On Point blog, page 11 of 22
Defense win: colloquy inadequate to waive right to physical presence
State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)
Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.
Juror’s glimpse of defendant chained to others wearing jail garb doesn’t warrant new trial
State v. Anthony Colon, 2016AP1071-CR, 2/7/17, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)
Colon was on trial for 2 felonies and 3 misdemeanors. During a break in deliberations, the bailiff happened to be transporting Colon to the court room. Colon was wearing street clothes, but he was chained to other defendants who were wearing orange jail garb. Upon learning that some of Colon’s jurors may have seen him that way, defense counsel asked the judge to question the jury, but he did not move for a mistrial.
Failing to provide defendant with complete information about Huber eligibility wasn’t ineffective
State v. William J. Drake, II, 2016AP724-CR, District 4, 2/2/17 (one-judge decision; ineligible for publication); case activity (including briefs)
It may be that Drake’s lawyer could have done a better job of looking into and advising him about the possibility his Huber privileges would be revoked, but that doesn’t mean counsel was ineffective. Thus, Drake doesn’t get to withdraw his pleas.
Counsel not ineffective in handling impeachment of defendant, defense witness with prior convictions
State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)
McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.
Counsel’s failure to object to hearsay and opinion evidence was not ineffective
State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)
B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.
Court rejects claim that revocation hearing lawyer was ineffective
State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)
Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.
DA tells jury: “In order to acquit you must find victims were lying”
State v. Gerrod R. Bell, 2015AP2667-2668-CR, 12/1/16, District 4 (not recommended for publication), petition for review granted 3/13/2017, affirmed, 2018 WI 28; case activity (including briefs)
Bell was convicted of sexually assaulting two sisters aged 14 and 17. At trial, the DA told the jury that it couldn’t acquit unless it first concluded that the sisters were lying and unless Bell established a reason for them to lie. On appeal, Bell argued that the DA’s argument violated the principles that the State has to prove guilt beyond a reasonable doubt, a defendant is presumed innocent, and a defendant has the right not to testify at trial. Bell also asserted ineffective assistance based on his lawyers failure to redact exhibits provided to the jury.
Lawyer’s decision to let state present hearsay survives habeas review
William Hinesley, III, v. Wendy Knight, 7th Circuit Court of Appeals No. 15-2122, 2016 WL 4758437, 9/13/16
Hinesley’s trial lawyer didn’t object to the state’s presentation of the inculpatory out-of-court statements of the two principal witnesses against him because he wanted all of the witnesses’ statements admitted to show how they had changed their stories and weren’t credible. The Seventh Circuit holds the state courts reasonably concluded trial counsel wasn’t ineffective for adopting and employing this strategy.
“Twilight zone” between great bodily harm and bodily harm is for jury
State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)
Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.
No error in joinder, denial of substitution
State v. Joe Bonds Turney, 2015AP1651-CR & 2015AP1652-CR, District 1, 8/30/16 (not recommended for publication); case activity (including briefs)
Turney claims the trial court erred in permitting joinder of two cases for trial and in denying his motion for substitution of judge following his arraignment. He also argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim, which was based on trial counsel’s failure to object to a witness’s reference to his post-arrest silence. The court of appeals rejects his claims.