On Point blog, page 186 of 485
Passenger’s apparent distress supported stop of car
State v. Tommy K. Miller, 2015AP1211-CR, District 4, 12/23/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The seizure of Miller’s car was justified under the community caretaker doctrine because the officer’s observations led him to believe Miller’s passenger was in distress. Having lawfully seized the car, the officer’s subsequent discoveries gave him reason to ask Miller to perform field sobriety tests (FSTs) and submit to a preliminary breath test (PBT).
Counsel ineffective; failed to challenge credibility in swearing contest
State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)
Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.
Evidence sufficient to prove robbed bank was “chartered”
State v. James Lee Eady, Jr., 2016 WI App 12; case activity (including briefs)
Under the forgiving standard for assessing the sufficiency of evidence, the state managed to introduce enough circumstantial evidence to prove that the bank Eady robbed was “chartered” by a state of the federal government, and therefore was a “financial institution” for purposes of § 943.87.
Making sure fido had a bone was a bona fide community caretaking function
State v. Charles Ray Stewart, 2014AP276-CR, District 1, 12/22/15 (not recommended for publication); case activity (including briefs)
The warrantless search for and seizure of evidence from Stewart’s apartment was lawful because, after Stewart allowed police to enter the apartment and was arrested, the community caretaker doctrine allowed police to remain in the apartment to assure Stewart’s dog was cared for, and the office could seize evidence discovered in plain view.
Blood test admitted, foundation objection unfounded
City of Stevens Point v. Todd P. Beck, 2015AP978, District 4, 12/17/15 (one-judge decision; ineligible for publication); case activity
State law confers automatic admissibility on the results of blood alcohol tests performed in accord with Wis. Stat. § 343.305, but does the plaintiff’s failure to show compliance with that statute render such results inadmissible?
Plea withdrawal and ineffective assistance claims based on sentence credit error rejected
State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity
Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.
No substantive due process violation in TPR
Adams County DHHS v. D.S., 2015AP1937, District 4, 12/10/2015 (one-judge decision; ineligible for publication); case activity
D.S. appeals the termination of her parental rights to her daughter, raising a substantive due process challenge to the jury’s finding of unfitness and contending that the circuit court erroneously found termination to be in the child’s best interest.
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
Defendant not entitled to credit for custody in another case that was considered at sentencing
State v. David Aaron Piggue, Jr., 2016 WI App 13; case activity (including briefs)
Under State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, ¶¶14-18, 25-27, 606 N.W.2d 155, a defendant is entitled to sentence credit for time in custody on charges that are dismissed and read-in for sentencing purposes. The court of appeals declines to extend Floyd to require credit for time the defendant was in custody on a charge for which he was acquitted, even though the acquitted conduct is used by a judge to fashion a sentence for a different crime.
TPR judge adequately considered bond between child and siblings
State v. L.C., 2015AP1460, District 1, 12/4/15 (one-judge decision; ineligible for publication); case activity
The circuit court properly exercised its discretion in terminating L.C.’s rights to her child T.C. because, as required by § 48.426(3)(c) and State v. Margaret H., 2000 WI 42, 26, 234 Wis. 2d 606, 610 N.W.2d 475, the court considered whether T.C. had substantial relationships with his mother and siblings and whether severing those relationships would harm T.C.