On Point: 1. Appeals

State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity

James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.

State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity

The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide.  In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.

State v. Nancy J. Pinno & State v. Travis J. Seaton, 2014 WI 74, 7/18/14, on certification from the court of appeals, and affirming the circuit court’s orders denying postconviction relief; majority opinion by Justice Prosser; case activity: Pinno; Seaton

Deciding an issue left open by State v. Ndina, 2009 WI 21, ¶¶34-38, 315 Wis. 2d 653, 761 N.W.2d 612, the supreme court rejects the argument that the right to a public trial must be affirmatively and knowingly waived by the defendant. Instead, the court holds, “[a] defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge excluded the public from the courtroom.” (¶7).

State v. Daniel D. Bolstad, 2013AP2139, District 4, 7/17/14 (not recommended for publication); case activity

The court of appeals orders a new trial in the interest of justice because the prosecutor’s unwitting use of false testimony as critical evidence to establish that Bolstad was lying so clouded the crucial issue of credibility that it prevented the real controversy from being fully tried.

State v. Angelica Nelson, 2014 WI 70, 7/16/14, affirming an unpublished per curiam court of appeals decision; majority decision by Justice Roggensack; case activity

Nelson wanted to testify at her trial on child sexual assault charges, but after a colloquy with her about waiving her right to remain silent the trial judge wouldn’t let her because he concluded she was testifying against counsel’s advice and her testimony was “completely irrelevant” to the elements the State had to prove. (¶¶14-16). The supreme court assumes without deciding that the trial judge erred, but it follows the majority of jurisdictions in holding that erroneous denial of a defendant’s right to testify is subject to harmless error analysis because its effect on the outcome of the trial is capable of assessment.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

State v. Jimothy A. Jenkins, 2014 WI 59, 7/11/14, review of an per curiam court of appeals decision; majority opinion by C.J. Abrahamson; case activity

This is a very nice victory for the defense.  It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel.  And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial.  After all, witness credibility is for the jury to decide.

City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity

The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.

State v. David Phillip Foley, 2013AP1722-CR/2013AP1723-CR; district 1, 6/17/14 (unpublished); case activity

Under § 943.20(1)(d), theft by fraud requires, among other things, that the defendant made a false representation to the owner of the property that the defendant stole.  This does not require direct communication between the defendant and the victim.  It is sufficient that the defendant made a statement to a third party with the intent or reasonable expectation that it would be communicated to the victim.

State v. Jesse J. Franklin, Jr., 2013AP1447, District 1, 6/17/14 (unpublished); case activity

Milwaukee Police Officers Paul Lough and James Campbell testified against Franklin at his trial for possession of marijuana and cocaine with intent to deliver and possession of a firearm by a felon.  Franklin was convicted and lost his appeal.  A few years later he filed a § 974.06 motion arguing that he should be granted a new trial based on newly-discovered evidence–namely evidence that Officers Campbell and Lough had beaten, planted evidence on, and falsely arrested 6 individuals during the same period in which they arrested Franklin.  Franklin argued that this evidence supported his defense that someone else had placed in his van the drugs and guns that the police found there.