On Point blog, page 207 of 485
Once again, a McNeely-based challenge to a blood draw falls to the good-faith exception
State v. Tyler M. Pasch, 2014AP1193-CR, District 3, 2/3/15 (1-judge decision; ineligible for publication); case activity (including briefs)
Another day, another decision holding the good-faith exception to the exclusionary rule applies to blood drawn without a warrant or exigent circumstances because the blood draw happened before Missouri v. McNeely, 133 S. Ct. 1552 (2013), effectively overruled State v. Bohling,
Defendant forfeited right to counsel of choice; failed to show deficient performance
State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs
A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.
Trial court is free to make suggestions and lecture defendant during plea baragaining
State v. Lavonte M. Price, 2014AP1189-CR, District 1, 2/13/15 (not recommended for publication); click here for briefs
This decision examines the line between a trial court’s active participation in the plea negotiation process, which Wisconsin law prohibits, and trial court’s comments, suggestions and lectures, which are permitted under Wisconsin law. What the trial court did here was just fine, said the court of appeals.
Administrative rule requiring permits for events in state buildings regardless of group size violates First Amendment
State v. Michael W. Crute, 2015 WI App 15; case activity
An administrative rule (§ Adm 2.14(2)(vm)(intro.) and 5.) requires a permit for any rally, meeting, or similar event held in a state building, and persons participating in an unpermitted event can be ticketed for “unlawful assembly.” But the rule did not contain a minimum group size, so it covered unpermitted events undertaken by as few as one person. The court of appeals holds the rule is not a valid time, place, and manner regulation under the First Amendment because it was not narrowly tailored to serve a substantial governmental interest. It also rejects the state’s attempt to save the rule by construing it to apply only to groups over 20 persons.
Termination of dominatrix’s parental rights upheld despite jury instruction error
State . Michelle M., 2014ap1539, District 1; 1/27/15 (one-judge opinion; ineligible for publication); case activity
In this TPR case, a circuit court instructed a jury using the version of WIS JI-Children 346 that allows consideration of whether a mother has exposed her child to a hazardous living environment. The court should have given the prior version, which did not mention this consideration. According to the court of appeals, the jury could consider the point whether the instruction explicitly mentioned it or not.
No error in limiting cross examination and rejecting offer of proof about FSTs at refusal hearing
State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity
The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).
Warrantless entry allowed where police pounding on front door sparks shuffling sounds
State v. Andre Bridges, 2013AP350-CR, district 2; 1/27/15 (not recommended for publication); case activity
If any doubt remained, rest assured that if police have probable cause to believe there are drugs in your apartment, pound on your door, yell “Milwaukee police” and then hear sounds of movement, they may bust down your door and conduct a “protective sweep.”
Evidence sufficient to establish “pattern” and prove dangerousness under § 51.20(1)(a)2.c.
Outagamie County v. Lori D., 2014AP1911, District 3, 1/27/15 (1-judge decision; ineligible for publication); case activity
There was sufficient evidence to commit Lori under § 51.20(1)(a)2.c. because her behavior over one night showed a “pattern of recent acts or omissions” that evidenced impaired judgment and because the lack of services available in the community established a “substantial probability of physical impairment or injury” to Lori if she wasn’t committed.
Court of appeals rejects multiple-issue challenge to child pornography conviction
State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity
The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.
Charging under superseded statute was “technical error” that didn’t prejudice defendant
State v. Robert J. Tisland, 2012AP1570-CR, District 4, 1/22/15 (not recommended for publication); case activity
Even if two legislative acts made inconsistent changes to a criminal statute and meant the changes made by the earlier act were superseded by the later one, a charge filed under the provisions of the superseded act was not, under the circumstances of this case, a charge for a crime unknown to law that deprived the circuit court of jurisdiction or competency; instead, it was a technical charging error that didn’t prejudice the defendant.