On Point blog, page 207 of 484
Conditions for child’s return were sufficiently narrow to satisfy due process
State v. Kiwana L., 2014AP2306, District 1, 1/13/15 (1-judge decision; ineligible for publication); case activity
Kiwana L.’s substantive due process rights were not violated by the conditions set by the circuit court for return of her daughter Jasmine because those conditions were narrowly tailored to address her mental health issues; thus, the termination of her parental rights based on continuing CHIPS grounds under § 48.415(2) was proper.
Evidence sufficient to support conviction for homicide by negligent handling of a weapon
State v. Jonathan Thomas, 2014AP543-CR, District 1, 1/5/15 (not recommended for publication); case activity
At his trial on a charge of second degree reckless homicide for causing the death of Michael Brown, Thomas claimed Brown accidentally shot himself while handling a gun. The jury found Thomas guilty of the lesser included offense of homicide by negligent handling of a dangerous weapon, § 940.08(1). The court of appeals rejects Thomas’s challenge to the sufficiency of the evidence for that verdict.
Violation of no-contact bail condition didn’t require proof defendant directly communicated with subject of no-contact order
State v. Bobbie Tanta Bowen, 2015 WI App 12; case activity
Bowen was found guilty of bail jumping for violating the provision of his bail that he have no contact with F.B., the victim of an earlier battery charge, or F.B.’s residence. The court of appeals holds that the trial evidence—which showed Bowen went into F.B.’s residence but had no direct contact with F.B. while he was inside—was sufficient to support the verdict because the bond condition “that [Bowen] not have contact with F.B.” did not require proof that Bowen directly communicated with F.B.
Police had reasonable suspicion to do a protective sweep of car for weapons; officer’s trial testimony didn’t vouch for another witness
State v. Terrance L. Ware, 2014AP378-CR, District 1, 12/30/14 (not recommended for publication); case activity
The totality of the circumstances surrounding the investigative stop of Ware’s car gave the police reasonable suspicion that Ware or his passenger was dangerous and might have access to a weapon hidden in the car, justifying a protective search of the car for weapons. In addition, a police officer wasn’t vouching for another state’s witness by saying the witness “told the truth” after additional questioning.
Circuit court properly corrected ambiguous oral pronouncement of sentence
State v. Charles A. McIntyre, 2014AP800-CR, District 3, 12/30/14 (1-judge decision; ineligible for publication); case activity
When pronouncing sentence in McIntyre’s case the circuit court repeatedly interchanged “consecutive” and “concurrent” when referring to Count One (of five). (¶¶2-5). Thus, despite the court’s several attempts at clarification during the sentencing hearing, the sentence imposed on that count was ambiguous because it was “undeniably confusing and capable of being understood by reasonably well-informed persons in two different ways.” (¶11). Nonetheless, the court’s intent was clear, so it properly amended the judgment post-sentencing to clarify that Count One was consecutive.
Squad car video doesn’t show trial court’s findings were clearly erroneous
County of Fond du Lac v. Jeffrey K. Krueger, 2014AP1494, District 2, 12/30/14 (1-judge decision; ineligible for publication); case activity
Krueger was stopped by an officer who said Krueger drove his car over the center line. Krueger disputed that and moved to suppress. At the suppression hearing the officer testified and the video from his squad car camera was played. The trial court found the video to be inconclusive and the officer’s testimony to be credible.
Court of appeals reverses order for restitution of property that was unrelated to either a conviction or a read-in charge
State v. Lance F., 2014AP1881-FT, 12/23/14, District 2 (1-judge opinion; ineligible for publication); case activity
A circuit court lacks authority to order a juvenile (who had been found delinquent for battery, disorderly conduct and physical abuse of a child) to make restitution of the victim’s missing property, where he was never charged with theft of the property, he never admitted to stealing the property, and the state did not read in charges relating to theft of the property. The court explained:
Court of appeals reverses “unfitness” finding in TPR case
Winnebago County DHS v. Ashley A.O., 2014AP2404, 12/23/14, District 2 (1-judge opinion, ineligible for publication); case activity
A circuit court may not enter a summary judgment finding a parent unfit during the grounds phases of a TPR proceeding when that finding is based on an order denying the parent physical placement due to his (or her) incarceration.
Warrantless entry to home wasn’t justified under community caretaker rule
State v. Charles V. Matalonis, 2014AP108-CR, District 2/4, 12/23/14 (not recommended for publication), petition for review granted 4/17/15; case activity
The warrantless search of Matalonis’s home, which led to the discovery of marijuana, was not justified under the community caretaker exception to the warrant requirement because there was no reasonable basis to believe there was an injured person in the home.
Unauthorized entry to apartment building’s secure parking garage didn’t violate Fourth Amendment
State v. Brett W. Dumstrey, 2015 WI App 5, petition for review granted 3/16/15, affirmed, 2016 WI 3; case activity
The court of appeals holds that the warrantless, nonconsensual entry by police into Dumstrey’s apartment complex parking garage was not unreasonable because the area was not part of the curtilage of Dumstrey’s home. The court also holds that any trespass by the police didn’t violate the Fourth Amendment because the garage wasn’t a constitutionally protected area. But a dissenting judge concludes prior Wisconsin case law establishes the garage was part of the curtilage and that the police conduct was unreasonable.