On Point blog, page 1 of 3
Defense Win: COA holds that circuit court wrongly limited defendant’s testimony; holds error is not harmless
State v. Derek J. Jarvi 2023AP2136-CR, 6/12/25, District IV (not recommended for publication); case activity
Despite the State’s efforts to overturn Jarvi’s postconviction win of a new trial, the court of appeals rejects the State’s evidentiary arguments and holds that it failed to prove harmless error in this case.
Defense win: New OWI trial ordered because of erroneous admission of evidence of defendant’s prior hit-and-run conviction
State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)
Evidence of Madeiros’s prior hit-and-run conviction was admitted at his trial on OWI 5th, over his objection. This other-acts evidence was inadmissible because it wasn’t probative of any non-propensity purpose and the error in admitting the evidence wasn’t harmless, so Madeiros is entitled to a new trial.
How to beat the “harmless error” rap
For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal. They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless. This detailed, well-researched outline walks you through the history of the “harmless error” doctrine and offers ideas for how to beat it in various situations.
Failure to require jury to decide whether conduct qualified for sentence enhancer was error and prejudiced defendant
State v. Lonel L. Johnson, Jr., 2014AP2888-CR, District 3, 9/15/15 (not recommended for publication); case activity
High fives for the defense! The domestic abuse repeater enhancer applied to this defendant increased his maximum penalty for the charged offense. Thus, the court of appeals held (and the State conceded) that the jury had to find, beyond a reasonable doubt, that his underlying conduct qualified as an act of domestic abuse. That’s what Apprendi v. New Jersey, 530 U.S. 466 (2000) requires, but it didn’t happen here. The real win, however, is that for once the State did NOT prevail on its claim of harmless error!!
Seventh Circuit affirms grant of habeas relief, finds harmless error analysis done by Wisconsin Court of Appeals to be unreasonable
Mark D. Jensen v. Marc Clements, 7th Circuit Court of Appeals No. 14-1380, 9/8/15, affirming Jensen v. Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)
At Jensen’s trial for the murder of his wife Julie the State introduced Julie’s handwritten letter to the police, written two weeks before her death, in which she wrote she would never take her life and that her husband should be the suspect if anything should happen to her. The Wisconsin Court of Appeals assumed the admission of the letter violated Jensen’s right to confrontation but found the error harmless. The Seventh Circuit holds that the court of appeals’ decision was an unreasonable application of the Chapman v. California, 386 U.S. 18 (1967), harmless error standard, and that the erroneous admission of the hearsay evidence had a substantial and injurious influence or effect in determining the jury’s verdict, thus satisfying the actual prejudice standard under Brecht v. Abrahamson, 507 U.S. 619 (1993).
Trial court erred in relying on the abrogated “interlocking confession” doctrine to deny severance of co-defendants’ trials
State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity
State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity
The circuit court, relying on the district attorney’s assertion of the so-called “interlocking confessions” doctrine, denied Navigato’s and Bieker’s motions to sever their trials on homicide,
Wisconsin Supreme Court: Sentencing based on inaccurate information is not structural error, but mistake about mandatory minimum penalty in this case was not harmless
State v. Lamont L. Travis, 2013 WI 38, affirming published court of appeals decision, 2012 WI App 46, 340 Wis. 2d 639, 813 N.W.2d 702; case activity
¶9 The question of law presented to this court is whether a circuit court’s imposition of a sentence using inaccurate information that the defendant was subject to a mandatory minimum five-year period of confinement is structural error or subject to the application of harmless error analysis….
Miranda – “Custodial Interrogation”; Harmless Error
State v. Randy L. Martin, 2012 WI 96, reversing unpublished decision; case activity
Miranda – “Custodial Interrogation”
Martin was arrested for disorderly conduct and handcuffed at the scene of an otherwise unrelated incident (¶6, id. n. 6). Search of his car yielded a gun. When an officer asked him, Martin denied ownership. The officer then prepared to arrest Henry, Martin’s companion,
Evidence: Prior Inconsistent Statements- “State of Mind” Hearsay; Harmless Error / IAC-Prejudice
State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206
Evidence – Prior Inconsistent Statements
Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements,
Discovery Violation, § 971.23(1)(g) – Prejudice
State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11
court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity
The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”