On Point blog, page 35 of 70
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
Trial counsel’s exchange with trial court about a misstatment of fact in a suppression motion didn’t create conflict of interest or establish judicial bias
State v. Marcos Ordonia-Roman, 2012AP1371-CR, District 1/4, 4/10/14; court of appeals decision (not recommended for publication); case activity
In a motion to suppress Ordonia-Roman’s confession, trial counsel alleged that during his interrogation Ordonia-Roman was without a required medication and was not allowed to take the medication. At the suppression hearing, however, Ordonia-Roman testified he had been prescribed the medication,
Federal district court grants habeas relief because Wisconsin Court of Appeals’ unreasonably determined facts in appeal addressing defendant’s request to reinstate right to counsel
Joel D. Rhodes v. Michael Meisner, No. 13-C-0161 (E.D. Wis. Mar. 12, 2014)
Judge Lynn Adelman of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Joel Rhodes, concluding that in State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, the Wisconsin Court of Appeals unreasonably determined that the trial court properly exercised his discretion in denying Rhodes’s request to reinstate his right to counsel on the eve of trial.
Trial counsel was not ineffective for failing to challenge photo array evidence or object to alleged prosecutorial misconduct
State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:
- Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’
No error in failure to give instructions on lesser included homicide charges where defendant’s trial testimony didn’t support them
State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity
The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:
¶14 The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses.
SCOTUS: Trial lawyer’s failure to seek funds to hire better expert, based on mistaken belief about funding cap, amounts to deficient performance
Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).
Docket here.
Trial lawyers, listen up. Check your expert witness funding cap before settling for an “expert” you know is sub par.
In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets. The first two managers died.
Trial counsel’s performance at TPR trial, if deficient, was not prejudicial
Aaron W.M. v. Britany T.H., 2013AP2123, District 4, 2/13/14; court of appeals decision (1-judge; ineligible for publication); case activity
Britany claimed trial counsel was ineffective for not objecting to: 1) hearsay testimony from the child’s father that related incidents of Britany’s bad parenting; and 2) the petitioner’s “golden rule” rule argument during closing, which asked the jurors to view the case as if the child were their own, thus improperly asking the jurors to “internalize and personalize the case,
Admission of other-acts evidence wasn’t error; trial court properly denied mistrial motion
State v. Timothy A. Jago, 2013AP1084-CR, District 1, 2/4/14; court of appeals decision (not recommended for publication); case activity
Trial counsel was not ineffective for failing to move in limine to exclude other-acts evidence–specifically, evidence that Jago told the victim he has only pointed a gun at two people in his life, the victim and the man he killed in Illinois. (¶¶4, 16, 19). Jago’s trial lawyer reasonably relied on an agreement with the prosecutor to keep this statement out of evidence.
No warrant, no affidavit, no worries. Failure to file suppression motion wasn’t ineffective assistance of counsel
State v. James Howard, 2013AP190-CR; 1/22/14; District 1; (not recommended for publication); case activity
Howard, a former correctional officer, was convicted of 2nd and 3rd degree sexual assault of an inmate at the Milwaukee County Criminal Justice Facility. On appeal he argued that his trial counsel was ineffective for failing to: (1) move to suppress buccal swab evidence obtained without a warrant, (2) move to suppress penile swab evidence because the warrant for it was not supported by an affidavit,
Parents in TPR proceeding not prejudiced by GAL’s connections to judge and prior representation of child at CHIPS hearing
Manitowoc County Human Services Dep’t v. Rebecca H, 2013AP421/422; 1/22/14; District 2 (not recommended for publication); case activity
This is an appeal from an order terminating a couple’s parental rights to their daughter. They claimed their trial lawyer provided ineffective of assistance of counsel by failing to object to the admission of various types of evidence. The court of appeals quickly disposed of those errors through repeated findings that counsel’s performance was not deficient–which is one of the two requirements for ineffective assistance of counsel per A.S.