On Point blog, page 1 of 2
COA rejects attempt to use plain error doctrine to challenge hearsay evidence in 51 appeal
Portage County v. D.P.W.O., 2023AP1975, 3/7/24, District IV (one-judge decision; ineligible for publication); case activity
In yet another appeal challenging the use of hearsay statements contained within an examiner’s report, COA rejects D.P.W.O.’s attempt to use the plain error doctrine to prove that this unpreserved error merits reversal of the extension order.
Misstatement of law by prosecutor in closing argument does not entitle defendant to relief
State v. Troy Allen Shaw, 2023AP697, 1/24/24, District II (1-judge decision; ineligible for publication); case activity (including briefs)
Shaw’s challenge to improper closing argument persuades COA that the prosecutor erred, but fails to overcome the imposing tests for plain and harmless error.
COA holds challenge to late ch. 51 extension hearing judicially estopped; says hearsay statements not plain error
Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity
“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.
SCOTUS addresses plain error challenges to federal felon-in-possession cases after Rehaif
Greer v. United States, USSC No. 19-8709, together with United States v. Gary, USSC No. 20-444, June 14. 2021; Scotusblog pages for Greer and Gary (including links to briefs and commentary)
These two federal felon-in-possession defendants were convicted before Rehaif v. United States, 588 U.S. ___ (2019), which held that, under 18 U.S.C. § 922(g), the government must prove that the defendant knew he was a felon at the time he possessed a firearm. Thus, they seek relief from their convictions under the onerous plain-error standard. The Court holds they have met their burden.
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.
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.
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.
SCOTUS to clarify plain error review standard
Rosales-Mireles v. United States, USSC No. 16-9493, cert granted 9/28/17
In United States v. Olano, this Court held that, under the fourth prong of plain error review, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. 725, 736 (1993). To meet that standard, is it necessary, as the Fifth Circuit Court of Appeals required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge?”
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.