On Point: A. In-Custody, 5th Amendment

State v. Russell S. Krancki, 2014 WI App 80; case activity

In the first Wisconsin case to address how Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), affects the admission of evidence of a defendant’s silence, the court of appeals reads Salinas to apply to a narrow factual scenario not present in this case. The court goes on to assume that trial counsel should have objected to testimony about Krancki’s silence, but finds his failure to object wasn’t prejudicial. The court also concludes trial counsel wasn’t ineffective for saying in his opening statement that Krancki would testify or for failing to exclude references to the .02 blood alcohol limit.

State v. Thaddeus M. Lietz, 2013AP1283-CR, District 3, 5/20/14 (1-judge; ineligible for publication); case activity

Leitz’s statements to police were not obtained in violation of either the Fifth or Sixth Amendment, so the circuit court properly denied his suppression motion.

State v. Brandon D Andre Burnside, 2013AP1293-CR, District 1, 4/29/14 (not recommended for publication); case activity

Under the totality of the circumstances, a reasonable person in Burnside’s position would not have believed that he could stop police questioning and leave. Therefore, the statements he made to the police before they administered Miranda warnings must be suppressed.

Randy White v. Robert Keith Woodall, USSC No. 12-794, 4/23/14, reversing and remanding Woodall v. Simpson, 685 F.3d 574 (6th Cir. 2012); case activity

It’s getting harder and harder to win a habeas case.  Woodall requested an instruction forbidding jurors from drawing adverse inferences from his decision to not testify during the penalty phase of his capital murder trial.  The majority opinion, authored by Scalia, held that SCOTUS precedent requiring a “no adverse inference” instruction was clearly established for the guilt phase of a trial, but not the penalty phase.

Review of 2 unpublished per curiam court of appeals decisions in 2 unrelated cases now joined for purposes of oral argument.

State v. Carlos A. Cummings, District 4 court of appeals decision, case activity

State v. Adrean L. Smith, District 1 court of appeals decision, case activity

Cummings and Smith both present the question of whether defendants invoked their 5th Amendment right to cut off police interrogations. 

State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity

Trial counsel’s failure to impeach witness with mental health condition was not prejudicial

Trial counsel was not ineffective for failing to impeach the credibility of a witness who testified that Bernard told her “I think I killed a boy.” Bernard argued the witness suffers from a mental condition that affects her perceptions and recollections and that trial counsel should have requested access to the witness’s mental health records and used the records to impeach her.

State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity

A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes.  Two issues are noteworthy.

Miranda-Edwards issue:  Police began questioning Smith while he was in custody.  He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present,

State v. Andrew M. Edler, 2013 WI 73, on certification of the court of appeals; majority opinion by Justice Crooks; case activity

Maryland v. Shatzer, 559 U.S. 98 (2010), allows police to reinitiate interrogation of a defendant who invoked his right to counsel if the defendant has been released from custody for at least 14 days. The Wisconsin Supreme Court now adopts the Shatzer rule,

State v. Ladarius Marshall, 2012AP140-CR, District 1, 7/2/13; court of appeals decision (not recommended for publication); case activity

The trial court properly denied Marshall’s motion to suppress his statements to police made during on-again off-again interrogation lasting from 10:45 a.m. to 9:00 p.m. The court first rejects Marshall’s argument he didn’t invoke his right to remain silent:

¶21      The circuit court found that Marshall never unequivocally and unambiguously invoked his right to remain silent.

State v. Haven Pettigrew, 2012AP1860-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Reference to right against self-incrimination

Defense counsel revealed her theory of defense for the first time in her opening statement. During direct examination of the lead detective if that was the first time he had heard that theory. Defense counsel objected before the question was even finished, and the court sustained the objection,