On Point: 8. Counsel, 6th Am.

State v. Nelson Garcia, Jr., 2016AP1276-CR, petition for review of an unpublished court of appeals decision granted 12/12/18; case activity (including briefs)

Issues (from the petition for review)

1. Does the Sixth Amendment right to counsel attach upon the finding of probable cause and setting of bail by a court commissioner?
2. Was the line-up impermissibly suggestive because it violated the Department of Justice’s Model Policy and Procedure for Eyewitness Identification and the viewing witnesses failed to follow the standard instructions given to them?
3. Can a trial court at a pre-trial hearing decide that a defendant has waived the right to self-representation because the court believes the defendant will engage in disruptive behavior in front of the jury? If so, does the defendant have a right to redeem himself?

State v. Tyrus Lee Cooper, 2016AP375, review of a per curiam opinion granted 12/12/2018; case activity (including briefs)

Issues (from the petition for review):

1. When defendant’s counsel has engaged in serious professional misconduct leading up to the trial date affecting defendant’s meaningful participation in his own defense, does that provide a sufficient reason to withdraw a guilty plea prior to sentencing?
2. Did the the circuit court erroneously exercise its discretion when it denied defendant’s motion to withdraw his plea prior to sentencing without an evidentiary record to support substantial prejudice to the State?

State v. Kristy L. Malnory, 2018AP216-CR, District 4, 12/13/18 (one-judge decision; ineligible for publication); case activity (including briefs)

At Malnory’s trial for operating with a prohibited alcohol content, her lawyer failed to object to the admission of the “Blood/Urine Analysis” form completed at the time of her blood draw. She argues this was deficient performance because the form is testimonial, and admitting it without the testimony of the person who completed it violates her confrontation rights. Maybe so, says the court of appeals, but even if that’s true there was no prejudice.

State v. Howard D. Davis, 2017AP942-CR, District 1, 12/11/18 (not recommended for publication); case activity (including briefs)

Davis claimed trial counsel was ineffective in various ways, and that a juror may have introduced extraneous information into deliberations. The trial court denied his claims without a hearing. The court of appeals affirms.

State v. Steven L. Buckingham, 2017AP1852-CR, 12/4/18, District 1 (not recommended for publication), case activity (including briefs).

When the court of appeals’ dismisses an appellant’s arguments on the grounds that they are “conclusory,” it’s always wise to check the briefs. In this case,  Buckingham filed a fully-developed, well-organized 42-page brief in chief presenting 5 claims of ineffective assistance of trial counsel and a claim for post-conviction discovery.

State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)

This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of  Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept  subsequent, potentially less favorable offer. 

State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)

Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.

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. 

Fond du Lac County v. S.R.H., 2018AP1088-FT, 10/17/18, District 2 (1-judge opinion, eligible for publication); case activity

At the beginning of a Chapter 51 extension hearing, S.R.H. told the court that he wanted to fire his attorney, and he asked for a new one. When that failed, he asked the court “Your honor, could I go pro se?” The court ignored his request. The hearing proceeded, S.R.H. was recommitted, and the court of appeals here affirms in a decision worthy of SCOW’s review.

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)

The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.