On Point blog, page 215 of 484
Newly discovered evidence about police officer’s misconduct not enough to get new trial
State v. Adrian A. Starks, 2013AP93, District 4, 9/25/14 (not recommended for publication); case activity
New information that one of the officers who testified at Starks’s trial violated department policy on dozens of occasions (three of which occurred in Starks’s case) and ultimately resigned after an internal investigation didn’t entitle Starks to a new trial because there isn’t a reasonable probability that a jury considering the new evidence together with the old evidence would reach a different verdict.
Improper closing argument earns prosecutor an OLR referral, but doesn’t get defendant a new trial
State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity
The trial court’s refusal to instruct the jury on the defense of voluntary intoxication and the prosecutor’s improper closing argument were harmless, but the latter is egregious enough to cause the court of appeals to refer the prosecutor to OLR.
Extension of traffic stop was reasonable despite lack of evidence driver had used an intoxicant
State v. Julie A. Bilquist, 2014AP426-CR, District 3, 9/23/14 (1-judge; ineligible for publication); case activity
The totality of the circumstances justified extending Bilquist’s detention to investigate whether she was driving while intoxicated despite the lack of indicia—e.g., odor of an intoxicant; glossy, bloodshot eyes; slurred speech—suggesting she had consumed an intoxicant.
Court of appeals sidesteps constitutionality of “community caretaker preliminary breath test” and decides McNeely issue before SCOW
State v. Walter J. Kugler, 2014AP220, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity
Kugler challenged his first OWI conviction by arguing that the state trooper who stopped him did not have the requisite probable cause and improperly requested, as a community caretaker, that he submit to a PBT (which he refused). The court of appeals reframed the issue as whether the trooper had reasonable suspicion of an OWI when he detained Kugler for field sobriety tests. You can guess the result. The court of appeals also rushed ahead to decide a McNeely issue that the Wisconsin Supreme Court is literally poised to decide.
Prison guard cries over spilled milk; defendant loses IAC claim
State v. Travanti D. Schmidt, 2014AP718-CR, District 4, 9/18/14 (one-judge opinion, ineligible for publication); case activity
And we do mean “spilled milk.” A jury convicted Schmidt, an inmate, of disoderly conduct for spilling milk on a prison guard. Defense counsel did not object to the admission of a videotape showing the incident from a side view, some distance away from Schmidt’s cell. Without the video, there was only the testimony of the guard and Schmidt. The court of appeals held that exclusion of the video wouldn’t have made a difference; the jury would have believed the prison guard anyway.
Analysis of blood drawn without warrant before–but tested after–McNeely held admissible
State v. Andrew J. Kuster, 2014AP109-CR, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity
This seemingly run-of-the-mill OWI appeal has an interesting little wrinkle. The police conducted a warrantless blood draw on Kuster before SCOTUS decided Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552 (2013), but they didn’t have the blood tested until after the decision came out. This sequence of events did not trouble the court of appeals because it views the seizure and subsequent analysis of a person’s blood as a single event.
Prison visitor subjected to custodial interrogation in violation of Miranda, but physical evidence not suppressed
State v. Marie A. Ezell, 2014 WI App 101; case actvity
Prison guards overheard Ezell tell her incarcerated boyfriend that she would smuggle in drugs for him on her next visit. When she tried to follow through, the guards detained her in a conference room, questioned her, and obtained damning evidence. Due to the lack of Miranda warnings, this custodial interrogation violated the 5th Amendment, but the court nevertheless declined to suppress the physical evidence derived from the Miranda violations.
Court of appeals affirms default judgment against parent in TPR proceeding
State v. Samantha J., 2014AP988, 2014AP989, 2014AP1017, District 1, 9/17/14 (1-judge opinion, ineligible for publication); case activity
This case is noteworthy in 2 respects. First, the court of appeals upheld a default judgment as to grounds for terminating a mother’s parental rights–always a significant step, given the stakes. And, second, the court of appeals complimented a brief–specifically, the brief filed by the GAL, Linnea Matthiesen.
Ch. 48 does not require transfer of child custody to a relative after parental rights are terminated
State v. Jevon S. Appeal Nos. 2014AP1426 & 2014AP1427; State v. Latoya M., Appeal Nos. 2014AP1424 & 2014AP1425, District 1, 9/16/14 (one-judge opinions, ineligible for publication); (case activity for Jevon S.; case activity for Latoya M.)
Jevon S. and Latoya M. appealed orders terminating their parental rights. Neither contested the grounds for termination, but at their joint dispositional hearing they both wanted their two children removed from their separate foster homes and placed with Jevon’s mother. The circuit court ruled against them, and the court of appeals affirmed.
Court scolds State for shoddy advocacy, holds alleged “stop” was actually an arrest without probable cause
State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.