On Point blog, page 12 of 55
Court of appeals approves no-knock warrant; finds no Brady violation
State v. Robert Brian Spencer, 2017AP1722-CR, 4/16/19, District 1 (not recommended for publication); case activity (including briefs)
Spencer raised many issues on appeal: insufficient evidence to support his conviction, multiple ineffective assistance of counsel claims, and a Brady violation. This post focuses on the 2 most interesting claims: ineffective assistance for failure to move to suppress evidence obtain via a no-knock warrant and the DA’s failure to turn over evidence of an officer’s disciplinary history.
Escalona hurdle overcome, but § 974.06 motion rejected on merits
State v. Casey M. Fisher, 2017AP868, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)
Fisher’s § 974.06 postconviction motion clears the hurdle erected by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), but fails on the merits.
Ineffective assistance, multiplicity claims rejected
State v. Martez C. Fennell, 2017AP2480-CR, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)
Fennell unsuccessfully challenges his convictions for armed robbery and operating a vehicle without the owner’s consent, arguing that the charges are multiplicitous and that trial counsel should have subpoenaed a witness who would have impeached the victim’s identification of him.
Officer’s testimony about defendant’s evasive behavior during interview okay under Haseltine
State v. Edward L. Branson, 2018AP873-CR, 3/21/19, District 4 (not recommended for publication); case activity (including briefs)
Branson was convicted of possession with intent to deliver methamphetamine. He argued that his lawyer was ineffective for failing to object to an officer’s testimony comparing his behavior to that of the passenger in his car where a bag of meth was found. The officer described the passenger as calm, helpful and willing to look him in the eye. In contrast, he described Branson as nervous and failing to make eye contact.
Trial counsel wasn’t deficient in cross examining complaining witness
State v. Harvey A. Talley, 2018AP786-CR, 2018AP787-CR, & 2018AP788-CR, District 1, 3/19/19 (not recommended for publication); case activity (including briefs)
Talley, who was convicted of first degree sexual assault causing pregnancy in violation of § 940.225(1)(a), argues trial counsel was ineffective for failing to elicit testimony from A.D., the complainant, the reasons why she initially falsely alleged Talley had forcible, nonconsensual sex with her. The court of appeals holds trial counsel’s strategy in questioning A.D. was reasonable.
Failure to impeach, newly discovered evidence don’t merit new trial
State v. Rondale Darmon Tenner, 2018AP1115-CR, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)
Tenner complains his lawyer was ineffective for failing to impeach one of the state’s witnesses with her prior convictions. He also says he should get a new trial because he has an affidavit from a new witness who says another state’s witness actually committed the crime pinned on Tenner. The court of appeals disagrees.
SCOTUS: lawyer who ignores client’s request for appeal from guilty plea is ineffective
Garza v. Idaho, USSC No. 17-1026, reversing Garza v. State, 405 P.3d 576 (Idaho 2017); Scotusblog page (includes links to briefs and commentary)
This case involved two plea agreements that included clauses stating that Garza waived his right to appeal. After sentencing, Garza told his lawyer that he wanted to appeal, but his lawyer refused due to the plea agreement. Garza filed claim for ineffective assistance of counsel. Siding with Garza, SCOTUS held that counsel performed deficiently and that “prejudiced is presumed” because the failure to file a notice of appeal deprived Garza of an appeal altogether. Opinion at 1.
Defendant must testify to prove that, but for counsel’s advice to plead, he would have gone to trial
State v. Jeninga, 2019 WI App 14; case activity (including briefs)
Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.
SCOW alters test for whether state “suppressed” evidence under Brady v. Maryland
State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)
The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.
Court of appeals rejects claim that counsel became a witness in his client’s case and should have withdrawn
State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)
On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.