On Point blog, page 109 of 485
Turning off idling car didn’t scotch probable cause
City of West Allis v. James M. Gregg, 2018AP1326, District 1, 5/14/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Sure, the car wasn’t running by the time the officer pulled up behind it with his squad lights flashing. But that doesn’t mean the officer lacked probable cause to believe the guy behind the wheel had been operating while intoxicated.
Harmless error and a “reasonable reading” of the record doomed dad’s appeal from TPR order
Dane County DHS v. T.S., 2019AP415, 5/9/19, District 4 (1-judge opinion, ineligible for publication); case activity
At the grounds phase of this TPR case, T.S. challenged the circuit court’s application of §48.415(2), the CHIPS ground for terminating his parental rights. He also argued that at the disposition phase the circuit court ignored one of the “best interests of the child” factors required by §48.426(3) and substituted in an improper factor. He lost on both counts.
Refusal hearing argument didn’t clearly raise issue argued on appeal, so it’s forfeited
State v. Danny L. Waters, 2018AP1455, District 4, 5/2/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The argument Waters made at his refusal hearing wasn’t sufficiently clear to preserve the issue for appeal.
If 2 guys have sex with a woman who becomes pregnant, both better assume parental responsibility
E.M.K. v. Z.T.R., 2018AP1896, District 2, 5/1/19 (1-judge opinion, ineligible for publication); case activity
That’s the upshot of this court of appeals decision. Before terminating a biological father’s parental rights, there must be a finding that he “failed to assume parental responsibility” under §48.415(6). But what if there is a dispute about whether he is actually the biological father of the child? The court of appeals holds that if only one other guy was having sex with the mother when she became pregnant then the unverified, biological father had “reason to believe” he was in fact the father and should assume parental responsibility for the child.
Court of appeals addresses its jurisdiction over order denying only part of a postconviction motion
State v. Sean R. Wolfe and State v. Donald Ray Ward, 2019 WI App 32; case activity here and here .
¶1 We hold that under established principles of finality, when a circuit court denies a RULE 809.30 postconviction motion in part and grants the motion in part such that further proceedings are required, an appeal cannot be taken until those further proceedings are completed. Because the judgments of conviction and the circuit court orders from which these appeals are taken do not dispose of the entire matter in litigation between the parties, we lack jurisdiction.
April 2019 publication list
On April 24, 2019, the court of appeals ordered the publication of the following decisions:
Winnebago County v. C.S., 2019 WI App 16 (involuntary medication of committed prisoners)
Brown County Human Services v. B.P. & T.F., 2019 WI App 18 (requirements for pleading “abandonment” under § 48.415; summary judgment reversed)
Admission of other acts evidence and sufficiency of evidence for homicide conviction affirmed
State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).
The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense. So, as you might guess, the appellate challenge regarding the admission of this evidence failed.
Driver’s silence constituted refusal; subpoenaed urine test results were admissible
State v. Gerald J. Vanderhoef, 2016AP2052-CR, District 1, 4/30/19 (not recommended for publication); case activity (including briefs)
Vanderhoef’s silence in response to the “Informing the Accused” form constituted a refusal to consent to a chemical test, so the subsequent blood draw was unlawful. However, the state subpoenaed the results of his urine test, and that evidence was admissible.
Court of appeals rejects jury pool and Batson challenges
State v. Michael Exhavier Dunn, 2018AP783-CR, 4/30/19, District 1 (not recommended for publication); case activity (including briefs).
The lead issues in this appeal are whether the jury pool for Dunn’s trial represented a fair cross section of the community and whether Dunn was denied equal protection when the DA struck 2 of the 3 African-Americans from the 30-person jury pool for his case.
OWI arrest automatically permits search of vehicle and all containers within it
State v. Mose B. Coffee, 2019 WI App 25; affirmed 6/5/20; case activity (including briefs)
This published decision should make for an interesting petition for review. The court of appeals rejects a prior unpublished opinion, State v. Hinderman, to hold:
¶13 . . . [W]hen an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found. Thus, the search of Coffee’s vehicle in this case was lawful and the circuit court properly denied his suppression motion.