On Point: 46. WI Court of Appeals

City of Portage v. Kenneth D. Cogdill, 2014AP1492, District 4, 11/20/14 (1-judge decision; ineligible for publication); case activity

Police had probable cause to believe Cogdill had been operating a motor vehicle while under the influence of an intoxicant based on the statements of witnesses, the officers’ own observations, and Cogdill’s statements.

State v. Fernando Moreno-Acosta, 2014 WI App 122; case activity

While § 943.201(2) requires the state to prove the defendant used personal identifying information belonging to an actual person, it need not prove that the defendant knew the information belonged to another “real, actual person.”

State v. Jennifer M. Parisi, 2014 WI App 129; case activity

The warrantless entry into Parisi’s apartment was lawful because police had probable cause to believe the apartment contained evidence of a crime and there were exigent circumstances justifying entry without a warrant.

State v. Stephanie M. Przytarski, 2014AP1019-CR, District 1, 11/18/14 (1-judge decision; ineligible for publication); case activity

Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.

State v. David M. Carlson, 2014 WI App 124; case activity

Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients.  Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.

State v. Kelly M. Rindfleisch, 2014 WI App 121; case activity

Just how “particular” must a warrant to search a Gmail and Yahoo! Mail be in order to survive the Fourth Amendment’s “particularity” requirement? And does the answer change when the warrant is for searching the email accounts of someone other than the person suspected of the crime described in the warrant? In this split opinion the majority upheld broad search warrants requiring Google and Yahoo to turn over email expected to show that one former Walker aide had committed a crime, but which showed that the account owner (another former Walker aide) had also committed a crime.

Tina B. v. Richard H., 2014 WI App 123; case activity

The circuit court lost competency to decide a guardianship proceeding under § 54.34 because it failed to decide the case within the statutory time limit, but the circuit court’s decisions in a related guardianship proceeding under § 48.977 are affirmed.

Nicole Marie Thomas v. Korry Ardell, 2014AP295, District 4, 11/13/14 (not recommended for publication); case activity

The circuit court did not erroneously exercise its discretion in refusing to admit cell phone records because the proponent of the evidence didn’t provide a proper foundation by presenting either the testimony of a qualified witness or a proper certification proving authenticity.

State v. Michael C. Hess, 2014AP268-CR, District 3, 11/11/14 (not recommended for publication); case activity

While the trial evidence was sufficient to support the jury’s verdict that Hess possessed methamphetamine, Hess is entitled to a new trial in the interest of justice because the verdict may have been influenced by evidence offered to proved drugged-driving charges that were dismissed during trial.

State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity

The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.