On Point: 46. WI Court of Appeals

Brown County Human Services v. B.P and T.F., 2019 WI App 18; case activity

T.F. argued that when the Department seeks to terminate parental rights on the grounds of abandonment in a case where the child is out of the home and a CHIPS order is in place, it must proceed under §48.415(1)(a)2., rather than (a)3. T.F. also argued that allowing the Department to proceed under (a)3 would result in an Equal Protection violation. The court of appeals rejected these arguments but held that the circuit court erred in granting summary judgment with respect to T.F. because material facts were in dispute over whether she had good cause for abandoning her daughter, Allie.

State v. Christopher Deshawn McGinnis, 2017AP2224-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)

The court of appeals found certain hearsay statements admissible under the “statement against penal interest” and “prior inconsistent statement” exceptions to the hearsay rule. It also held that part of a detective’s testimony qualified as hearsay, but its admission was harmless error.

Marquette County v. Christopher Patrick Bray, 2018AP665, 2/28/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs).

Bray was convicted of OWI. He argued that the circuit court should have suppressed statements he made to a sergeant during a traffic stop because he wasn’t Mirandized. The court of appeals held that Bray wasn’t in custody so no Miranda warning was necessary.

State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.

State v. Deshawn J. Driver, 2018AP870-CR, District 1, 2/26/19 (not recommended for publication); case activity (including briefs)

At the start of Driver’s restitution hearing, before hearing testimony from any witness, the judge told defense counsel on the record that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the judge that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Does that show “objective bias”? You bet it does.

State v. Ashlee A. Martinson, 2017AP1889-CR, District 3, 2/20/19 (not recommended for publication); case activity (including briefs)

Martinson was charged with two counts of first-degree intentional homicide for killing her mother and stepfather. She pled to second-degree intentional homicide based on her claim of adequate provocation, which is premised on a complete lack of self-control, § 939.44(1)(a). That mitigating defense didn’t preclude the sentencing court from basing its sentence on the conclusion the defendant “had a choice” whether to kill the victims.

State v. Kelly James Kloss, 2019 WI App 13, petition and cross petition for review granted, 6/11/19, petitions dismissed as improvidently granted, 3/6/20; case activity (including briefs)

Bad news first: Addressing an issue of first impression, the court of appeals held that Wisconsin now recognizes the crime of solicitation of 1st degree reckless injury. Good news: Solicitation of 1st degree recklessly endangering safety is a lesser included offense of solicitation of 1st degree reckless injury, which means that convicting a defendant of both violates multiplicity principles and Double Jeopardy. Defense wins!

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)

After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.

State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion.  See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.