On Point blog, page 33 of 117
Admission of other acts evidence and sufficiency of evidence for homicide conviction affirmed
State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).
The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense. So, as you might guess, the appellate challenge regarding the admission of this evidence failed.
SCOW to decide whether defendant who is denied all transcripts for appeal gets a new trial
State v. Robert James Pope, Jr., 2017AP1720-CR, petition for review granted 4/9/19; case activity (including briefs)
Issues:
Where no transcripts of a jury trial occurring over 20 years ago are available in a direct appeal and appellate counsel is new to the case, does application of State v. Perry’s requirement that appellant assert a “facially valid claim of error” that might be supported by a portion of a missing transcript deny the constitutional right to meaningful appellate review?
Whether a statement on transcript filed in an appeal binds an appellant in all future appeals in the same case?
Officer’s testimony about defendant’s evasive behavior during interview okay under Haseltine
State v. Edward L. Branson, 2018AP873-CR, 3/21/19, District 4 (not recommended for publication); case activity (including briefs)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.
Guilty plea waiver rule +failure to respond = no decision on the merits
State v. Daniel W. Morse, 2018AP1293-CR, District 1, 3/19/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Morse challenges his convictions for three counts of misdemeanor theft by embezzlement, but the court of appeals holds he’s waived his challenges by pleading guilty.
Failure to impeach, newly discovered evidence don’t merit new trial
State v. Rondale Darmon Tenner, 2018AP1115-CR, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)
Tenner complains his lawyer was ineffective for failing to impeach one of the state’s witnesses with her prior convictions. He also says he should get a new trial because he has an affidavit from a new witness who says another state’s witness actually committed the crime pinned on Tenner. The court of appeals disagrees.
Newly discovered evidence claim rejected
State v. Jerry Simone Wilson, 2018AP534, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)
Wilson’s bid for a new trial based on newly discovered evidence fails because he was negligent for not seeking the evidence at the time of his original trial.
SCOTUS: lawyer who ignores client’s request for appeal from guilty plea is ineffective
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.
Hearsay, its exceptions, and harmless error
State v. Christopher Deshawn McGinnis, 2017AP2224-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)
The court of appeals found certain hearsay statements admissible under the “statement against penal interest” and “prior inconsistent statement” exceptions to the hearsay rule. It also held that part of a detective’s testimony qualified as hearsay, but its admission was harmless error.
Defense win! Denying TPR defendant the right to present his case-in-chief is structural error
State v. C.L.K., 2019 WI 14, reversing an unpublished court of appeals opinion; 2/19/19; case activity (including briefs)
The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial. Opinion, ¶1.
No record, no record citations, no legal argument, no chance on appeal
State v. Tracy E. McCarthy, 2018AP484, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
McCarthy’s pro se appeal in his disorderly conduct case fails on multiple grounds. His brief doesn’t cite to the record and the record doesn’t include any transcripts. He doesn’t develop any legal arguments in support of his claims about the alleged errors at trial. Moreover, there wasn’t a trial: he entered a plea to an ordinance violation.