On Point blog, page 204 of 485
Prostitute has “reasonable expectation of privacy” too
State v. Charles W. Adams, 2015 WI App 34; click here for docket and briefs.
§ 942.09(2)(am)1 prohibits recording someone in the nude, without the person’s consent, in circumstances where the person had a reasonable expectation of privacy, and where the recorder had reason to know that the nude person did not consent to the recording. This case holds that the statute protects a prostitute who is videotaped nude during commercial sexual activity.
Evidence was sufficient to support ch. 51 medication order
Winnebago County v. Brian C., 2014AP2792-FT, District 2, 3/11/15 (one-judge decision; ineligible for publication); case activity
The record supports the trial court’s finding that the County met its burden of proving Brian was incompetent to refuse medication under § 51.61(1)(g)4(intro) and b.
Improperly admitted identification evidence doesn’t merit new trial
State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)
A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.
Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation
State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)
In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.
“I was out of town at time of the crime” is an alibi, not a “simple defense”
State v. Derek J. Copeland, 2014AP929-CR, 3/5/15, District 4 (not recommended for publication); click here for docket and briefs
This case explores the line between a between a “simple defense” defined as “I was last at the scene of the crime on a date that preceded the crime” versus an “alibi” defense defined as “I was at a different location and unable to get to the scene of the crime on the date it occurred.”
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Homicide conviction affirmed based on harmless error
State v. Eduardo Ivanez, 2013AP1901-CR, 2/26/15, District 1 (not recommended for publication); click here for briefs
Ivanez appealed his conviction for 1st-degree intentional homicide and hiding a corpse on the grounds that statements he made to the police should have been suppressed and the admission of those statements impelled him to testify that he killed the victim in self-defense, a dubious trial strategy. The court of appeals assumed, without deciding, that the trial court had erred but affirmed under the harmless error doctrine.
Leaving messages with foster parents does not qualify as “communicating with a child” under TPR statute
Dane County DHS v. Hershula B., 2014AP2076, 2/26/15, District 4 (one-judge opinion, ineligible for publication); click here for docket
Hershula appealed an order terminating her parental rights. She argued that the trial court erred in directing a verdict on the abandonment issue because she presented evidence that she had communicated indirectly with her child. The court of appeals held that the phrase “communicate with the child” requires that the child share in the action of communicating with the parent. Slip op. ¶22. Indirect communications don’t count.
Officer’s statement about authority to search car didn’t taint driver’s consent to search of his person
State v. David M. Wagner, 2014AP842-CR, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Wagner voluntarily consented to a search of his person, and was not merely “[a]cquiesc[ing] to an unlawful assertion of police authority,” State v. Johnson, 2007 WI 32, 16, 299 Wis. 2d 675, 729 N.W.2d 182, when he agreed to the search on the heels of the officer’s assertion of authority to search Wagner’s car.
“Statutes need to be complied with,” and failure to comply with § 55.10(2) deprived circuit court of competency to proceed
Sheboygan County v. Christopher A.G., 2014AP2489, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity
The circuit court erred in holding a due process hearing on Christopher’s protective placement without Christopher’s physical presence and without the guardian ad litem (GAL) waiving his attendance in writing prior to the hearing as required by § 55.10(2) and Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450.