On Point blog, page 162 of 485
Extension of initial seizure justified by totality of circumstances
State v. Joshua D. Winberg, 2016AP108-CR, District 3, 1/10/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The police had reasonable suspicion to extend a traffic stop to investigate whether the driver was operating under the influence.
Defense win: possible driver lacking Wisconsin license not reasonable suspicion
State v. Brittanie Jo Palaia, 2016AP467-CR, 12/30/17, District 3 (1-judge decision; ineligible for publication); case history (including briefs)
Here we have the latest twist on State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, which held that an officer who knows only that a moving vehicle is registered to a person with a revoked license has reasonable suspicion for a stop.
State presented sufficient evidence to corroborate juvenile’s confession
State v. J.F.K., 2016AP941, District 3, 12/28/16 (1-judge opinion, ineligible for publication); case activity
Fifteen-year-old J.F.K. confessed to having sex twice with his 17-year-old ex-girlfriend. At the delinquency hearing, the State (1) played his video confession, (2) offered the testimony of a detective who said that police had referred the girlfriend to be charged for having sex with J.F.K., and (3) a JOC showing that the ex-girlfriend had pled guilty to 4th degree sexual assault but, of course, did not name the victim.
Counsel’s failure to object to hearsay and opinion evidence was not ineffective
State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)
B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.
Wide turn into left-hand lane, slow speed among factors justifying stop
City of Eau Claire v. David Eugene Phelps, 2016AP248, District 3, 12/28/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Contrary to the circuit court’s conclusion, a police officer’s observations about Phelps’s driving provided more than a “hunch” and justified the stop of his car.
Defense win: TPR order reversed because it was based on circuit court’s mistake about its authority
T.M.H. v. A.N.W., 2016AP1981, District 4, 12/29/16 (one-judge decision; ineligible for publication); case activity
The biological father of J.H. petitioned to terminate the parental rights of the biological mother, A.W. The circuit court granted the petition, but only after concluding it could order continued visitation between J.H. and his maternal great-grandmother, with whom J.H. had an important relationship. It turns out the circuit court did not have that authority. Because the circuit court said it “absolutely, positively” would not terminate A.W.’s rights unless it could order continued visitation by the great-grandmother, the termination order is reversed.
Community caretaking justified contact with man sleeping or passed out in car
State v. John D. Myer, 2016AP490-CR, District 4, 12/22/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Assuming a police officer’s contact with Myer constituted a seizure, it was justified under the community caretaker doctrine.
Right to be present at trial waived
State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)
Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.
WEAJA doesn’t cover forfeiture action brought by the State instead of a state agency
State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)
The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”
Summary judgment in TPR case affirmed
Jefferson County DHS v. C.C., 2016AP1983, District 4, 12/21/16 (one-judge decision; ineligible for publication); case activity
The circuit court properly granted summary judgment on the petition terminating C.C.’s parental rights despite C.C.’s claims that the circuit court violated the mandatory notice provision under § 802.08(2) and that a genuine issue of material fact exists on the issue of grounds for termination.