On Point blog, page 25 of 55
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
Challenge to postconviction counsel’s representation fails
State v. Larry D. Wright, 2014AP2672, District 1, 11/24/15 (not recommended for publication); case activity (including State’s brief)
The court of appeals rebuffs Wright’s claim that postconviction counsel was ineffective for not raising a claim of ineffective assistance of trial counsel on direct appeal. The court also rejects Wright’s claim that the trial court engaged in improper ex parte communication with the jury during deliberations.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Introduction of evidence of prior TPR, parenting of other children, didn’t entitle parent to new TPR trial
Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity
A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.
GAL’s representation of corporation counsel in unrelated matter didn’t create conflict of interest in TPR case
La Crosse County HSD v. C.J.T., 2015AP252, District 4, 10/16/15 (one-judge decision; ineligible for publication); case activity
The fact that the County’s attorney handling this TPR proceeding retained the GAL in the case to represent the her in an unrelated personal injury matter didn’t create a conflict of interest that required a new trial.
SCOTUS: “Right to counsel” guarantees reasonable competence not perfect advocacy
Maryland v. Kulbicki, USSC No. 14-848 (per curiam) (October 5, 2015) granting cert and reversing Kulbicki v. State, 99 A.3d 730, 440 Md. 33 (2014); SCOTUSblog page
This is a summary reversal of a Maryland Court of Appeal’s decision, which held that Kulbicki’s defense lawyers were constitutionally ineffective back in 1995. A jury convicted Kulbicki of 1st-degree murder for shooting his mistress. The State’s case rested on a Comparative Bullet Lead Analysis, which the scientific community generally accepted then, but doesn’t now.
Circuit court must hold hearing on allegation that defendant wasn’t advised about domestic abuse modifier
State v. Martin F. Kennedy, 2015AP475-CR, District 1, 9/29/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erred in denying Kennedy’s plea withdrawal motion without a hearing, as the record of the plea shows he wasn’t advised about the domestic abuse modifier at the time of his plea and Kennedy alleged his trial lawyer was ineffective for failing to advise him of the modifier.
References to victim’s truthfulness, parochial schooling don’t merit new trial
State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)
Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”
Court of appeals rejects multiple challenges to conviction for failure to pay child support
State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)
Phillips challenges his conviction for failing to pay child support because: (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing. The court of appeals rejects all of Phillips’s claims.
Trial counsel’s error in eliciting evidence precluded by limine order wasn’t prejudicial
State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.