On Point: 46. WI Court of Appeals

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

City of Milwaukee v. David B. Munzinger, 2018AP2186, 7/23/2019, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Munzinger fought his OWI citation in the municipal court and lost; he filed an appeal to the circuit court pursuant to Wis. Stat. § 800.14. To do this, his counsel filed a form  in the circuit court captioned “Notice of Appeal” (probably this one, provided by the municipal court). He also emailed the city attorney alerting him to the appeal and apparently spoke to him about it. But, his email didn’t include a copy of the “Notice of Appeal” form. The city moved to dismiss and the circuit court granted the motion.

State v. Craig L. Miller, 2018AP2161-CR, 7/18/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Miller pled guilty to disorderly conduct as a domestic abuse incident and as a repeater. He appealed arguing that his plea was not knowing, intelligent and voluntary because of his schizophrenia diagnosis and the medication he was taking. The court of appeals ruled against him due to a lack of evidence.

State v. Denise R. Campbell, 2018AP1190, 7/16/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a state’s appeal of the suppression of evidence derived from the stopping of Denise Campbell’s vehicle. The arresting deputy testified to various unusual driving behaviors and, in the court of appeals’ view, the trial court credited that testimony but misapplied the law to the facts. The court of appeals accordingly reverses the grant of suppression.

Walworth County DHS v. S.S.K., 2019AP782, 7/17/19, District 2 (1-judge opinion, ineligible for publication); case activity

During the grounds phase of the Walworth County’s TPR case against S.S.K., she “admitted” the ground of continuing CHIPS; she didn’t plead “no contest.”  This distinction proved decisive to the court of appeals’ decision to affirm the termination of her parental rights to her daughter, A.S.L. 

State v. Kevin B. Hutchins, 2018AP1144-CR, 7/16/2019, District 1 (not recommended for publication); case activity (including briefs)

Hutchins had a jury trial for the alleged sexual assault, false imprisonment, and battery of the mother of his children. The judge permitted her to testify, over objection, that he had hit her on other, earlier occasions–the proffered purpose of this testimony being to show why she didn’t immediately go to the police after this incident (and thus, apparently, to defend the credibility of her story). The court of appeals affirms.

State v. Andreal Washington, 2018AP1254-CR, 7/9/19, District 1 (not recommended for publication); case activity (including briefs)

A jury acquitted Washington of the felony murder of Williams. Then the State charged him with 2nd degree reckless homicide. Washington moved to dismiss on double jeopardy grounds. The circuit court denied the motion, and the court of appeals here affirms.

State v. John E. Paul, 2018AP1496, 7/11/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Paul had three prior OWIs and was on trial for a fourth, plus the associated PAC charge. During voir dire, the prosecutor told the jury that

the other thing is the prohibited alcohol concentration in this particular case is .02. Now, many of you may have heard of the .08, but in this instance, the prohibited alcohol concentration is .02. Now, is there any person here who thinks it’s unfair that somebody could be prosecuted or convicted of the offense of operating a motor vehicle with a prohibited alcohol concentration of .02 percent or .02 grams per 210—I forgot, but per deciliter of the  defendant’s breath? So it’s a .02 standard. Is there any person here who thinks that would be unfair?

State v. David Gutierrez, 2019 WI App 41, petition for review granted, 11/13/19, reversed in part and affirmed in part, 2020 WI 52; case activity (including briefs)

The circuit court allowed the state to admit testimony that Gutierrez’s DNA wasn’t found after testing of relevant evidence state as well as testimony about why his DNA might not be found; it did not, however, allow Gutierrez to admit evidence that the DNA of other men had been found. This was error.

State v. Marwan Mahajni, 2017AP1184-CR, 6/27/19, District 1 (not recommended for publication); case activity (including briefs)

Mahajni moved for a new trial because, during deliberations in his case, the bailiff told the jury that they could not deadlock. They had to reach a unanimous verdict of guilty or not guilty. The circuit court denied Mahajni’s motion, so he moved for reconsideration and this time submitted 2 juror affidavits supporting his motion. He lost again. The court appeals here reverses and remands the case for an evidentiary hearing.