On Point blog, page 22 of 117
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State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)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.
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.
SCOW further explains the test for granting a stay pending appeal
The main issue in Waity v. Lemahieu, 2022 WI 6 (January 27, 2022), involves the legislature’s power to hire lawyers to deal with redistricting issues, but along the way a majority of the court addresses a matter of interest to all appellate and postconviction lawyers: the proper application of the standard for a circuit court to apply in deciding whether to issue a stay pending appeal. While seeking a stay in a criminal case is often a futile endeavor for the defense, what the court says here might be useful next time you consider doing so.
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.
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?
Challenge to medication order mooted by subsequently issued medication order
Rock County v. P.P., 2021AP678, District 4, 12/16/21 (one-judge decision; ineligible for publication); case activity
P.P. challenges the sufficiency of the evidence elicited in support of the involuntary medication order issued in April 2020, along with the original commitment order. Both orders were set to expire in October 2020, so in September 2020 the County petitioned to extend them for 12 months. P.P. stipulated to the extension. (¶¶2-4). Because of the September 2020 extension of the medication order, P.P.’s appeal of the original order is moot.
CoA rejects proposed guardianship and NTIJ challenge to TPR order
State v. A.P., 2021AP1146-47, 12/7/21, District 1 (1-judge opinion, ineligible for publication); case activity
A.P. appealed orders terminating his parental rights to his two children. The court of appeals rejected his claim that the circuit court erroneously exercised its discretion when it refused to make his mother the guardian of the children and his new trial in the interests of justice claim.
COA asks SCOW to decide whether things that happen simultaneously happen on two “separate occasions”
State v. Corey Rector, 2020AP1213, certification filed 11/24/21; granted 2/16/22; affirmed 5/23/23; District 2; case activity (including briefs)
Issue (from the certification):
Whether the plain meaning of “separate occasions” in the sex-offender-registration statute means that the two convictions must have occurred at different times in two separate proceedings so that the qualifying convictions occurred sometime before a defendant is convicted in the current case. Stated otherwise, can the qualifying convictions occur simultaneously, as they did in this case, and as Wittrock and Hopkins held?
Court of appeals excuses state’s failure to file any brief; upholds denial of expunction
State v. Sean B. Day, 2021AP1018, 11/24/21, District 4 (one-judge decision; ineligible for publication); case activity (including brief)
Day was initially charged with repeated sexual assault of a child for sexual contact with a 14-year-old when he was 17. He ended up pleading to a single count of fourth-degree sexual assault and was put on probation. The circuit court failed to mention expunction at the sentencing hearing, but later–both in writing and at the postconviction motion hearing–it gave the reasons it did not find expunction appropriate.
COA holds emergency aid exception justified entry into garage where corpse was found
State v. Laverne Ware, Jr., 2021 WI App 83; case activity (including briefs)
When the parties filed their initial briefs in this appeal, it was a community-caretaker case. But during briefing, the Supreme Court decided Caniglia v. Strom, which made clear that this doctrine doesn’t permit searches in the home (in the process invalidating some Wisconsin cases). So now–as the Caniglia concurrences foretold–it’s instead a case about the “emergency aid exception.”