. actually A: She said that Jean Boland had Dan quantities, offered to sell two 1/8 or 8- them, as referred to and balls she of cocaine interjected that she had herself into that and essentially doing Dan from that prohibited only get and said that he could the one. She him to get didn't want two. testimony testimony at Noble's this with

We contrast inquiry. the John now,

Q: you Could tell us what [of Noble] Debra relationship that Dan had with Jean was the [Boland]? there.

A: He was —she's bartender Q: any between the youDo know of involvement respect

two of them with to controlled substances? No, I

A: don't. Q: you told us Okay. My recollection was Boland a

Dan had ordered cocaine from Jean April 2nd and that on 2nd prior April week drugs there to that he had pick he was up you deny telling earlier. Do ordered week us that? you're talking

A: I don't know what about. Q: deny telling us that? youDo A: Yes. engages disputes

¶ 14. in semantic as to Noble meaning of "recollection" and "know." She asserts hearsay, questions and that some of the involved speculates jury that the did not know the difference "hearsay" knowledge." "personal She is between testimony paraphrased her concerned that Matthews' herring, espe- April a red 9 statements. This is best authority cially her since cites no for assertions. Noble questions and See 96 Wis. 2d at 545-46. The Shaffer, quoted not difficult to under- answers we have are average by persons stand, and can understood of be drug dealing intelligence. asked Noble about Matthews Rowdy's April at he bar when interviewed her on 9. She specific beyond any made answers that indicated doubt great purchase that she knew a deal the about and sale cocaine, and of that her husband was involved in the questioned transactions. When weeks later at two inquiry, knowledge drug John Doe denied Noble of dealing only at the are bar. There two conclusions one quoted. can from the material draw we have Either lying lying Matthews was at trial or Noble was at the inquiry. jury If, concluded, John Doe as the Matthews telling jury easily truth, was entitled to was telling infer that Noble knew she was a lie at the John inquiry. Doe

Materiality authority

¶ 15. Noble cites no for her assertions target that because Arlene Melvin was the of the John concerning proceeding, evidence others was not inquiry. explained material that We have Shaf- type 545-46, 2d at condemns this fer, Wis. argument, again depart reason to from we see no logic And see no that a now. we Noble's view Shaffer John Doe designed inquiry a is to determine whether particular individual has committed a crime when the supreme Doe com- court has concluded that John plaint particular v. need not name a accused. See State Washington, 808, 822, 266 N.W.2d 597 83 Wis. (1978). show, in the trial court or Noble has failed to only person pinpointed in the John Doe here, that the dealing drug complaint Melvin, and that was inquiry. Rowdy's To the con- not a concern of the was trary, that the Prairie du Chien detective testified inquiry subject a Crawford matter of the John Doe was County drug ring operated, part, at least in from by frequented There Noble and her husband.

the bar John Doe sufficient evidence to show Noble's was investigation. testimony was material to the OF EVIDENCE DESTRUCTION right that her due 16. Noble next contends to destroyed process Matthews his was violated because original April 9 her. Accord- notes of the interview with they ing exculpatory Noble, the notes were because testimony that her at the John Doe would have shown dur- consistent with her statements to Matthews was ing April 9 interview. right pretrial ¶ 17. A defendant's access to exculpatory prepare needed to a defense is evidence by protected the Due Process Clause of the Fourteenth 881, 885, Greenwold, Amendment. State v. Wis. (Ct. 1994). App. The defendant's due 512 N.W.2d 237 process rights by are violated the destruction of evi- (1) destroyed apparently dence if: the evidence is exculpatory and of such a nature that the defendant by comparable would be unable to obtain evidence (2) reasonably means; other available or if the evidence potentially destroyed exculpatory was and was in bad faith. Id. at 885-86. argued

¶ 18. Noble has not that Matthews destroyed faith, his notes in bad so she must demon- they apparently strate that the evidence contained is exculpatory and of such a nature that she could not reasonably obtain it other available means. How- reasoning support ever, she offers no her claim that original exculpatory Matthews' notes were other than general that the assertion notes would have shown say reported. that she did not She what Matthews testimony introduced no other evidence than her about April 9 interview to establish that the notes con- exculpatory evidence, tained whereas Matthews testified that he used the notes to write his formal just days report interviewing a few after Noble. Before destroying report against notes, he checked the report them to ensure that the was accurate.4 Further- more, the Prairie du Chien detective's recollection of April what Noble said on 9 was consistent both with report testimony. Matthews' and his trial Therefore, we conclude that Noble has not demonstrated that the any apparently exculpatory notes contained evidence. UNAUTHORIZED PRACTICE OF LAW argues transcript ¶ 19. Noble that the of her tes timony inquiry at the John Doe should have been suppressed judge's because the circuit court decision to permit questioning by permitted Matthews the unli practice therefore, censed of law and an abuse of the proceeding. John Doe She contends that in State v. Cummings, 721, 746, 199 Wis. 2d 546 N.W.2d 406 (1996), supreme suppression court concluded that remedy appropriate was the for abuse of a John Doe proceeding. The State counters that all did Matthews attorney, approved was "assist" the district as was supreme in O'Connor, court State v. 77 Wis. 2d (1977), questioning if 281, 252 N.W.2d 671 even his practice suppression law, the unlicensed of constituted appropriate remedy. disagree is not an with the We State's characterization of Matthews' conduct and con- destroyed pursuant

In Wisconsin, the unauthorized of law practice may in result dismissal of an action when it a court deprives Jadair Inc. v. United States Fire Ins. jurisdiction. (1997). Co., 187, 211, 209 Wis. 2d 562 N.W.2d 401 In claim, 21. order to examine Noble's we must ¶ determine actions whether Matthews' at the John Doe constitute the Mat- inquiry practice unlicensed of law.5 thews is not a He falls under none of the lawyer. court's authorized supreme exceptions practice for 5 attorney generally responsible The district is for examin ing proceeding. Washington, witnesses in a John Doe v. State 83 (1978). n.10, However, here, 266 Wis. 823 N.W.2d 597 although attorney present, ques the district was he turned the tioning of Noble over to Matthews. (1982). by nonlawyers. See SCR 50.03 Matthews'

of law questioning behest; done at the State's of Noble was repre therefore, we conclude that when he did so he only question requires the State. The some sented inquiry pro the John Doe a discussion is whether ceeding was record, commissioner, a court of a before court judicial state, a this as or tribunal of described Wis. 757.30(2). § Stat. supreme already

¶ has decided 22. The court investigation proceeding a in a that a John Doe is not Washington, It court of record. 83 Wis. 2d 828. was by However, not conducted a court commissioner. a judicial judge presides in "a who a John Doe is officer essentially judicial an function." Id. at 823. who serves judge "[T]he Doe must 'conduct himself as a neu- John determining probable magistrate in tral and detached proceed- [the] cause which is the basic function of. . . " "[a] ing.' A defined as Id. at 824. "tribunal" has been adjudicatory body." Black's court or other Law Diction- (7th 1999). ed. Because the function of the ary proba- presiding judge adjudicate there is is to whether a crime has committed ble cause to believe been given that the individuals, or we conclude individual during judicial judge of this state is a tribunal Accordingly, proceeding. because course of John represented the State has no law license and Matthews proceeding by questioning Noble, he in the John Doe practiced law without a license.6 disagree the State that O'Connor 23. We with permits O'Connor involved Matthews' conduct. presiding judge's scope of the discretion whether the timely pres The Bar of Wisconsin is This is a issue. State the future of the bar. ently conducting statewide discussions on practice of law. topics of the is the unauthorized One 551 permitted grant attorney general's him to an assistant request Department to have a of Justice law enforce- present being ment officer when witnesses were notwithstanding examined, the secret nature of the proceeding. O'Connor, 77 Wis. 2d at 280-81. There is suggestion questioned in no O'Connor that the officer any of the witnesses. prac-

¶ 24. Given our conclusion that Matthews question license, ticed law without a then is remedy whether there is a for the use of State's an person unlicensed to examine witnesses the John investigation, remedy so, Doe and if what that should significant; persons practice be. The violation is who guilty may are law without license of a crime and be jailed year, being fined or for a in addition to held $500 757.30(1). contempt § of court. Wis. Stat. We are reluctant to conclude that there is no for the sanction practice investiga- unauthorized at a law John Doe possibility tion other than the remote prosecution. of criminal attorneys great District have discretion in deciding prosecute. State, whom to Sears v. 94 2dWis. (1980). generally 128, 133, 287 N.W.2d 785 Since it is attorney the district who examines witnesses at a John investigation, Washington, n.10, Wis. at 823 unlikely asking person it is that after an unlicensed to investigation, examine witnesses at a John Doe a dis- attorney prosecute person trict then would who had just unlikely done so. And it is also that a John Doe judge just non-attorney prac- had who authorized a tice law without a license then would exercise his or her by issuing complaint against discretion a criminal non-attorney.7 per- If our conclusion that unlicensed 968.02(3) Wisconsin Stat. reads: § attorney If a district refuses or is unavailable issue a com-

plaint, judge may permit filing complaint, a circuit of a if the a examine witnesses John Doe sons cannot significance, investigation to future there must is have significant a more than a determination of be sanction error. harmless through Suppression of 25. evidence obtained practice possible of is a sanction.

the unauthorized law general recognize rule that evidence is to be We suppressed only where the evidence was obtained rights. See of an individual's constitutional violation ( Verkuylen, 59, 61, 352 668 State v. 120 Wis. 2d N.W.2d 1984). App. exceptions rule, to this Ct. But there are exception is where the State abuses John and one procedure.8 a Doe investi Where the State uses John gather gation improperly in a evidence for use prosecution, suppression pending of the testi witness's remedy. mony appropriate v. and its fruits is an State (Ct. 185, 206, 316 143 106 Wis. 2d N.W.2d Hoffman, 1982). recognized supreme App. has this The court remedy. gather used to evi- only the John Doe is

It is when crime for which the relating to the specifically dence person probable judge cause to that the be finds there is believe conducting hearing. If the charged after a has committed an offense attorney complaint, to issue a he or she shall be district has refused may hearing hearing shall ex and attend. The be informed of the parte right of cross-examination. without produce the State fails to exception exists where Another proceeding. in a civil legally properly demanded evidence suppression. is evidence remedy for the State's violation The 118, 122, Hine, 318 N.W.2d 383 City v. 107 Wis. 2d See Lodi (1982). discovery comply with And where the State fails to case, possible suppression is in a criminal evidence order 107, 116, 318 N.W.2d Humphrey, 107 Wis. State v. sanction. (1982). being defendant is tried that an proce- abuse of the dure occurs. As the court of appeals correctly concluded in Hoffman, appropriate remedy for such an proceeding abuse of John Doe is sup- any pression of evidence so obtained.

Cummings, 199 2d.at Wis. 746. possible

¶ 26. Another sanction for the State's practice unauthorized of law would be to exclude the through evidence obtained its unauthorized act. While might appear suppressing this to be identical to evi- dence, the are In two different. State v. Eichman, 155 (1990) (citations 552, 562, Wis. 2d 456 N.W.2d 143 omitted), supreme explained: the court agree

[W]e with Mr. Eichman that there ais distinc- tion, one, a albeit fine between "suppressing" "excluding" evidence and evidence. The gen- former erally bars admission of evidence at trial as a result governmental misconduct, such as a constitu- tional generally violation. The latter only involves a violation of the rules of evidence. Though ¶ 27. examined a different Hoffman investigation,

abuse of a John Doe we noted in Hoff- only remedy man that the effective for the abuse was to prohibit government profiting the from from the abuse. 106 2d Hoffman, And, Wis. at 206. as we noted, have only remedy that is also true The here. effective for the persons investigations use of unauthorized in John Doe prohibit profiting is to the State from from the abuse.

¶ 28. Prosecutorial misconduct can in result a against ultimately sanction State, which can charges against include dismissal of the a defendant. ( See Lettice, State v. 205 2d 347, Wis. 556 N.W.2d 376 1996). App. prosecutor brought Lettice, Ct. In a crimi- lawyer charges against either to a defendant's nal lawyer delay jury disqualify to an imminent or 349, 354. We concluded that this trial. prosecutorial Id. at prejudiced in the defendant misconduct underlying court's case, and we affirmed the trial granting Id. at 355. On the defendant a new trial. order Jeop- appeal, that the Double a second ardy we concluded of the Fifth Amendment to the United Clause prevented Constitution the defendant from States being Lettice, time. See State v. Wis. tried second (Ct. 1998). App. 69, 79, 84-85, 585 Let- N.W.2d investigation case; a criminal a John Doe is tice was attorney's at issue not, and the district misconduct was investigator's unauthorized Lettice, in while here an practice raises the issue. But both cases of the law It is from its unauthorized acts. the State benefited resulting justify an unautho- a benefit from difficult Respect act. for the law is diminished when rized person charged enforcing permitted the law is

with the law. violate holding familiar the cases 29. We are all with right guaran police violate

that the sanction when suppression by is States Constitution teed the United But we cannot from the violation. of evidence obtained following directly cases cases, because use these (1966), that U.S. 436 hold Arizona, v. 384 Miranda exclusionary criminal rule reserved for is an Miranda Village Kunz, 126 Falls v. Menomonee actions. See of 1985). (Ct. App. Still, 143, 147, 376 N.W.2d Wis. by though con State is constrained the the notion may both with statute, it violate stitution and governed impunity, should concern is a notion that society. in a free

¶ 30. While the issue is free doubt, not of we con- clude that if the choice is between sanction and no sanction, the better conclusion is that there should abe through sanction when the State obtains information practice the unauthorized of law. The unauthorized practice legislature crime, of law is a and both the supreme permit only attorneys practice court (2000) 757.30(1); (qual- § law. See Wis. Stat. SCR 40.02 law). necessary practice ifications hardship, There is no ultimately and the State benefits, when a attorney required enough district is to become familiar with a case to examine a witness at a John Doe investi- gation. We conclude that dismissal of a criminal complaint unnecessary is an sanction. But exclusion of testimony a witness's obtained when an unlicensed person investigation examines a witness a John Doe properly right investigate balances the of the State to allegations prohibitions of criminal conduct with the against practice Accordingly, the unauthorized of law. judgment we reverse Noble's conviction, of and remand for a new trial. As a sanction for the State's unautho- practice rized law, of we conclude that if when and re-tried, Noble is the trial court should exclude infor- practice mation obtained the State's unauthorized of law.

By Judgment reversed and cause Court. — remanded with directions. (dissenting). ROGGENSACK, 31. J. IWhile

join majority opinion respects, in almost all because suppression1 I have concluded that of Noble's John Doe majority The chooses to characterize what it does as an evidence, exclusion evidentiary objection, but without an this

556 majority testimony, it con- for what exacted improper, practice law, of is is the unauthorized cludes contrary binding precedent, unnecessary I to respectfully dissent. majority applies,

¶ 32. To reach the sanction trial, a that determines, the benefit of it first without practice engaged of law in the unauthorized Matthews 757.30(1); contrary § then it assumes to WlS. Stat. prosecuted probably for this not Matthews will be crime: is no sanc- to conclude that there

We are reluctant at a John of law practice tion for the unauthorized possibility the remote investigation other than attorneys have District prosecution. of criminal . . . deciding prosecute. discretion in whom great per- an unlicensed unlikely asking is that after [I]t at a John Doe to examine witnesses son prose- then attorney a district would investigation, so. just who had done person cute "[W]e majority Majority ¶ reasons, con- then at 24. The and no if is between sanction clude that the choice there should be a conclusion is that sanction, the better through information when the State obtains sanction Majority practice ¶at 30. of law." the unauthorized preliminary that it matter, I conclude a 33. As improper apply the State when a sanction to is 757.30(1), § the unauthorized violation of WlS. Stat. proven Second, practice trial. law, has not been solely prosecution the discretion of not within is attorney majority opinion The asserts. as the district judge requires § 968.26,2 statute, WlS. Stat. John Doe State, 201 exclusion, See Ware v. suppression. it is a is not an (1930). 425, 427, 230 N.W. Wis. part: in relevant states 968.26 § Stat. Wisconsin complainant petition to examine a in a John Doe under any produced by oath, as well as witnesses that com- plainant, complainant "once a John Doe has shown that he or she has reason believe that a crime has been committed." Reimann v. Circuit Court Dane for County, 214 605, 615, Wis. 2d 385, 571 N.W.2d 388 (1997). possible attorney It is that the assistant district participate who invited in Matthews to the John Doe proceeding testimony that formed the basis for used perjury later in Noble's trial will refuse to file a com- plaint against attorney so, If Noble, Matthews. her or any peti- other concerned citizen could file a John Doe alleging "objective, tion with the circuit court factual support assertions sufficient to a reasonable belief that by a crime has been committed" 623, Matthews. Id. at ques- 571 N.W.2d at 391. The circuit court would then presented witnesses, tion review the evidence and complaint determine whether to issue a and a warrant supreme for Matthews's arrest. As the court procedure adopt today instructed, "The John Doe we gives impartial jurist citizens access to an and neutral complaints." for review of their criminal 624, Id. at Therefore, N.W.2d at 392. there are more than the two suppression consequences choices of or no for Mat- majority's thews's conduct at the John Doe that the opinion presents.

¶ suppression Third, 34. the sanction of of evi- through proceeding dence obtained the John is person complains judge If a to a that he or she has reason to believe jurisdiction, that a crime has been committed within his or her judge complainant any shall examine the under oath and witnesses produced by appears probable him or her. ... If it from the testi- mony given that a crime has been committed and who committed it, complaint may writing signed be reduced to and and veri- fied; thereupon a warrant shall issue for the arrest of the accused. initially contrary long-standing precedent, set forth supreme State, 425, court Ware v. Wis. (1930), many and reaffirmed times there- 230 N.W. 80 recently by Krenke, in Peckham v. after, most this court (Ct. 1999). App. 601 N.W.2d 287 229 Wis. Ware, 35. In a woman had been convicted of diary, adultery had based on her which her husband police prosecution. stolen and turned over to for her diary supreme The court refused to exclude the as evi- agreed diary though crime, dence of her even it had "[t]he wrongfully explained, doctrine obtained. It been illegally should of the exclusion of evidence obtained be strictly procuring of confined to those cases where right some constitutional of the evidence has violated Ware, 427, 230 at 81. the defendant." 201 Wis. N.W. ( Mieritz, 571, In 193 534 N.W.2d 632 State v. Wis. 1995), police App. in officer's role the cocaine Ct. purchase used to convict Mieritz was held to have been improper, not excluded because but the evidence was of Mieritz's constitu- the officer's actions violated none rights. 633. 574, Id. at 534 N.W.2d at tional suppression Furthermore, rule, is not the Ware as a sanction unless a constitutional violation available proceedings. applied in occurred, has is also civil (cita- 292 Peckham, 787, 2d at 601 N.W.2d at 229 Wis. omitted). summary,.. exclusionary rule "In . the tions only proceedings applicable in and criminal is civil sought excluded was obtained the evidence to be where right a statute that of a constitutional or violation wrongfully suppression specifically requires or ille- (citations gally omitted). as a sanction." Id. evidence obtained get majority opinion tries to around While precedent v. dicta from State with obiter this clear (Ct. App. 185, 106 Wis. 2d 316 N.W.2d Hoffman, Cummings, 1982), 199 Wis. 2d from State v. (1996), Accordingly, I I 546 N.W.2d cannot. respectfully dissent. notes (3) investigation? transcript his and Should the of a proceeding per- John that formed the basis for the jury charge person be the excluded because who questioned her at the John Doe was not authorized to practice law? ¶ 2. We conclude that evidence was sufficient to convict. We also conclude that of the the destruction investigator's deny process not notes did Noble due of finally law. We that the for conclude correct sanction practice of of the unauthorized law is exclusion transcript. John Doe therefore We reverse remand proceedings opinion. for consistent with this Judge sitting by assign special Circuit James Mason is pursuant Program. Exchange ment the Judicial underlying ¶ Noble's conviction are 3. The facts suspected police complicated. Prairie du Chien not "Rowdy's" April activity drug bar, it on and raided present occurred, was when the raid 1999. Debra Noble just prior Dan left raid. her had but husband telephone in which raid, Dan received a call After something you off, effect of or he told to the "back was drug Dan a dead man." Debra and concluded are police that Dan was informant dealers believed They just raid. he left the before the had bar because police frightened this and notified the threat. were April 9, 1999, 4. a state narcotics enforce- On agent, Matthews, and a du Chien David Prairie ment police drug activity questioned Debra about detective conversation, took notes of the at the bar. Matthews destroyed report. preparing he after a written which According Matthews, Debra told to the detective and including drug trafficking

Notes

that he notes Matthews testified his Department policy Justice that had been in force since of 1988. law, it the unlicensed of which practice elude that was the John Doe should not have judge permitted. 20. Wisconsin 757.30 describes when Stat. § It activities constitute law without a license. practicing provides: Penalty for without license. practicing (2) Every person appears agent, repre- who as attorney, any sentative or for or on behalf of other firm, any or association or cor- person, partnership, in in poration any proceeding any action or or before record, commissioner, judicial court of court or tri- States, state, any bunal of the United or or who otherwise, court, compensation or out of for or pecuniary gives professional legal reward advice ordinary not incidental to his or her usual or busi- ness, or any legal any renders service for other firm, any or association or cor- person, partnership, poration, practicing shall be deemed to be law meaning within the of this section.

Case Details

Case Name: State v. Noble

Court Name: Court of Appeals of Wisconsin

Date Published: May 24, 2001

Citation: 629 N.W.2d 317

Docket Number: 99-3271-CR

Court Abbreviation: Wis. Ct. App.