On Point: L. Harmless Error

State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)

Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.

State v. Decarlos K. Chambers, 2019AP411-CR, petition for review of per curiam opinion granted 9/16/20; case activity (including briefs)

Issue presented (derived from Cambers’ petition for review):

The State charged Chambers with 1st degree reckless homicide. He maintained that he had not committed the crimes and that was absolutely innocent. He refused all plea offers. Nevertheless, during closing arguments his lawyer told the jury they should consider convicting him of 2nd degree recklessly homicide, and they did.  The issues is whether trial counsel violated Chambers’ 6th Amendment right to determine his own defense under  McCoy v. Louisiana, 138 S Ct. 1500 (2018).

Waukesha County v. C.A.E., 2020AP834-FT, District 2, 9/16/20 (1-judge opinion, ineligible for publication); case activity

“Carly” argued that the circuit court committed plain error when it admitted and relied on hearsay evidence of dangerousness introduced through the County’s testifying doctor at her recommitment hearing. She also challenged the court’s involuntary med order because the last time the testifying doctor had discussed the “advantages and disadvantages of medication” with her, as required by §51.61(1)(g)4, was 5 years prior to the hearing. Both arguments failed on appeal.

State v. Morgan E. Geyser, 2020 WI App 58; case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

State v. Keith M. Abbott, 2020 WI App 25; case activity (including briefs)

After losing a suppression motion, Abbott pled “no contest” to 2nd degree intentional homicide. The court of appeals affirmed the denial of suppression for some evidence and reversed it as to other evidence. It held that Abbott’s mental breakdown during questioning did not relieve him of his duty make an unequivocal invocation of the right to counsel. And while it rejected the State’s request that it adopt a new harmless error test for cases where the defendant appeals the denial of suppression after pleading guilty, it nevertheless affirmed under the existing harmless error rule.

State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)

At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.

State v. Tyler J. Yost, 2018AP2251-CR, 9/18/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Loose lips sink ships. They can also land you in jail for another year. That’s what happened to Yost when he and other inmates started bad mouthing their probation agent while chilling in the common area of the Waukesha County Jail. Yost allegedly called his agent a “bitch” and said that when he got out he was going to “crimp her brake lines,” and he didn’t care if her kids or family were in the car. 

State v. Edward L. Branson, 2018AP873-CR, 3/21/19, District 4 (not recommended for publication); case activity (including briefs)

Branson was convicted of possession with intent to deliver methamphetamine. He argued that his lawyer was ineffective for failing to object to an officer’s testimony comparing his behavior to that of the passenger in his car where a bag of meth was found. The officer described the passenger as calm, helpful and willing to look him in the eye. In contrast, he described Branson as nervous and failing to make eye contact.

Garza v. Idaho, USSC No. 17-1026, reversing Garza v. State, 405 P.3d 576 (Idaho 2017);  Scotusblog page (includes links to briefs and commentary)

This case involved two plea agreements that included clauses stating that Garza waived his right to appeal. After sentencing, Garza told his lawyer that he wanted to appeal, but his lawyer refused due to the plea agreement. Garza filed claim for ineffective assistance of counsel. Siding with Garza, SCOTUS held that counsel performed deficiently and that “prejudiced is presumed” because the failure to file a notice of appeal deprived Garza of an appeal altogether. Opinion at 1.