On Point blog, page 27 of 55
Voir dire panel “untainted” despite deputy/juror’s assertion that State had enough evidence to convict defendant
State v. Dawn M. Hackel, 2014AP1765-CR, District 4, 3/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
During voir dire at an OWI trial, a sheriff’s deputy/prospective juror said he had arrested drunk drivers, testified in drunk driving cases, and said that based on his professional training and occupation the State had sufficient evince to convict Hackel, and, therefore, she was guilty as charged. The court of appeals held this in no way tainted the jury panel heading into trial.
Improperly admitted identification evidence doesn’t merit new trial
State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)
A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.
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State v. Derek J. Copeland, 2014AP929-CR, 3/5/15, District 4 (not recommended for publication); click here for docket and briefs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State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.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.
Court of appeals affirms plea though defendant misunderstood appellate rights; trips over law governing plea withdrawal and IAC
State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs
This decision smells like SCOW bait. Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.
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.
Termination of dominatrix’s parental rights upheld despite jury instruction error
State . Michelle M., 2014ap1539, District 1; 1/27/15 (one-judge opinion; ineligible for publication); case activity
In this TPR case, a circuit court instructed a jury using the version of WIS JI-Children 346 that allows consideration of whether a mother has exposed her child to a hazardous living environment. The court should have given the prior version, which did not mention this consideration. According to the court of appeals, the jury could consider the point whether the instruction explicitly mentioned it or not.