On Point blog, page 216 of 485
“Castle doctrine” only applies when the intruder is in your castle
State v. Charles L. Chew, 2014 WI App 116; case activity
In its first decision addressing Wisconsin’s recently adopted “castle doctrine,” § 939.48(1m), the court of appeals holds Chew wasn’t entitled to a self-defense jury instruction under the statute because the men Chew shot at were not “in” his “dwelling.”
Warrant invalidated because primary basis consisted of information the police garthered by trespassing
State v. Jeremiah R. Popp & Christopher A. Thomas, 2014 WI App 100; case activity: Popp; Thomas
The search warrant for the home shared by Popp and Thomas was invalid because the primary basis for the warrant was derived from observations made by police when they trespassed on the defendants’ property and peered into their windows.
Records that support claims defense counsel made at sentencing not enough to merit resentencing or sentence modification
State v. Anthony Herman Williams, 2014AP447-CR & 2014AP448-CR, District 1, 9/30/14 (not recommended for publication); case activity: 2014AP447-CR; 2014AP448-CR
Cell phone records that corroborate a claim Williams’s trial lawyer made at sentencing regarding contact between Williams and the victims don’t show that the sentencing court relied on inaccurate information because the records do little to corroborate the contact or support Williams’s version of events.
Recantation evidence didn’t satisfy newly-discovered evidence test
State v. Landris T. Jines, 2014AP132, District 1, 9/30/14 (not recommended for publication); case activity
The recantations of Bartee, the victim, and Griffin, another state’s witness, don’t satisfy the newly-discovered evidence test because they are not sufficiently corroborated. Nor is there a reasonable probability a different result would be reached in a new trial with the recantation evidence.
Presence of unfamiliar car in driveway of a colleague’s house didn’t provide reasonable suspicion for stop
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.
Weaving within lane justified traffic stop
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.
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.