On Point blog, page 135 of 485

Circuit court properly rejected claim that refusal was justified due to physical disability or disease

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

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Court of Appeals rejects challenges to child sexual assault convictions

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

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February 2018 publication list

On February 28, 2018, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Marcos Rosas Villegas, 2018 WI App 9 (addressing guilty plea waiver rule and holding lawyers need not advice clients about DACA consequences of plea)

State v. Mario Douglas, 2018 WI App 12 (inaccurate advice about consequences of going to trial invalidated plea)

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Defendant pleading NGI doesn’t need to know maximum length of commitment

State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)

Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.

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Court of Appeals asks SCOW to review juvenile life sentences

State v. Curtis L. Walker & State v. Omer Ninham, 2016AP1058 & 2016AP2098, Districts I & III, 3/6/18; case activity (including briefs): Walker; Ninham

Issue:

We certify these appeals to determine whether Wisconsin case law regarding life sentences without parole for juvenile murderers comports with recent pronouncements from the United States Supreme Court, and whether the sentencing courts in these cases adequately considered the mitigating effect of the defendants’ youth in accord with those Supreme Court pronouncements.

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Court of Appeals construes “directed at” element of stalking statute

State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.

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Other-acts evidence proper; prosecutor’s closing improper, but not prejudicial

State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.

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Mistake about whether sentence would be served in jail or prison doesn’t require sentence modification or resentencing

State v. Bruce D. Johnson, 2017AP834-CR, District 3, 3/6/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Even if the sentencing court erroneously thought the sentence he was imposing on Johnson would be served in the jail rather than prison, that mistake doesn’t provide grounds for a sentence modification or resentencing.

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Trial judge answered jury question without consulting the parties, but error was harmless

State v. Roman D. Lovelace, 2017AP943-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

During deliberations at Lovelace’s trial on a charge of burglary as party to a crime, the jury sent a note to the judge asking how burglary and party to a crime “relate” and whether they were “two separate charges or one in the same.” Without consulting the parties the court sent a written response telling the jury to review the written instructions they were given. (¶4). The judge shouldn’t have done that without consulting Lovelace’s attorney, but the error was harmless.

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Lineup procedure was not suggestive

State v. Jamey Lamont Jackson, 2017AP968-CR, Distirct 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Jackson argues his trial lawyer should have moved to suppress the identifications of him in a live lineup viewed by three eyewitnesses to a crime. He claims the identification procedure was impermissibly suggestive because, before the witnesses were interviewed about whether they could identify anyone in the lineup, one witness asked to view the person in position number five (Jackson) again and therefore suggested to the other witnesses who they should identify. (¶¶3, 11). The court of appeals disagrees.

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