On Point blog, page 10 of 25
Expert on child victim reporting behaviors met Daubert standard
State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)
The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).
Plea withdrawal denied due to lack of evidence of intoxication during plea hearing
State v. Santos Lee Hernandez, 2017AP62-CR, 7/11/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Hernandez filed a postconviction motion arguing that he pled guilty to lewd and lascivious behavior while he was drunk–so drunk that he incorrectly told the court that he had not consumed alcohol within the previous 24 hours, that he understood the rights he was waiving, and that there was a factual basis for his plea. In rejecting his claim, the court of appeals commits an error that continues to dog postconviction motions.
SCOTUS delves into structural error
Weaver v. Massachusetts, USSC No. 16-240, 2017 WL 2674153 (June 22, 2017); affirming Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016); Scotusblog page (including links to briefs and commentary)
Members of the public–specifically, Kentel Weaver’s family–were excluded from the overcrowded courtroom during jury selection for his trial. Violations of the Sixth Amendment right to public trial have been called structural errors not susceptible to harmless error analysis. But Weaver’s lawyer didn’t object, so this is an ineffective assistance claim, which of course requires him to show prejudice. But how do you show that you were prejudiced by a structural error–after all, the term refers to an error whose “effect … cannot be ascertained”? United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006).
Issues, arguments, and objecting to telephonic testimony
Marquette County v. T.F.W., 2017AP5, 6/8/17, District 4 (1-judge opinion, ineligible for publication); case activity
T.F.W. objected to the having his treating psychiatrist testify by telephone at his Chapter 51 extension hearing. He cited both §885.60 and “due process.” He did not specifically cite §807.13(2)(c), which outlines 8 factors a trial court should consider before allowing telephonic testimony. The court of appeals held that T.F.W. forfeited his §807.13(2)(c) argument perhaps without realizing (or perhaps not acknowledging) that the statute was enacted to protect due process rights.
Court of appeals rejects challenges to motorboat implied consent citation
State v. Donald G. Verkuylen, 2016AP2364, 5/18/2017, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Verkuylen pled to refusing a blood draw contrary to the motorboat implied consent law, Wis. Stat. § 30.684. He raises several arguments about the statutorily required warnings, but the court of appeals finds them all either meritless or forfeited.
Court of appeals rejects evidentiary challenges
State v. John A. Augoki, 2016AP231-CR, 4/25/17, District 1 (not recommended for publication); case activity (including briefs)
Augoki raises two claims on appeal of his jury-trial conviction of three sexual assaults: that the jury heard other-acts evidence it should hot have heard (raised here as plain error) and that the court unconstitutionally limited his cross-examination of a state expert. The court of appeals rejects both in a fact-intensive opinion.
No error where judge reached verdict in bench trial while jury out on remaining count
State v. Robert Mario Wheeler, 2016AP55-CR, 2/21/2017, District 1 (not recommended for publication); case activity (including briefs)
Robert Wheeler was tried for reckless injury and being a felon in possession of a gun arising out of a single shooting incident. To keep the jury from hearing about his status as a felon, the parties stipulated that he was and agreed that the gun possession charge would be decided by the court. Wheeler’s counsel specifically noted the possibility that the two counts could be decided differently, given the different factfinders. (¶5).
Suppression argument forfeited by plea to OWI 1st
City of Appleton v. Jacob Anthony Vandenberg, 2015AP2649, District 3, 11/8/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Because he entered a plea to OWI, first offense, Vandenberg forfeited his arguments that police lacked reasonable suspicion to stop him for operating while intoxicated or hit-and-run under § 346.69, and the court of appeals declines to disregard the guilty-plea-waiver rule.
Court of appeals finds sufficient evidence of intent to steal
City of Madison v. Jacob Ong, 2015AP1176, 10/20/16, District 4 (1-judge decision; ineligible for publication) case activity (including briefs)
The court rejects all challenges to this pro se appellant’s jury-trial conviction of an ordinance violation for stealing a letter from a mailbox.
State v. Heather L. Steinhardt, 2015AP993-CR, petition for review granted 10/11/2016
Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review
Issues (composed by On Point)
(1) Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?
(2) Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?
(3) Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?