On Point blog, page 174 of 485
House’s front porch is a “public place”
State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)
Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm.
Court of Appeals rejects constitutional challenges to juvenile’s life sentence
State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)
Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).
Failure to investigate confessing co-defendant was not deficient performance
State v. David L. Vickers, 2015AP1631-CR, 6/22/16, District 2 (not recommended for publication); case activity, including briefs
Vickers, who was convicted of misdemeanor bail jumping and retail theft of a wireless router, filed a §974.06 motion claiming ineffective assistance of counsel because his trial lawyer failed to move for suppression of stolen property found in his car and failed to investigate or call as a witness a co-defendant who later confessed to the theft. The court of appeals here affirms the convcition.
Defense win: State failed to meet burden at Kastigar hearing
State v. Karl L. Quigley, 2016 WI App 53; case activity (including briefs)
Karl Quigley confessed to sex offenses during an interrogation by a police detective, and later confessed to additional offenses while being questioned by his probation officer. The court of appeals rejects his Miranda challenge to his initial confession, but agrees that the state failed to show that evidence obtained after the statement to the P.O. was “derived from a legitimate source wholly independent of” that statement, as required by Kastigar v. United States, 406 U.S. 441 (1972). Because Quigley’s plea bargain incorporated charges from both sets of offenses, the court remands for plea withdrawal.
Evidence was sufficient to justify involuntary medication order
Winnebago County v. M.O.S., 2015AP2619, District 2, 6/15/16 (one-judge decision; ineligible for publication); case activity
The circuit court’s oral findings at the conclusion of M.O.S.’s trial didn’t track the statutory language in either § 51.61(1)(g)4.a. or 4.b., but no matter: On the standard involuntary medication order form the court checked the box corresponding to the standard under subdivision 4.b. (¶¶4, 7), and the evidence presented at trial is sufficient to support an order under that standard, despite M.O.S’s partial understanding that his delusions are caused by mental illness.
State barred from amending OWI charge from felony to misdemeanor
State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)
This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.
Marijuana smell alone not exigency for warrantless home search
State v. Julie C. Phillips, 2015AP927-CR, 6/14/16, District III (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects the state’s attempt to parlay a single fact–a strong smell of unburned marijuana emanating from a house–into exigent circumstances justifying a warrantless search.
Failure to object precludes Daubert analysis; expert on cell phone tracking per se admissible
State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)
This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.
IAC claims not raised in first appeal can’t be revived on remand
State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)
Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.
“Supporting” documents actually undermined OWI collateral attack
State v. Jason S. Witte, 2015AP795-CR, 5/26/16, District IV (one-judge decision; ineligible for publication); case activity (including briefs)
Witte, charged with OWI-4th, attacked a 2004 prior, alleging that did not have, and did not validly waive, counsel. The circuit court concluded that Witte’s affidavit and the documents from the 2004 proceeding did not make out a prima facie case that Witte was denied counsel, and the court of appeals now agrees.