On Point blog, page 13 of 25
Lower burden of proof at ch. 980 discharge trial doesn’t violate due process
State v. Thornon F. Talley, 2015 WI App 4; case activity
A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.
Voir dire questions by prosecutor that elicited promise to convict if elements were proven did not deny right to jury trial
State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity
The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.
Trial counsel’s failure to object to jury instruction deprives appellant of right to challenge sufficiency of evidence
State v. Addison F. Steiner, 2013AP2629-CR, district 4, 10/16/14 (not recommended for publication); case activity
This case raises an issue that even the court of appeals deemed to be of first impression. Does §948.20, which criminalizes abandonment of a child, require an intent to abandon a child permanently, or is leaving a child alone for 1 or 2 hours enough? If the latter, then how is “child abandonment” different from “child neglect” under §948.21? The court of appeals refused to address the issue for reasons that should trouble anyone challenging the sufficiency of the evidence to support a jury verdict.
Counsel wasn’t ineffective for following client’s decision to proceed to trial instead of seeking adjournment
State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity
James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.
Court of appeals holds evidence supports instructions and conviction on lesser-included offense of 1st-degree reckless homicide
State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity
The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide. In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.
SCOW: Violation of right to public trial is forfeited if defendant doesn’t object
State v. Nancy J. Pinno & State v. Travis J. Seaton, 2014 WI 74, 7/18/14, on certification from the court of appeals, and affirming the circuit court’s orders denying postconviction relief; majority opinion by Justice Prosser; case activity: Pinno; Seaton
Deciding an issue left open by State v. Ndina, 2009 WI 21, ¶¶34-38, 315 Wis. 2d 653, 761 N.W.2d 612, the supreme court rejects the argument that the right to a public trial must be affirmatively and knowingly waived by the defendant. Instead, the court holds, “[a] defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge excluded the public from the courtroom.” (¶7).
Judge’s factual findings weren’t clearly erroneous, despite officer’s equivocal testimony
City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity
The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.
Failure to object forfeits error in TPR case and prevents showing of harmful error
Barron County DH&HS v. Tara H., 2013AP2250, District 3, 12/27/13, unpublished; case activity
This is Tara H.’s 2nd trip to the court of appeals regarding this TPR. The first time she won a new dispositional hearing. At the start of that 2nd dispositional hearing, Tara’s counsel asked the trial court about the relevant time period for determining whether termination of her parental rights was in her son’s best interests.
SCOW: Six-person jury for involuntary mental commitment survives equal protection challenge
Milwaukee County v. Mary F.-R., 2012AP958, affirming an unpublished court of appeals opinion; case activity
Majority opinion by Justice Crooks; concurrence by Chief Justice Abrahamson; additional concurrence by Justice Ziegler (joined by Justices Roggensack and Gableman)
The issues in this case spring from State v. Post, 197 Wis. 2d 279, 318-319, 541 N.W.2d 115 (1995)(“persons committed under Chapters 51 and 980 are similarly situated for purposes of equal protection comparison) and State v.
Charge of driving without valid license instead of operating after revocation didn’t deprive circuit court of jurisdiction
State v. Cindy Lou Hilsgen, 2013AP659-CR & 2013AP660-CR, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
When Hilsgen moved here from Minnesota her driver’s license was revoked, and she never got a Wisconsin license. She was charged in two separate cases with operating without a valid license. Relying on § 343.05(6), she claimed in postconviction motions that she should have been charged instead with operating while revoked based on the status of her Minnesota license.