Search

On Point

COA affirms OWI conviction at trial, finding that nontestifying witness’s statements to 911 operator were not testimonial and defendant not subjected to custodial interrogation.

State v. Nelson Holmes, 2024AP1121, District I, 6/17/25 (one-judge decision; ineligible for publication); case activity

The COA affirmed Nelson Holmes’ conviction at trial of operating a vehicle under the influence and with a prohibited alcohol concentration, finding that a witness’s statements to a 911 operator were not testimonial and were admissible as present sense  impressions, and that Holmes was not subjected to custodial interrogation when he made incriminating statements to police.

COA: Sufficient evidence to request blood draw independent from defendant’s compelled statements; defendant’s IAC claims were conclusory and undeveloped.

State v. Nicholas J. Nero, 2023AP543, District III, 6/10/25 (one-judge decision; ineligible for publication); case activity

The COA found that law enforcement had probable cause that Nicholas Nero was driving under the influence, independent from his compelled statement to his probation officer and un-Mirandized statement to a deputy sheriff, and therefore affirmed the circuit court’s order denying his motion to suppress the results of his blood draw.  The COA also found that Nero’s claims for ineffective assistance of counsel at trial were conclusory and undeveloped.

COA finds officer did not intentionally or recklessly include false information in affidavit in support of search warrant; circuit court’s order suppressing evidence reversed.

State v. Mark T. Solheim, 2024AP239, District II, 9/18/24 (one-judge decision; ineligible for publication); case activity

In its decision reversing the circuit court’s order suppressing evidence obtained pursuant to a warrant for a blood draw, the Court of Appeals reminds that Franks and its Wisconsin counterpart Anderson require defendants challenging the veracity of an affidavit in support of a search warrant to do more than show the affidavit contained false information, but also that the officer knew the information was false at the time it was asserted and included it intentionally or with a reckless disregard for the truth.

COA finds portions of juvenile suspect’s statements during marathon interrogation involuntary due to coercive interrogation techniques, but juvenile was not in custody for Miranda purposes; circuit court’s order suppressing all statements affirmed in part and reversed in part.

State v. Kruckenberg Anderson, 2023AP396-CR, 7/25/24, District IV (recommended for publication); case activity

The tragic death of a newborn baby in the bucolic countryside of southwest Wisconsin prompted aggressive interrogation techniques by law enforcement that the Court of Appeals considered coercive in light of the suspect’s age of 16.  But the court found that a reasonable 16-year old would have felt free to leave when the police told him repeatedly he was not under arrest and did not have to answer questions; law enforcement therefore did not have to advise the suspect of his Miranda rights.  The COA affirmed in part and reversed in part the circuit court’s order suppressing the defendant’s statements.

Seventh Circuit denies habeas relief; holds that WI COA reasonably applied case law regarding invocation of right to remain silent

Johnnie Mertice Wesley v. Randall Hepp, No. 22-2968, 1/5/24

Wesley’s challenges to law enforcement conduct which resulted in him giving inculpatory statements fail, as the Seventh Circuit concludes that the Wisconsin Court of Appeals reasonably applied SCOTUS precedent.

Pregnancy doesn’t make suspect “particularly vulnerable” to police questioning tactics

State v. Jeanette M. Janusiak, 2015AP160-CR, 1/28/16, District 4 (not recommended for publication); case activity (including briefs)

Pregnancy does not by itself make a suspect particularly vulnerable to police pressure and tactics during custodial interrogation, the court of appeals holds, so the fact that Janusiak was in an advanced state of pregnancy didn’t render her statement to police involuntary. The court also rejects Janusiak’s claims that her statement was coerced because she was threatened with the loss of her children and was promised she could go home if she made a statement.

SCOW clarifies waiver of 6th Amendment right to counsel

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.