On Point blog, page 32 of 51
Court of appeals reverses conviction for hit and run involving death due to trial counsel’s ineffective assistance
State v. Marker Alan Sperber, 2013AP358-CR, District 3, 10/15/13 (not recommended for publication); case activity
This appeal turns on Wis JI-Criminal 2670, which explains the 5 elements of the crime the Sperber was charged with–a hit and run causing death to the victim. The 2nd element requires that the defendant know that his vehicle was involved in an accident involving a person. The problem here was that Sperber was driving in the dark on wet roads flanked by blackened snowbanks.
For intent to defraud case, no need to instruct jury on terms of contract authorizing defendant’s conduct
State v. Greg LaPean, 2012AP2309-CR, District 3, 9/26/13 (not recommended for publication); case activity
This case boils down to whether LaPean transferred encumbered farm equipment with intent to defraud his lender, Security State Bank, in violation of § 943.84(2)(a); Wis JI-Criminal 1470. LaPean asserted the real controversy was not tried due to an incomplete instruction on intent, there was insufficient evidence to support the jury’s finding of intent,
Law of the case doctrine — procedure on remand
State v. Gary Wieczorek, 2012AP2217-CR, District 3, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court had previously held that Wieczorek was unlawfully seized by the police on his front porch, but the court of appeals reversed that holding and remanded the case for further proceedings. (¶¶2-4). On remand, Wieczorek again alleged the seizure was unlawful because there were no exigent circumstances.
“Bullshit” newly-discovered evidence and self-representation on 974.06 motions
State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).
What a challenging case. A jury convicted Jordan of first-degree reckless homicide and other crimes. He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel,
Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.
State v. Keith M. Bohannon, 2013 WI App 87; case activity
Substitution of judge; “new” judge under § 971.20(5)
When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,
Disorderly conduct — sufficiency of the evidence
State v. Christina V., 2013AP405-FT, District 3, 6/11/13; court of appeals decision (1-judge; ineligible for publication); case activity
The evidence was sufficient to support the trial court’s order adjudicating Christina delinquent of disorderly conduct despite the judge’s comments that what happened in the case was “somewhat of a guess” and that his conclusions were “[m]y best guess” and based on what “I suspect” happened. (¶¶12-13).
Though the trial court found none of the witnesses “all that reliable”
Court of appeals tosses jury verdict in CHIPS case
Polk County v. Norman S., 2012AP2801, District 3, 5/29/13; court of appeals decision (1-judge, ineligible for publication); case activity.
Given the court of appeals’s highly deferential standard of review for jury verdicts, it doesn’t throw them out very often. In this case, it did. A jury found by clear and convincing evidence that Norman S. was unable to provide necessary care so as to seriously endanger the physical health of his son,
Sufficiency of the evidence. Plain error — leading questions, closing arguments, jury instructions.
State v. Brian L. Jackson, 2012AP1008-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity
Sufficiency of the evidence
In a necessarily fact-specific discussion (¶¶4-5, 10-12), the court of appeals holds there was sufficient evidence to support Jackson’s conviction for being a felon in possession of a firearm despite the existence of evidence to the contrary, which included the lack of Jackson’s DNA on the gun (and other objects) he supposedly discarded during a foot pursuit and the fact the officers lost sight of the men they were pursuing at various times during the chase:
¶13 The …
Discretion of trial court — evidentiary decisions; mistrial motions
State v. Desmond Dejuan Laster, 2012AP1739-CR, District 1, 4/2/13; court of appeals decision (not recommended for publication); case activity
The trial court did not erroneously exercise its discretion in making two evidentiary rulings or in denying Laster’s motion for a mistrial.
On the first evidentiary ruling, the court of appeals holds the trial court properly exercised its discretion in allowing the prosecutor to ask Hunt, a defense witness,
Evidence sufficent to show parent/child go-kart ride amounts to physical abuse of child; ditto as to parent’s decision to treat injuries at home rather than seek medical attention
State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.
While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you.
Here’s what happened. Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof.