On Point blog, page 5 of 11
Defense win! COA affirms suppression due to State’s failure to refute the basis for the circuit court’s ruling
State v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)
The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.
Officer had probable cause for OWI arrest based on circumstantial evidence
State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)
Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.
SCOW to review admission of video statements by children and the forfeiture doctrine
State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity
Issues (from the State’s petition for review):
1. Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?
2. Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?
Challenges to termination of parental rights are forfeited or meritless
Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity
N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless.
Court of appeals finds factual basis for plea to contempt
State v. Kody K. Johnson, 2019AP1058-CR, District 4, 1/9/19, (1-judge opinion, ineligible for publication); case activity (including briefs)
Johnson accepted a negotiated disposition of 3 contempt charges stemming from his interference with child custody. He then moved to withdraw his plea arguing that the charges had no factual basis and were multiplicitous.
Defense win! COA says no community caretaker search where no good reason to think anybody was hurt
State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.
COA upholds admission of prior confrontations with police in disorderly conduct trial
State v. Eric L. Vanremortel, 2018AP417, 9/4/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Vanremortel was charged with disorderly conduct for an incident in which he followed the wife of a retired police officer in her car, then repeatedly got out of his own car and shouted at her. The state sought to admit evidence of three prior incidents involving Vanremortel following and/or shouting at police officers, including one that happened a few weeks before the charged conduct and involved the wife’s retired-officer husband. The circuit court admitted the evidence, finding it satisfied the test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and Vanremortel appeals.
COA finds reasonable suspicion for drug investigation, FSTs; probable cause for arrest
County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.
Ludicrous is not the same thing as absurd
State v. Medford B. Matthews, III, 2019 WI App 44; case activity (including briefs)
It’s a crime in Wisconsin to have sex with a person under 18. Specifically, it’s a misdemeanor, if that person is 16 or older—like the 17-and-a-half-year-old alleged victim here. But, it’s tough to have sex without (1) being in a private (or “secluded”) place and (2) exposing one’s genitals. And while the legislature has codified the obvious difference between having sex with,
Court of appeals declares pro se appeal frivolous and orders sanctions
Village of McFarland v. Dale R. Meyer, 2018AP2130, 5/23/19, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Harsh! That’s best description for this court of appeals decision sanctioning Meyer for his pro se appeal of his first OWI. The decision runs afoul of Amek Bin- Rilla v. Israel, 113 Wis. 2d 514, 335 N.W. 384 (1983) and Howell v. Denomie, 2005 WI 81, 282 Wis. 2d 130, 698 N.W.2d 62. Hopefully, a lawyer will take Meyer’s appeal, file a petition for review, and at least get the frivolous finding reversed.