On Point: 46. WI Court of Appeals

State v. Benjamin P. Lind, 2014AP749-CR, District 3, 9/30/14 (1-judge; ineligible for publication); case activity

Officer’s observation of an unfamiliar vehicle entering the driveway of a home of a local police officer at 1:36 a.m. did not provide reasonable suspicion to conduct an investigatory stop of the vehicle.

City of Tomah v. Steven Seward, 2014AP735, District 4, 9/25/14 (1-judge; ineligible for publication); case activity

Applying State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, the court of appeals holds there was reasonable suspicion to stop Seward based on a police officer’s observations of his weaving within his lane of travel for about one mile at 11:34 p.m.

State v. Adrian A. Starks, 2013AP93, District 4, 9/25/14 (not recommended for publication); case activity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.

State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity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.

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.