On Point blog, page 1 of 1
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.
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.