On Point: 46. WI Court of Appeals

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.

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.

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.

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.

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.

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.

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.

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.

State v. Joseph T. Trepanier, 2014 WI App 105; case activity

This case presents an issue of first impression: Whether a defendant is entitled to sentence credit for time spent in presentence custody for a burglary when he was also in custody pursuant to an unrelated civil commitment for contempt of court.  The State, naturally, opposed dual sentence credit. But the winner is . . . the defendant!

State v. Jimmie Lee Smith, 2014 WI App 98, petition for review granted 6/12/15; case activity

If you’re working on a competency issue, read this decision.  Neither the trial court nor defense counsel raised the subject of Smith’s competency at the time of trial.  And Smith had not received a pre-trial competency exam. That’s why the postconviction court rejected Smith’s claim that he was incompetent at the time of trial. There was no contemporaneous evidence to support it. The court of appeals reversed, vacated the conviction, and remanded the case for a new trial.