On Point blog, page 12 of 25
When a defendant asserts a “mental status” defense, Fifth Amendment allows state to use court-ordered psych exams in rebuttal
Kansas v. Cheever, USSC No. 12-609, 12/11/13
United States Supreme Court decision, reversing Kansas v. Cheever, 284 P.3d 1007 (Kan. 2012).
The Supreme Court unanimously holds that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.”
Failure to impeach witness with mental health condition. Failure to request WIs. J.I.-Criminal 245 on accomplice testimony. Interrogation — Miranda custody; interrogator’s comments on truthfulness
State v. Deandre J. Bernard, 2012AP750-CR, District 4, 10/17/13; court of appeals decision (not recommended for publication); case activity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.
Court of appeals: of curative instructions and smelly skunks
State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity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,
Self-incrimination — requiring defendant to show physical characteristic to jury. Closing argument — state’s reference to defendant’s failure to call witnesses. Prior inconsistent statement — witness’s lack of recollection
State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity
Self-incrimination — requiring defendant to show physical characteristic to jury
Where inmate victim of battery by another prisoner identified one of his assailants as an inmate “with platinum teeth”
Wisconsin Supreme Court adopts rule that assertion of right to counsel expires after a 14 day break in custody
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,
Confession — invocation of right to remain silent; voluntariness
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.
Reference to defendant’s right against self-incrimination; newly discovered evidence — recantation
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,
Randy White, Warden, v. Robert Keith Woodall, USSC No. 12-704, cert granted 6/27/13
1. Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances.
2. Whether the Sixth Circuit violated the harmless error standard in Brecht v.
Lack of proof dooms claim that statement to probation agent was compelled by threat of revocation
State v. Gregory M. Sahs, 2013 WI 51, on review of unpublished court of appeals decision; case activity
Sahs, on probation for child pornography, admitted to his probation agent that he again possessed child pornography. He was charged based on evidence seized as a result of his admission. He sought to suppress the evidence, claiming his admissions were compelled by the threat of revocation if he didn’t give his agent a true and accurate account of his activities.
U.S. Supreme Court again holds remaining silent is not enough to invoke the right to remain silent
Genovevo Salinas v. Texas, USSC No. 12-246, 6/17/13
United States Supreme Court decision, affirming Salinas v. State, 369 S.W.2d 176 (Tex. Crim. App. 2012)
Consistent with the rule applied to a defendant’s silence after being informed of his Miranda rights, the Supreme Court holds that a suspect who is being questioned before he was arrested and read Miranda does not invoke his right against self-incrimination by merely staying quiet in response to police questioning.