On Point blog, page 23 of 33
TPR – Jury Instructions: Waiver of Issue; Ineffective Assistance
Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12
court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity
Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.
¶6 Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.
Evidence: Prior Inconsistent Statements- “State of Mind” Hearsay; Harmless Error / IAC-Prejudice
State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206
Evidence – Prior Inconsistent Statements
Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements,
Effective Assistance – OWI-Causing Injury; Cross-Examination; Presentation of Defense
State v. Tijuan L. Walker, 2010AP2587-CR, District 1, 11/29/11
court of appeals decision (not recommended for publication); for Walker: Matthew S. Pinix; case activity
Walker was tried for and convicted of injury by intoxicated use of a vehicle, § 940.25(1)(a), after his car collided with DeAnn Braggs’. A form accompanying the post-accident test kit containing Braggs’ blood (which had little or no alcohol content) noted that the vials of blood were labeled “Walker,
Ineffective Assistance of Counsel – Deficient Performance but non-Prejudicial
State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity
Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.
- Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.
Postconviction Proceedings – Expiration of Deadline for Ruling; Ineffective Assistance of Counsel – Voir Dire – Juror Bias
State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11
court of appeals decision (1-judge, not for publication); pro se; case activity
Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.
¶6 Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i). The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,
Ineffective Assistance of Counsel: Failure to Challenge Invalid DNA Search Warrant – Lack of Prejudice; Right to Present Defense: DNA Evidence
State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity
Ineffective Assistance of Counsel – DNA Search Warrant
Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:
¶10 Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,
Ineffective Assistance of Counsel
State v. Michael A. Clements, 2010AP1978-CR, District 4, 10/13/11
court of appeals decision (not recommended for publication); for Clements: Steven D. Grunder, SPD, Madison Appellate; case activity
Counsel’s performance not deficient, against claims that he failed to: impeach the complainant with a prior recorded statement; object on hearsay grounds to admissibility of her statement to a school counselor; object to the State’s closing-argument characterization of the sole defense witness;
Ineffective Assistance of Counsel – Lesser Offense; Sentencing – Exercise of Discretion
State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11
court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity
Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.
¶8 At the Machner hearing,
Ineffective Assistance; Sentencing – Review – Harsh and Excessive
State v. Burt Terrell Johnson, Jr., 2010AP2654-CR, District 1, 9/13/11
court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity
Counsel did not perform deficiently.
- Decision not to make opening statement was reasonable strategy, given that the defense didn’t plan to call any witnesses but instead intended “to put the State to its proof,” ¶21.
- Failure to object to State’s closing argument characterizing what the victim “saw”
Effective Assistance – Jury Selection – Objective Bias; Failure to Object to State’s Voir Dire
State v. Stephen R. Jones, 2011AP864-CR, District 3, 8/30/11
court of appeals decision (1-judge, not for publication; for Jones: Brian P. Dimmer; case activity)
Failure to move to strike juror wasn’t deficient performance. Juror’s public support of election of the presiding judge and the district attorney (who was not herself prosecuting this case) didn’t establish a significant relationship with either individual to establish “objective bias.” State v.