On Point: K. Standards of Review

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Did the evidence presented at Smith’s postconviction hearing establish reason to doubt that Smith was competent at the time of his trial and sentencing under the standard for retrospective determinations of competency established by State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986)?

State v. Andrew J. Joda, 2014AP1949 & 2014AP1950, District 2, 5/6/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Given the trial court’s conclusion that Deputy Becker’s testimony was more credible than Joda’s testimony, the court factual findings are not clearly erroneous just because there was a discrepancy between Becker’s testimony and his written report and Becker was unable to remember exactly where he was when he saw Joda make an illegal u-turn.

Village of DeForest v. Michael Brault, 2014AP2398, District 4, 4/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Brault’s challenge to the sufficiency of the evidence for his conviction for OWI 1st is frivolous, so sanctions under Rule 809.25(3) are appropriate.

State v. Nathan M. Caffero, 14AP1711-CR, District 3, 4/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Despite the trial testimony of Muxlow, Caffero’s girlfriend, that she was the person who caused the fire in their apartment by putting lit incense on top of a toilet paper roll, Caffero’s own admissions to the police gave the jury a basis to infer he subsequently handled the smoldering roll and that he did so negligently. Therefore, the evidence is sufficient to support his conviction for violating § 941.10.

State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

Disagreeing with the circuit court’s holding that Hurley was entitled to a new trial in the interest of justice, the supreme court holds that the prosecutor did not improperly refer in closing argument to Hurley’s testimony that he could not “recall” allegations regarding sexual assaults that were admitted as other-acts evidence.

Sheboygan County v. Terry L.M., 2014AP2010, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket

The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.

Lawrence Owens v. Stephen Duncan, 7th Circuit Court of Appeals Case No. 14-1419, 3/23/15, cert. petition granted, 10/1/15; petition dismissed as improvidently granted, 1/20/16

The Seventh Circuit grants habeas relief to Owens, who was convicted of murder after a bench trial, because the trial judge’s finding of guilt was based on evidence that did not exist and thus denied Owens’s right to due process of law in violation of the Fourteenth Amendment, Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (“one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial,” quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).

State v. Rory A. McKellips, 2015 WI App 31, petition for review granted 11/16/15, reversed, 2016 WI 51; case activity (including briefs)

McKellips is entitled to a new trial on charges he used a computer to facilitate a child sex crime because 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.”

State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)

A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.

State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket

Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.