On Point blog, page 6 of 25
SCOW holds video of child admissible; talks about forfeiture but makes no law
State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)
Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.
COA holds other acts issue forfeited
State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)
Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station.
SCOTUS will clarify plain error doctrine’s prejudice requirement
Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
SCOTUS to address how plain error doctrine applies to defective plea colloquy
United States v. Gary, No. 20-444, cert granted 1/8/21; SCOTUSblog page
Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.
Judicial bias claim forfeited due to lack of postdisposition motion
State v. Benjamin J. Klapps, 2021 WI App 5; case activity (including briefs)
The circuit court granted the state’s petition to revoke Klapps’s conditional release under § 971.17(3)(e), citing in particular the report of a prior examiner who didn’t testify at the revocation hearing and whose report wasn’t entered into evidence. (¶¶2-13). Klapps argued the trial judge had prejudged his case based on the previously filed report,
COA creates Confrontation Clause exception for nurse’s “Sexual Abuse Evaluation”
State v. Thomas A. Nelson, 2021 WI App 2; 12/9/20, District 2; case activity (including briefs).
This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it. Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it receives into evidence out-of-court statements by someone who does not testify at trial, if the statements are “testimonial” and if the defendant has not had an opportunity to cross-examine the declarant of the statement. Yet in this case, the court of appeals holds that Nelson’s confrontation rights were not violated when the circuit court admitted a “Sexual Abuse Evaluation” requested by the police for the purpose of collecting evidence even though the author of the evaluation did not testify at trial.
SCOW will address “stipulated trials” to preserve issues for appeal
State v. Jacob Richard Beyer, court of appeals certification granted 11-18-20, 2019AP1983; case activity (including briefs)
Issue presented (from the certification):
[W]hether the guilty-plea waiver rule applies when a defendant pleads not guilty to an offense, but stipulates to the inculpatory facts supporting each element of the offense, and explicitly agrees to a finding of guilt at a hearing before the circuit court at which no witness testifies.
COA asks SCOW whether parties can hold stipulated trial to preserve issues for appeal
State v. Jacob Richard Beyer, 2019AP1983, 9/24/20, District 4; case activity (including briefs); certification granted 11/18/20, reversed, 2021 WI 59
Wisconsin courts apply a robust guilty-plea waiver rule: in general, a plea will block a defendant from appealing any issue litigated before the plea. There is one important statutory exception: Wis. Stat. § 971.31(10) entitles a defendant to appeal the denial of a motion to suppress evidence or a motion to exclude his or her own statements, guilty plea or no. But other matters that may have arisen–pre-trial evidentiary decisions, fights over discovery, etc.–are typically not reviewable unless the defendant insists on a trial.
True threat instruction wasn’t needed at this disorderly conduct jury trial
State v. Joseph K. Edwards, 2019AP2138-CR, District 1, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Edwards was charged with disorderly conduct with use of a dangerous weapon for “creepy, stalker-like behavior.” (¶6). The court of appeals rejects his complaint that the jury wasn’t instructed on the definition of “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.
COA holds exigency justified warrantless blood draw
State v. Yancy Kevin Dieter, 2020 WI App 49; case activity (including briefs)
Dieter called 911 at about 6 in the morning and reported that he’d crashed his car after drinking at a bar. The crash happened about four hours before Dieter made the call; he was badly injured and the car’s other occupant was killed.