On Point blog, page 159 of 485
Erroneous admission of social worker’s expert testimony on ultimate issue was harmless
Dane County D.H.S. v. J.B., 2016AP2422, District 4, 2/16/17 (1-judge opinion, ineligible for publication); case activity
To terminate parental rights based on the “continuing CHIPS” ground, the jury had find that there was a substantial likelihood that JB would not meet the conditions for the safe return of her child within 9 months of the hearing. §48.415(2)(a). The circuit court admitted a social worker’s expert testimony on this issue, apparently without following §907.02 and Daubert v. Merrell Dow Pharmacueticals. The court of appeals assumed error but declared it harmless.
Moving driver 8 miles to conduct field sobriety tests didn’t transform stop into arrest
State v. Dane C. McKeel, 2016AP884-CR, District 4, 2/16/17 (one-judge decision; ineligible for publication); case activity (including briefs)
“Due to the extremely cold, windy, icy, and snowy conditions” police moved McKeel approximately 8 miles from where he was stopped to a local police department so that McKeel had the “best opportunity” to complete field sobriety tests. (¶¶4-5). Moving McKeel this far did not transform the stop into an arrest.
Officer’s reference to PBT didn’t require mistrial
City of New Berlin v. Bryon R. Hrin, 2016AP239, District 2, 2/15/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly exercised its discretion in denying a mistrial after the arresting officer’s testified that, having completed the field sobriety tests, he “administered a preliminary breath test, PBT.” (¶4).
PSI author had no “implied bias” against defendant who had threatened his co-workers
State v. Charles J. Hartleben, 2016AP1066-CR, District 3, 2/14/17 (not recommended for publication); case activity (including briefs)
A defendant is denied due process at sentencing where the author of his PSI is married to the DA who prosecuted him. State v. Suchocki. Ditto where a counselor who assessed the defendant for his PSI also treated his victim. State v. Stafford. In these situations, bias on the part of the PSI writer or counselor is implied as a matter of law. But here the court of appeals found no “implied bias” where the author of Hartleben’s PSI worked with probation agents who were Hartleben’s victims in an earlier case.
Third time no charm for argument that cops need probable cause to perform FSTs
Village of Ashwaubenon v. Mark J. Bowe, 2016AP594, 2/14/17, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Bowe argues that standard field sobriety tests constitute a 4th Amendment search. Thus, law enforcement needs probable cause, not reasonable suspicion, before asking a suspect to perform them. The court of appeals notes that it has twice rejected this argument based on County of Jefferson v. Renz. It meets the same fate in this appeal.
Circuit court can’t stay order terminating parental rights
State v. D.P.V., 2016AP2037, District 1, 2/14/17 (one-judge decision; ineligible for publication); case activity
A circuit court does not have the authority to stay an order terminating parental rights.
Consent to blood draw was voluntary
State v. Eric M. Doule, 2016AP1146-CR, District 3, 2/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The record supports the conclusion that Doule voluntarily consented to a blood draw after he was arrested for OWI.
Threatening letter sufficient to prove dangerousness to others
Dodge County v. J.T., 2016AP613, District 4, 2/9/17 (one-judge decision; ineligible for publication); case activity
The threats J.T. made in a letter provided sufficient evidence to find him dangerous to others under § 51.30(1)(a)2.b.
DOJ agent’s search of computer at probation officer’s request upheld
State v. Richard L. Keller, 2017 WI App 19; case activity (including briefs)
Richard Keller’s probation rules required, among other things, that he neither possess a computer nor commit any crime. When his agent found computers at his house, she took them to Madison and had a Department of Criminal Investigations analyst examine them. Child porn was found and Keller moved for suppression, which the trial court granted. The court of appeals now reverses.
Juror’s glimpse of defendant chained to others wearing jail garb doesn’t warrant new trial
State v. Anthony Colon, 2016AP1071-CR, 2/7/17, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)
Colon was on trial for 2 felonies and 3 misdemeanors. During a break in deliberations, the bailiff happened to be transporting Colon to the court room. Colon was wearing street clothes, but he was chained to other defendants who were wearing orange jail garb. Upon learning that some of Colon’s jurors may have seen him that way, defense counsel asked the judge to question the jury, but he did not move for a mistrial.