On Point blog, page 191 of 484
Statements on 911 call and to police at the scene admissible under excited utterance exception to hearsay rule
State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)
The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.
Failure to require jury to decide whether conduct qualified for sentence enhancer was error and prejudiced defendant
State v. Lonel L. Johnson, Jr., 2014AP2888-CR, District 3, 9/15/15 (not recommended for publication); case activity
High fives for the defense! The domestic abuse repeater enhancer applied to this defendant increased his maximum penalty for the charged offense. Thus, the court of appeals held (and the State conceded) that the jury had to find, beyond a reasonable doubt, that his underlying conduct qualified as an act of domestic abuse. That’s what Apprendi v. New Jersey, 530 U.S. 466 (2000) requires, but it didn’t happen here. The real win, however, is that for once the State did NOT prevail on its claim of harmless error!!
Challenges to default TPR judgment rejected
State v. T.N., 2014AP2407 & 2014AP2408, District 4, 9/10/15 (one-judge decision; ineligible for publication); case activity
The circuit court properly entered a default judgment against T.N. in his TPR proceeding when, despite the court’s warnings and admonitions, T.N. failed to appear at a scheduled court appearance.
Defendant had no expectation of privacy in text messages he sent to another person
State v. Ryan H. Tentoni, 2015 WI App 77; case activity (including briefs)
Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.
Traffic stop based on failure to signal before turning doesn’t require evidence that failing to signal actually affected other traffic
State v. Manuel Talavera, 2015AP701-CR, District 2, 9/9/15 (one-judge decision; ineligible for publication); case activity (including briefs)
To justify a warrantless traffic stop based on a violation of § 346.34(1)(b), the officer doesn’t need evidence that a driver’s failure to signal before turning his vehicle actually affected other traffic because the statute simply requires motorists to signal turns whenever “other traffic may be affected by the movement.” Thus, evidence that Talavera failed to signal when there was a (police) vehicle following two car lengths behind him was sufficient to justify stopping him.
Finding of incompetence to refuse medication or treatment supported by evidence
Ozaukee County v. C.Y.K., 2015AP1080-FT, District 2, 9/9/15 (one-judge decision; ineligible for publication); case activity
Even though the examining psychiatrist opined that C.Y.K. was not substantially incapable of making an informed choice about accepting or refusing medication or treatment, the record as a whole supported the circuit court’s order for involuntary medication and treatment.
Asking driver for ID after basis for traffic stop has dissipated didn’t unreasonably extend detention
State v. Emiliano Calzadas, 2015AP162-CR, District 4, 9/3/15 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer stopped the vehicle Calzadas was driving because registered owner—who was female—had a suspended driver’s license; but immediately after stopping the car the officer realized Calzadas was male and thus not the registered owner. Even if the reason for the stop dissipated when the officer learned that Calzadas was not the registered owner, the officer’s request for and verification of Calzadas’s identification did not transform what was initially a lawful stop into an unreasonable seizure.
Temporarily handcuffing defendant during execution of search warrant didn’t amount to “custody” for Miranda purposes
State v. Eriberto Valadez, 2014AP2855-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)
Under State v. Goetz, 2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d 386, Valadez wasn’t in custody for Miranda purposes during the execution of a search warrant of his home, so the police questioning of him during that time didn’t have to be preceded by Miranda warnings.
Court of appeals rejects multiple challenges to conviction for failure to pay child support
State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)
Phillips challenges his conviction for failing to pay child support because: (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing. The court of appeals rejects all of Phillips’s claims.
Parent didn’t show her failure to appear at dispostional hearing was excusable neglect justifying reopening of TPR
State v. M.H., 2015AP711, District 1, 9/1/15 (one-judge decision; ineligible for publication); case activity
The circuit court properly exercised its discretion in concluding that M.H. had not shown that her termination of parental rights proceeding should be reopened based on her “excusable neglect” in failing to appear at the dispositional hearing.