On Point blog, page 3 of 17

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State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)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.

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COA rejects challenges to jury instructions: one good route to conviction is enough

State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)

A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.

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Circuit court’s failure to specify ch. 51 dangerousness standard was harmless error

Barron County v. K.L., 2021AP133, District 3, 8/9/22 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, held that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Deciding an issue addressed in the dissenting opinion in Sheboygan County v. M.W., 2022 WI 40, the court of appeals holds the failure to comply with D.J.W.‘s findings requirement can be a harmless error and was harmless in this case.

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SCOW reaffirms that rape shield law excludes evidence of lack of sexual conduct

State v. Ryan Hugh Mulhern, 2022 WI 42, 6/21/22, reversing a per curiam court of appeals decision, 2019AP1565, case activity (including briefs)

When we posted on SCOW’s grant of review of the non-citable court of appeals decision in this case, we imagined the court might accept the state’s invitation to change the scope of the rape shield law and hold the evidence at issue here–testimony proffered by the state that a complaining witness had not engaged in sexual intercourse–admissible. Instead, the court repeats what it has said in prior cases: that such evidence falls within the rape-shield prohibition. But it says the erroneous introduction of the evidence was harmless in this case, so it reverses the court of appeals’ grant of a new trial.

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Admission of photos provided to defense on day of trial was harmless

State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)

Lopez was convicted of battering his girlfriend, “Margaret,” with whom he had children. Before trial, the DA turned over photos depicting the bruising on Margaret’s face.  But at trial, it surprised Lopez with a second set of photos showing the progression of her bruising. The defense objected. The circuit court refused to exclude the second set based on harmless error. The photos only depicted what Margaret and police described in their testimony.  The court of appeals affirmed.

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CoA rejects claims of Brady violation, IAC, and erroneous admission of unauthenticated letters

State v. Ronald Henry Griffin, 2020AP1750-CR, 2/22/22, District 1; case activity (including briefs)

Griffin and his friend, Taylor, were charged with sexually assaulting T.H. Taylor pled and agreed to testify against Griffin, who went to trial and was found guilty. He filed a pro se appeal arguing that (1) the State failed to turn over Brady evidence (2) he received ineffective assistance of counsel, and (3) the circuit court erroneously admitted two letters, which were not authenticated. The court of appeals affirmed the conviction but Judge Dugan filed a concurrence on the third issue.

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No error in admitting foster parent’s testimony at TPR grounds trial

Dunn County Human Services v. N.R., 2021AP129 & 2021AP1830, District 3, 1/28/22 (one-judge decision; in eligible for publication); case activity

The circuit court properly exercised its discretion in allowing the foster parent of N.R.’s children to testify at the grounds trial in N.R.’s TPR proceeding.

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SCOW will address confrontation, harmlessness, and corroboration rule

State v. Oscar C. Thomas, 2020AP32, petition for review of a published decision granted 1/11/2022; affirmed 2/21/23; case activity (including briefs)

Issues presented (from the petition):

Whether the Court of Appeals applied the wrong standard in determining that admission of DNA evidence in violation of [Thomas’s] right of Confrontation was harmless?

Whether the Court of Appeals erred in determining that [Thomas’s] confession to a sexual assault was corroborated by a significant fact?

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SCOW will review trial judge’s ex parte removal of juror during trial

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

  1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
  2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
  3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?
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COA holds discovery violation harmless, rejects spoliation claim

State v. Jacky Lee, 2020AP1633, 7/27/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The state arrested Lee for second-offense OWI and PAC violations. The intoximeter breath test he took at the police department was video-recorded. However, due to the state’s delay in charging Lee, he did not request the video until it had already been recorded over, consistent with the department’s practice of keeping such videos for 3-6 months unless there’s been a request to preserve them.

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