On Point: 46. WI Court of Appeals

State v. J.J., 2016AP194 & 2016AP195, 4/12/2016, District 1 (one-judge decision; ineligible for publication); case activity

J.J., the father, appeals the termination of his rights to his two children, J.J. and A.J., challenging not the finding of unfitness but only the court’s determination that termination was in the best interest of each child.

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.

State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).

This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.

State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)

The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.

State v. Tyler Q. Hayes,  2015AP314-CR, and State v. Tanner J. Crisp, 2015AP315-CR, 4/6/2016, District 2 (not recommended for publication); case activity (including briefs)

A sheriff’s deputy, noticing a car parked outside the lines in a parking lot, pulled behind the car, walked up to the driver’s door, and perhaps (the testimony is not clear) asked that the window be rolled down. However the window came to be open, the deputy smelled marijuana and you know the rest. So were the vehicle’s occupants seized when the deputy asked them to roll down the window and they complied?

State v. Henry J. Bloedorn, 2015AP953-CR, 4/6/2016, District 2 (not recommended for publication); case activity (including briefs)

Henry Bloedorn brought three ineffective assistance claims regarding the attorney who represented him during his plea and sentencing. That attorney’s unchallenged testimony at the Machner hearing convinced the circuit court, and now the court of appeals, that his performance gave no cause for complaint.

State v. Lazeric R. Maxey, 2015AP2137-CR, 4/6/16, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Maxey isn’t entitled to credit on time he spent in custody relating to two cases for which he’s serving consecutive sentences because he hasn’t shown the credit wasn’t given on the earlier-imposed sentence.

Marquette County v. T.F.W., 2015AP2603-FT, 3/24/16, District 4 (one-judge decision; ineligible for publication); case activity

At T.F.W.’s ch. 51 extension hearing, one of the examining physicians was asked “have the advantages, disadvantages and alternatives to [T.F.W.’s] medication been explained to [him]?” Her answer: “Yes, they have.” (¶7). That was the extent of the testimony on the matter, but the court of appeals holds it was good enough to satisfy the requirement of § 51.61(1)(g)4.(intro.) and Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607.

State v. Jeffrey C. Denny, 2016 WI App 27, petition for review granted 6/15/16, overruled, 2017 WI 17; case activity (including briefs)

If you are thinking about filing a motion under § 974.07 or are in the middle of litigating such a motion, you’ll want to read this decision. The court of appeals holds Denny is entitled to DNA testing of certain evidence because he showed that the items he sought to test are “relevant to the investigation or prosecution that resulted in [his] conviction….” The court also holds he is entitled to testing at public expense because it is reasonably probable he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction.

State v. John Steven Duewell, 2015AP43-44-CR, 3/23/16, District 1 (not recommended for publication); case activity (including briefs)

In a decision that seems to conflict directly with State v. Torbeck, 2012 WI App 106, 344 Wis. 2d 299, 821 N.W.2d 414, see our post here, the court of appeals holds that carburetor cleaner is an intoxicant under Wisconsin’s OWI statute, Wis. Stat. §346.63(1)(a)(2011-2012).