On Point: 1. Appeals

Here’s an issue in search of a published decision.  In 2011, Wisconsin amended Wis. Stat § 907.02 to require circuit courts to apply the Daubert test for the admissibility of expert testimony. Thus far, no Wisconsin appellate court has interpreted and applied the new § 907.02, so we don’t know the standard for reviewing circuit court decisions pursuant to the statute.  The old test for the admission/exclusion of expert testimony wasn’t too complicated,

Polk County  Human Services Dep’t v. Boe H., 2013AP1719, District 3, 1/14/13 (not recommended for publication); case activity

This appeal turns on the court of appeals’ application of the law of the case doctrine,  so it’s necessary to recap some procedural history.

After a jury found Boe mentally ill, a proper subject for treatment, and dangerous under the “fifth standard”, Wis. Stat. § 51.20(1)(a)2.e, the circuit court committed him to the DHS for 6 months.  

State v. Jesse J. Delebreau, 2014 WI App 21, petition for review granted, 5/23/14, affirmed, 2015 WI 55; case activity

You remember State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741? That’s the one that considered whether Montejo v. Louisiana, 556 U.S. 778 (2009),

State v. Mark K. Schrick, 2013AP1166-CR, District 4, 12/27/13 (1-judge decision, ineligible for publication); case activity

Actually, this case concerns more than just dentures.  A jury convicted Schrick of operating a vehicle with a prohibited alcohol concentration in violation of §346.63(1)(b). On appeal, Schrick challenged (1) the trial court’s decision to deny his motion for a directed verdict, (2) the sufficiency of the evidence supporting his conviction, and (3)  a jury instruction saying that by statute the administered breath test was considered accurate. 

Barron County DH&HS v. Tara H., 2013AP2250, District 3, 12/27/13, unpublished; case activity

This is Tara H.’s 2nd trip to the court of appeals regarding this TPR.  The first time she won a new dispositional hearing.  At the start of that 2nd dispositional hearing, Tara’s counsel asked the trial court about the relevant time period for determining whether termination of her parental rights was in her son’s best interests. 

State v. David Lawrence Eastman, 2013AP1401-CR, District 3 (1-judge decision; ineligible for publication); case activity

A police officer may conduct a traffic stop when he has grounds to reasonably suspect that either a crime or a traffic violation has or will be committed.   See State v. Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569; State v.

State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity

In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI.

Mark D. Jensen v. James Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

Judge William Griesbach of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Mark Jensen, who was convicted of killing his wife Julie based in part on the use of oral and written statements she made before her death in which she told police she suspected her husband was trying to kill her.

Review of an unpublished court of appeals decision that is not available online; case activity

Issue:  Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?

SCOW is wading into a procedural thicket with this case. 

State v. George A. Trinka, 2013AP539, District 2, 12/18/13; (not recommended for publication); case activity

A jury found Trinka guilty of 1st-dgree reckless homicide and 1st-degree recklessly endangering safety, both with use of a weapon.  The issue on appeal was whether the trial court erred in allowing the State to introduce into evidence a family photograph of the victim, his wife, and their children.  Trinka argued that the photo was irrelevant and prejudicial in that it improperly invoked the jury’s sympathy.