On Point blog, page 24 of 49
Circuit court erred in excluding field sobriety test evidence
State v. Robert A. Schoengarth, 2015AP1834-CR, 2/11/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erroneously exercised its discretion when it ordered that police could not testify about Schoengarth’s performance on field sobriety tests.
SCOTUS: Sufficiency of evidence measured against statutory elements, not erroneous jury instruction
Musacchio v. United States, USSC No. 14-1095, 2016 WL 280757 (January 25, 2016), affirming United States v. Musacchio, 590 Fed. Appx. 359 (5th Cir. 2014); Scotusblog page (including links to briefs and commentary)
Resolving a split among the federal circuits, a unanimous Supreme Court holds that when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency of evidence challenge is assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.
Welch v. United States, USSC No. 15-6418, cert. granted 1/8/16
I. Whether the District Court was in error when it denied relief on Petitioner’s §2255 motion to vacate, which alleged that a prior Florida conviction for “sudden snatching,” did not qualify for ACCA enhancement pursuant to 18 U.S.C. §924(e).
II. Whether Johnson v. United States, 135 S. Ct. 2551 (2015), announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Furthermore, Petitioner asks this Court to resolve the Circuit split which has developed on the question of Johnson retroactivity in the Seventh and the Eleventh Circuit Courts of Appeals.
Evidence sufficient to prove robbed bank was “chartered”
State v. James Lee Eady, Jr., 2016 WI App 12; case activity (including briefs)
Under the forgiving standard for assessing the sufficiency of evidence, the state managed to introduce enough circumstantial evidence to prove that the bank Eady robbed was “chartered” by a state of the federal government, and therefore was a “financial institution” for purposes of § 943.87.
Evidence sufficient, evidentiary calls upheld
State v. Davis Kevin Lewis, 2014AP2773-CR, District 1, 12/01/2015 (not recommended for publication); case activity (including briefs)
Lewis (whose first name is itself a matter of dispute, (¶1 n.2)) brings three challenges to his conviction after trial; all are rejected.
Statute prohibiting switchblades doesn’t apply to possession by a person at home
State v. Cory S. Herrmann, 2015 WI App 97; case activity (including briefs)
In light of the Second Amendment decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), Wisconsin’s prohibition on the possession of a switchblade knife, § 941.24(1), is unconstitutional as applied to a person who possesses a switchblade in his or her own home.
State v. Rory A. McKellips, 2014AP827-CR, petition for review granted 11/16/15
Review of a published court of appeals decision; case activity (including briefs)
In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Circuit court’s findings that driver made unexplained swerve into wrong lane were not clearly erroneous
State v. Mark Alan Tralmer, 2015AP715-CR, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court’s implicit rejection of Tralmer’s suppression hearing testimony and acceptance of the police officer’s contrary testimony were not clearly erroneous and therefore must be upheld on appeal, State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. Accordingly, the circuit court properly concluded that the officer had reasonable suspicion to stop Tralmer for violating § 346.05(1) by swerving into the wrong lane of traffic when there is no obstruction requiring the driver to do so, as allowed under § 346.05(1)(d).
Sec. 48.415(2)3 applies to CHIPS orders before parent has exhausted appellate rights
State v. E.P., 2015AP1298-1300, 10/1/15, District 1 (1-judge opinion, ineligible for publication); case activity
A jury found grounds to terminate E.P.’s parental rights because his kids were in continuing need of protective services. The court of appeals rejected E.P.’s arguments that § 48.415(2)’s “6 months or longer” period (i.e. the time a child has been placed outside the home per a CHIPS order) begins to run only after he exhausted his appellate rights. The court also declined to order a new trial in the interests of justice.