On Point: K. Standards of Review

State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; affirmed, 2023 WI 68 case activity (including briefs, PFR, and response to PFR)

Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?

2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night in a high crime area, and when McBride made furtive movements in response to the officer’s spotlight?

State v. Rasheem D. Davis, 2023 WI App 25; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that the circuit court’s order dismissing charges against Davis that was rescinded minutes later didn’t deprive the court of subject matter jurisdiction.

State v. Craig R. Thatcher, 2020AP1734, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs).

A state trooper stopped Thatcher for a suspected OWI, the trooper read the Informing the Accused Form, and, according to Thatcher, provided additional, misleading information that influenced his decision to consent to a breath test in violation of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995). The court of appeals affirmed the circuit court’s decision to suppress the results of the breath test and also the results of the subsequent blood.

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity

Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.

State v. E.B., 2022AP1882, District 1, 01/18/2023 (one-judge decision, ineligible for publication), case activity

This case concerns only the disposition phase of E.B.’s TPR case. She argued that the circuit court erroneously exercised its discretion with regard to the best interest of the child factors set forth in Wis. Stat. § 48.426(3).  Specifically, E.B. argued that the circuit court did not give her own testimony enough weight and gave too much weight to the foster mother’s testimony. However, E.B. does not argue that the circuit court failed to consider any specific factor or made clearly erroneous findings based on the evidence presented at disposition. Because circuit courts retain discretion to regarding “the weight assigned to each factor and the credibility assigned to each witness’s testimony,” the court affirms the TPR order. (Opinion, ¶15).

State v. Jeffrey W. Butler, 2021AP2212-CR, 1/11/23, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

At Butler’s restitution hearing, the circuit court expressed frustration and disappointment that neither party presented any documentation regarding a disputed restitution claim. The court stated, “I have nothing other than testimony saying [the victim’s] done all this stuff and Googled it and she doesn’t bring in any receipts.” The court continued: “Nothing, I have nothing…[s]o the court is left with, based on testimony, what’s a reasonable amount of restitution…” The court then concluded, “I’ll put $500 toward clothing.” Butler appealed and the court of appeals affirms, holding that the victim’s testimony alone is sufficient to support the restitution award.

State v. Steven W. Bowers, 2023 WI App 4; case activity (including briefs)

In this important decision addressing a novel Fourth Amendment issue, the court of appeals holds that Bowers had a reasonable expectation of privacy in the contents of his Dropbox account, despite the fact he (1) used his work email address to create the account and  (2) uploaded case files and shared them without permission. (Opinion, ¶43). The court further holds that although investigators had probable cause to search the account for evidence of Bowers’ alleged crime, no exigent circumstances justified the warrantless search. (¶3).

State v. Eric J. Debrow, 2021AP1732, 7/21/22, District 4 (not recommended for publication); petition for review granted, 12/15/22, reversed, 2023 WI 54; case activity (including briefs)

The court of appeals holds Debrow is entitled to a new trial because of the unfair prejudice caused by one witness’s testimony that would have led the jury to conclude Debrow had a prior criminal conviction that led the witness to be “on alert” when Debrow went into the bedroom of two children.

State v. Kevin Lee Wilke, 2020AP1068-CR, District 3, 8/2/22 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Wilke’s arguments for a new trial and his challenge to the sufficiency of the evidence.

State v. X.S., 2022 WI 49, 6/29/22, modifying and affirming an unpublished court of appeals decision, 2021AP419, case activity (including, for some reason, one brief)

Our supreme court is fond of extolling its role as a “law-developing court.” You’ll search in vain for any law development in this case. Rather than developing the law, the high court exercises its discretion to waive a juvenile into the adult system.