On Point blog, page 3 of 22
SCOW ignores import of withheld evidence; declares it “immaterial”
State v. Jeffrey L. Hineman, 2023 WI 1, 1/10/23, reversing a per curiam court of appeals opinion, 2020AP226, case activity (including briefs)
At Hineman’s trial for sexual assault of a child, a police officer testified that she believed the child had accused Hineman of touching him several months before her investigation began, and several months before the child made similar statements in a forensic interview. This wasn’t true, and the officer’s police report contradicted her testimony on this point: it said a CPS report had noted no allegations of abuse. But when defense counsel attempted to impeach the officer with her own report, the officer testified that she “didn’t know if” she’d “documented” the alleged prior consistent accusation, and while she “would think [she] would have” written such information in the report, she “might not have.” It would have been easy to prove conclusively that there was no such allegation: counsel just needed the CPS report. But she didn’t have it, because the state–in what it concedes was a violation of its Brady obligations–didn’t turn it over. SCOW now says “eh, who cares?” and reverses the court of appeals’ grant of a new trial.
COA says open container, odor of intoxicants, possession of weed were reasonable suspicion for OWI investigation
State v. Nicholas A. Conger, 2022AP844, 12/14/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
A cop stopped Conger’s vehicle for a broken high-mounted stop lamp. On approaching the vehicle, the officer would testify, he smelled intoxicants. He asked Conger what he was smelling, to which Conger replied “Probably the pot.” Conger then turned over a small amount of cannabis and an open can of Mike’s Hard Lemonade to the officer. He also said he’d had some alcohol. The officer asked Conger to perform field sobriety tests; Conger agreed and was ultimately arrested for, charged with, and convicted of operating with a detectable amount of a restricted controlled substance in his blood.
Counsel performed deficiently, failed to object to GAL’s closing argument at TPR trial
Chippewa County Dep’t of Health and Human Servs. v. J.W.., 2021AP1986, 7/19/22, District 3, (1-judge opinion, ineligible for publication); case activity
“Janine” raised an insufficient evidence claim and several ineffective assistance of counsel claims in her appeal from an order terminating her parental right to her son. This post focuses on two of the IAC claims. Counsel failed to object to (1) portions of the county social worker’s testimony, and (2) new information that the GAL introduced during closing statements.
COA rejects IAC claims based on the failure to seek suppression of an in-court identification
State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)
The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.
SCOW makes it easier to use evidence obtained by jailhouse snitches
State v. Richard M. Arrington, 2022 WI 53, reversing a published court of appeals opinion, 2021 WI App 32, 7/1/22, case activity (including briefs)
In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.
Counsel wasn’t ineffective in OWI/PAC prosecution
State v. Eric Trygve Kothbauer, 2020AP1406-CR, District 3, 5/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Kothbauer challenges his trial lawyer’s representation in a prosecution for operating while intoxicated and with a prohibited alcohol concentration. The court of appeals holds trial counsel wasn’t deficient or, even if he was, the deficiency wasn’t prejudicial.
Court of Appeals addresses successive postconviction motion, judge’s use of written rather than oral sentencing rationale
State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)
This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).
CoA rejects claims of Brady violation, IAC, and erroneous admission of unauthenticated letters
State v. Ronald Henry Griffin, 2020AP1750-CR, 2/22/22, District 1; case activity (including briefs)
Griffin and his friend, Taylor, were charged with sexually assaulting T.H. Taylor pled and agreed to testify against Griffin, who went to trial and was found guilty. He filed a pro se appeal arguing that (1) the State failed to turn over Brady evidence (2) he received ineffective assistance of counsel, and (3) the circuit court erroneously admitted two letters, which were not authenticated. The court of appeals affirmed the conviction but Judge Dugan filed a concurrence on the third issue.
COA: lawyer’s failure to communicate in homicide case wasn’t IAC; trial court didn’t err in preventing client from firing him
State v. Daimon Von Jackson, Jr., 2019AP2383, 12/29/21, District 2 (not recommended for publication) case activity (including briefs); petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23
Jackson admitted being involved in a planned robbery that ended in the shooting death of its target. He said–and eyewitness testimony and physical evidence corroborated–that he wasn’t the shooter; instead he said he was the lookout. The state charged him with felony murder, armed robbery and being a felon in possession of a gun. Eventually, he entered a plea to second-degree reckless homicide. He says this plea came about because his trial lawyer, by lack of communication or preparation for trial, left him no choice–and the circuit court refused to allow him to dismiss that lawyer.
COA rejects IAC claim and finds no new factor regarding sex offender registry
State v. James A. Carroll, Jr., 2021AP375, 8/26/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Carroll was charged with second-degree sexual assault; he ultimately took a deal and pleaded to fourth-degree. The circuit court required him to register as a sex offender for 15 years after the end of his supervision. The court of appeals rejects Carroll’s claims that his counsel’s deficiencies led to the plea, and that new factors justified modifying his sentence to remove the registration requirement.