On Point blog, page 19 of 49
If you are challenging the constitutionality of a statute, read this decision
SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78. If you are challenging the constitutionality of a Wisconsin statute, you may want to take a careful look at this decision. The justices appear to have split over the proper standard for judging the constitutionality of a statute.
COA finds sufficient evidence for all elements of resisting an officer
State v. Scott H. Wenger, 2017AP2305, 6/14/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Wenger got arrested for disorderly conduct and resisting at Art in the Park in Stevens point. The circuit court dismissed the DC but found him guilty, after a bench trial, of resisting. He claims insufficient evidence as to all three elements of resisting an officer:
Court of appeals rejects challenges to admission and sufficiency of evidence
State v. James E. Gray, 2017AP452-CR, 6/6/18, District 2, (not recommended for publication); case activity (including briefs)
The court of appeals here affirms several trial court evidentiary decisions and holds that the State presented sufficient evidence to support convictions for 5 counts of identity theft. As you might guess, the decision hinges on the harmless error doctrine and facts specific to this case.
For IAC claims in multi-count cases, SCOW says courts may determine prejudice on a count-by-count basis
State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity
Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.
Defense win! Circuit court must explain rationale for granting a protective order without an evidentiary hearing
State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)
Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.
SCOW: Affidavits that co-conspirators framed defendant don’t support new trial
State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity
A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.
Defense win! Circuit court didn’t err in declining to terminate parental rights
Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).
SCOTUS discusses standard of review for mixed questions of law and fact
On March 5, 2018, the Supreme Court decided U.S. Bank N.A. v. Village at Lakeridge, USSC No. 15-1509, 2018 WL 1143822, a bankruptcy case that we note here solely because it addresses a narrow issue that can matter to appellate litigators, civil and criminal: What is the standard of appellate review of mixed questions of law and fact? The answer: Well, it “depends,” though less so in the kind of constitutional questions criminal litigators often face.
Video of battery by juvenile supports trial court’s rejection of self-defense claim
State v. J.D.V., 2017AP1057, District 3, 2/13/18 (one-judge decision; ineligible for publication); case activity
J.D.V. (given the pseudonym “Joseph” by the court) was adjudged delinquent for punching Thomas, another juvenile, in the head outside of school. The incident was recorded by Charles, another student, using his electronic device. Based primarily on that recording the trial court rejected Joseph’s self-defense claim—rightly so, says the court of appeals.
Defense win on sufficiency of evidence for conspiracy to deliver THC and on mootness!
State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)
A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC. Conviction reversed!