On Point blog, page 16 of 33
Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation
State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)
In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.
“I was out of town at time of the crime” is an alibi, not a “simple defense”
State v. Derek J. Copeland, 2014AP929-CR, 3/5/15, District 4 (not recommended for publication); click here for docket and briefs
This case explores the line between a between a “simple defense” defined as “I was last at the scene of the crime on a date that preceded the crime” versus an “alibi” defense defined as “I was at a different location and unable to get to the scene of the crime on the date it occurred.”
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Performance not deficient where counsel promised defendant would testify but didn’t call him
State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket
During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.
Defendant forfeited right to counsel of choice; failed to show deficient performance
State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs
A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.
State v. Shata, 2013AP1437-CR and State v. Ortiz-Mondragon, 2013AP2435-CR, petitions for review granted 12/18/14
Review of two court of appeals decisions (one published, one unpublished) that will be argued together. State v. Shata (case activity) and State v. Ortiz-Mondragon (case activity)
Issue in Shata (composed by On Point)
Whether the defendant, a foreign national, should be permitted to withdraw his guilty plea because his trial counsel failed to provide him with “complete and accurate” information about the deportation consequences of pleading guilty?
Court of appeals “sympathizes” with angst of dedicated criminal defense lawyers?!
State v. David M. Carlson, 2014 WI App 124; case activity
Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients. Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.
Counsel wasn’t ineffective for failing to request certain jury instructions or objecting to prosecutor’s closing
State v. Ryan P. O’Boyle, 2014AP80-CR, District 1, 11/4/14 (not recommended for publication); case activity
O’Boyle’s claims of ineffective assistance of counsel are rejected because trial counsel’s performance wasn’t deficient.
Counsel wasn’t ineffective for waiving prelim and not moving to suppress statement
State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity
Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.