On Point blog, page 200 of 484
Challenge to sufficiency of the evidence is frivolous; sanctions ordered
Village of DeForest v. Michael Brault, 2014AP2398, District 4, 4/16/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Brault’s challenge to the sufficiency of the evidence for his conviction for OWI 1st is frivolous, so sanctions under Rule 809.25(3) are appropriate.
Failure to adequately allege prejudice is fatal to ineffective assistance claim
State v. Frank D. Roseti, 2014AP2299-CR, District 2, 4/15/15 (one-judge decision; ineligible for publication); case activity (including briefs)
A claim that trial counsel was ineffective for failing to object to an alleged discovery violation falls short because the defendant does not develop an argument as to why an objection would have prevailed.
Trial counsel found ineffective; promised defendant would testify, told jury about defendant’s sordid past, failed to elicit impeachment evidence
State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)
Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.
Telephonic warrant for OWI blood draw satisfied § 968.12(3)
State v. Roberto F. Orozco-Angulo, 2014AP1744-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The procedure used to obtain a telephonic search warrant for a blood draw following Orozco-Angulo’s arrest for OWI and his refusal to submit to a blood test complied with the requirements of § 968.12(3) and therefore suppression of the evidence was not appropriate.
Evidence was sufficient to convict defendant for attempted “upskirting”
State v. Jesse L. Schmucker, 2014AP165-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The evidence was sufficient to sustain the jury’s finding of guilt of an attempt to violate § 942.09(2)(am)1., which criminalizes capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in circumstances where that person had a reasonable expectation of privacy, even though the victim was not nude and the offense occurred while the victim was in the check-out line at a grocery store.
Any denial of the right to testify in responsibility phase of NGI trial was harmless
State v. James Elvin Lagrone, 2013AP1424-CR, District 1, 4/7/15 (not recommended for publication), petition for review granted 9/9/15; affirmed 2016 WI 26; case activity (including briefs)
Does a defendant who has raised an NGI defense have the right to testify in the mental responsibility phase of the NGI proceeding? That’s the novel issue in this case. But the court of appeals doesn’t decide the question. Instead, the court ignores relevant binding case law and, relying on a case that doesn’t apply, concludes that if Lagrone had the right to testify, any error in denying it was harmless.
Collateral attack on priors rebuffed due to lack of prima facie showing that right to counsel was violated in prior proceedings
State v. Sherwood A. Lebo, 2014AP730-CR, District 3, 4/7/15 (not recommended for publication); case activity (including briefs)
Lebo failed to make a prima facie showing that his right to counsel was violated in two prior OWI proceedings because he didn’t point to specific facts demonstrating that he did not know or understand information that should have been provided during the waiver of counsel colloquy, as required by State v. Ernst, 2005 WI 107, ¶¶25-26, 283 Wis. 2d 300, 699 N.W.2d 92.
Evidence supported conviction for negligent handling of burning material
State v. Nathan M. Caffero, 14AP1711-CR, District 3, 4/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Despite the trial testimony of Muxlow, Caffero’s girlfriend, that she was the person who caused the fire in their apartment by putting lit incense on top of a toilet paper roll, Caffero’s own admissions to the police gave the jury a basis to infer he subsequently handled the smoldering roll and that he did so negligently. Therefore, the evidence is sufficient to support his conviction for violating § 941.10.
Cout of Appeals certifies constitutional challenge to Chapter 51 provision
Winnebago County v. Christopher S., 2014AP1048, 4/1/15, District 2, click here for certification; certification granted 5/12/15, circuit court orders affirmed, 2016 WI 1
Issue
This appeal raises an important issue of first impression regarding the constitutionality of a mental health treatment statute related to inmates within the Wisconsin state prison system. The question presented is whether Wis. Stat. § 51.20(1)(ar) (2013-14) is facially unconstitutional on substantive due process grounds because it does not require that a court find an inmate dangerous prior to ordering the inmate civilly committed for treatment and authorizing the involuntary medication of the inmate. A definitive answer to this question from the Wisconsin Supreme Court, along with a clear statement as to the appropriate level of constitutional scrutiny to apply in such a case, would be of great value to the bench, the bar, the legislature, and the citizenry. Thus, we certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61.
Continuation of Chapter 55 commitment upheld despite defects in special verdict and instructions
Sheboygan County v. Terry L.M., 2014AP2010, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket
The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.