On Point blog, page 13 of 26
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State v. Ramon G. Gonzalez, 2012AP1818-CR, District 1, 7/23/13; court of appeals decision (not recommended for publication), petition for review granted, 1/19/14, affirmed, 2014 WI 124; case activity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State v. Ladarius Marshall, 2012AP140-CR, District 1, 7/2/13; court of appeals decision (not recommended for publication); case activity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State v. Haven Pettigrew, 2012AP1860-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity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.
Wisconsin Supreme Court rejects argument that Miranda protections apply when custody is “imminent”
State v. Matthew A. Lonkoski, 2013 WI 30, affirming unpublished court of appeals decision; case activity
About 30 minutes into being questioned by police about the death of his daughter, Matthew Lonkoski said he wanted a lawyer. (¶12). Under Edwards v. Arizona, 451 U.S. 477 (1981), the invocation of the right to counsel would mean the police had to cease interrogation unless Lonkoski reinitiated the interview.
Miranda custody; “private safety” exception to Miranda
State v. Corey J. Uhlenberg, 2013 WI App 59; case activity
Miranda custody
Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:
¶11 Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest.
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy with defendant; ineffective assistance of counsel
State v. Mark J. Libecki, 2013 WI App 49; case activity
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy
In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,