On Point: K. Standards of Review

State v. Michael C. Hess, 2014AP268-CR, District 3, 11/11/14 (not recommended for publication); case activity

While the trial evidence was sufficient to support the jury’s verdict that Hess possessed methamphetamine, Hess is entitled to a new trial in the interest of justice because the verdict may have been influenced by evidence offered to proved drugged-driving charges that were dismissed during trial.

Court of appeals certification request, certification granted 12/18/14, affirmed, 2015 WI 75; case activity

Issue Presented (from Certification)

We certify this case to the supreme court because we are uncertain which of two decisions is controlling: State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), or State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681. The issue is whether, under the circumstances here, a sufficiency of the evidence challenge requires us to measure the evidence against the instructions the jury received, as the court did in Wulff, or instead against statutory requirements, as the court did in Beamon.

State v. Adam J. Gajeski, 2014AP612-CR, District 3, 10/7/14 (1-judge; ineligible for publication); case activity

The evidence was sufficient to support the guilty verdict on a theft charge because the jury could have reasonably inferred Gajeski intended to permanently deprive the owner of the property at the time he took the property.

State v. Landris T. Jines, 2014AP132, District 1, 9/30/14 (not recommended for publication); case activity

The recantations of Bartee, the victim, and Griffin, another state’s witness, don’t satisfy the newly-discovered evidence test because they are not sufficiently corroborated. Nor is there a reasonable probability a different result would be reached in a new trial with the recantation evidence.

On review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

In granting Kucharski a new trial on the issue of mental responsiblity under the miscarriage of justice prong of § 752.35, did the court of appeals substitute its judgment for that of the trial court on issues that are within the sole province of the finder of fact, so that the appellate court’s decision conflicts with this court’s decision in State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979)?

Should a defendant be entitled to a new trial on the affirmative defense of mental disease or defect under the miscarriage of justice prong of § 752.35 where the court of appeals does not find any error or unfairness in the defendant’s trial, but determines there is a substantial probability of a different result on retrial only by substitution its judgment for that of the fact-finder on issues that are the province of the fact-finder alone?

State v. Adrian A. Starks, 2013AP93, District 4, 9/25/14 (not recommended for publication); case activity

New information that one of the officers who testified at Starks’s trial violated department policy on dozens of occasions (three of which occurred in Starks’s case) and ultimately resigned after an internal investigation didn’t entitle Starks to a new trial because there isn’t a reasonable probability that a jury considering the new evidence together with the old evidence would reach a different verdict.

State v. Samantha J., 2014AP988, 2014AP989, 2014AP1017, District 1, 9/17/14 (1-judge opinion, ineligible for publication); case activity

This case is noteworthy in 2 respects.  First, the court of appeals upheld a default judgment as to grounds for terminating a mother’s parental rights–always a significant step, given the stakes.  And, second, the court of appeals complimented a brief–specifically, the brief filed by the GAL, Linnea Matthiesen.

State v. Jimmie Lee Smith, 2014 WI App 98, petition for review granted 6/12/15; case activity

If you’re working on a competency issue, read this decision.  Neither the trial court nor defense counsel raised the subject of Smith’s competency at the time of trial.  And Smith had not received a pre-trial competency exam. That’s why the postconviction court rejected Smith’s claim that he was incompetent at the time of trial. There was no contemporaneous evidence to support it. The court of appeals reversed, vacated the conviction, and remanded the case for a new trial.

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. 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.