On Point: b. Prejudice not found

State v. John P. Bougneit, 2018AP74, 10/24/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury convicted Bougneit of fourth-degree sexual assault; he allegedly nonconsensually fondled an 18-year-old woman under a blanket while he, the woman, and his wife were watching a movie together at their house. The wife testified for Bougneit and the state sought to damage her credibility by calling attention to her professed recall–in a statement to police and on the stand–of various seemingly minor details of the evening. 

State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)

The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.

State v. Keith J. Brooks, 2017AP1723-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Brooks was tried for first-degree intentional homicide. The jury acquitted him of that but convicted of the lesser-included first-degree reckless. He argues his trial lawyers were ineffective because they pursued a strategy that would have let the jury find him guilty of that count even if (as the defense contended) the victim had committed suicide.

State v. Brinkley L. Bridges, 2017AP2311-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Bridges pled to five felonies involving guns and drugs; the evidence against him was derived, in part, from a warrant police had obtained allowing them to track his cell phone. He argues counsel was ineffective for not challenging that warrant because the application didn’t show probable cause.

State v. T.W., 2018AP967 & 2018AP968, District 1, 8/21/18 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate T.W.’s parental rights, the GAL argued in closing that the jury should consider the interests of the children. T.W.’s lawyer didn’t object, but the court of appeals holds that failure wasn’t prejudicial and so rejects T.W.’s claim that trial counsel was ineffective.

State v. Melvin Lidall Terry, 2017AP1625, 8/7/18, District 1 (not recommended for publication); case activity (including briefs)

Police arrested Terry, his girlfriend Carter, and his brother X.C. soon after, and in the vicinity of, a fatal shooting. The police seated the three on the curb and directed one man who had witnessed the shooting to “look over and identify who it was”; he identified Terry.

State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)

Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)

This appeal concerns ineffective assistance of counsel in connection with 2 plea offers. Mbugua claimed that his 1st lawyer provided him incorrect information about option 2 of “plea offer 1” and this caused him to reject “plea offer 1” altogether. He also claims that during a second round of plea bargaining, option 2 of “plea offer 1” remained on the table, and his second lawyer incorrectly advised him to reject it in favor of an entirely new plea offer (we’ll call it “plea offer 2”), which proved to be bad deal. The court of appeals denied both claims for lack of prejudice based upon Lafler v. Cooper, 566 U.S. 156 (2012). A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).

State v. Royce O. Bernard, 2017AP2162-CR, District 1, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)

After being charged with carrying a concealed weapon, Bernard challenged the Terry stop that led to the charge. His suppression motion was denied. Postconviction he argued trial counsel was ineffective because he failed in various ways to undermine the credibility of the officer who stopped Bernard. The court of appeals holds Bernard’s postconviction motion failed to allege sufficient facts to get a Machner hearing.