On Point blog, page 227 of 485
Good-faith exception to exclusionary rule means evidence from unlawful use of GPS device can be admitted
State v. Scott E. Oberst, 2014 WI App 58; case activity
The good faith exception to the exclusionary rule applies to evidence obtained during a period when binding Wisconsin appellate precedent permitted the warrantless installation of a global positioning system (GPS) device. Thus, even though the installation of the GPS device on the defendant’s vehicle was unconstitutional under United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), exclusion of the evidence obtained from the device is an inappropriate remedy.
Circuit court can’t order condition of supervision that restricts operating privileges in excess of the period set under § 343.30
State v. Jack E. Hoppe, 2014 WI App 51; case activity
A sentencing court may not prohibit a defendant convicted of OWI from driving a motor vehicle as a condition of extended supervision when the length of extended supervision exceeds the maximum period for revoking operating privileges set by § 343.30.
Circuit court properly denied plea withdrawal after it found witness recantations to be incredible and uncorroborated
State v. John Francis Ferguson, 2014 WI App 48; case activity
The circuit court did not erroneously exercise its discretion in denying Ferguson’s plea withdrawal motion, which was based on recantations by two witnesses who had previously said Ferguson fatally shot a man. The circuit judge applied the proper standard under State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), when it found the recantations were incredible as a matter of law and uncorroborated by other newly-discovered evidence, and its findings are not clearly erroneous.
Evidence that defendant asked victim to lie and choked her admitted as “other acts” evidence
State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity
The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.
Restitution award upheld despite evidence of inflated repair estimates
State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity
What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates. Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award. The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”
Pre-McNeely blood test results deemed admissible under good-faith exception to exclusionary rule
State v. Neil A. Morton, 2013AP2366-CR, District 4, 4/17/14 (1-judge; ineligible for publication); case activity
This is another OWI case holding that a warrantless blood draw that would now be unlawful under Missouri v. McNeely is admissible under the good-faith exception to the exclusionary rule.
Evidence of victim’s violent character excluded; evidence of defendant’s other violent acts admitted
State v. Brian J. Anderson, 2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity
Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.
Correct information about sentence credit constitutes a “new factor”
State v. Dennis R. Armstrong, 2014 WI App 59; case activity
The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:
¶13 At the sentencing hearing,
Trial counsel’s exchange with trial court about a misstatment of fact in a suppression motion didn’t create conflict of interest or establish judicial bias
State v. Marcos Ordonia-Roman, 2012AP1371-CR, District 1/4, 4/10/14; court of appeals decision (not recommended for publication); case activity
In a motion to suppress Ordonia-Roman’s confession, trial counsel alleged that during his interrogation Ordonia-Roman was without a required medication and was not allowed to take the medication. At the suppression hearing, however, Ordonia-Roman testified he had been prescribed the medication,
General summons statute for ch. 48 doesn’t provide basis for grandparents to intervene in CHIPS proceeding
Renee B. v. Dane County DHS, 2013AP2273, District 4, 4/10/14; court of appeals decision (1-judge; ineligible for publication); case activity
A circuit court’s decision to give grandparents notices of CHIPS hearings under the ch. 48 summons statute, § 48.27(2), doesn’t mean the grandparents have the right to intervene in the proceeding. While David S. v. Laura S., 179 Wis.