On Point: 46. WI Court of Appeals

State v. Viliunas, 2012AP2284-CR, District 2, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity

State’s destruction of video from police car’s dashboard camera did not violate OWI defendant’s due process rights. The defendant, who was found in the driver’s seat of a ditched car, claimed another person had been driving—although not until his jury trial, which occurred over a year after the incident, and after Viliunas had missed two earlier trial dates.

State v. Angie A., 2012AP2240, District 1, 2/20/13; court of appeals decision (1-judge, ineligible for publication); case activity

The state properly brought TPR petition alleging grounds under Wis. Stat. § 48.415(2) (continuing need of protection and services) and § 48.416(6) (failure to assume parental responsibility) instead of § 48.415(3) (continuing parental disability, a ground that specifically targets parents with a mental illness or developmental disability), because the state could and did make a reasonable effort to provide Angie A.

Pierce County v. Troy H., 2012AP2525 and 2012AP2526, District 3, 2/19/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court termination decision was the result of an erroneous exercise of discretion because the court failed to consider the statutory factors:

¶8        Troy asserts the circuit court erroneously exercised its discretion because the record shows that the court did not consider any of the Wis.

State v. La’Drea L., 2012AP1984 and State v. Ricky B., 2012AP2027, District 1, 2/20/13; consolidated court of appeals decision (1-judge, ineligible for publication); case activity: LaDrea L.; Ricky B.

The circuit court properly exercised its discretion when it determined termination was in the children’s best interests because it considered all of the statutory factors under Wis. Stat. § 48.426(3). The circuit court “did not say the precise words” of,

State v. Willie M. McDougle, 2013 WI App 43; case activity

Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist

Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:

¶17      …[T]rial counsel’s decision not to object to Dr.

State v. Jesus C. Villarreal, 2013 WI App 33; case activity

Trial counsel was ineffective because he had an actual conflict of interest arising from his dual representation of both Villareal and a defense witness who had testified at Villarreal’s first trial (which ended in a hung jury ) and who, before the second trial, was accused of committing perjury during the first trial.

The witness was Villarreal’s sister,

State v. Derik J. Wantland, 2013 WI App 36, petition for review granted 11/21/13; case activity

It was not unreasonable for the police to search a briefcase found in a vehicle during a traffic stop after the driver consented to a search of the car and the passenger did not unequivocally assert ownership of the briefcase and withhold consent to its search.

State v. Scott B. Bohlinger, 2013 WI App 39; case activity

Bohlinger made a prima facie showing that two prior OWI convictions were invalid because he did not knowingly and intelligently waive the right to counsel due to his limited cognitive capabilities. The circuit court concluded he had not made such a showing because he did not allege any deficiency in the colloquies addressing the waiver of counsel in the earlier cases.

State v. Wyatt D. Henning, 2013 WI App 15; case activity

The crime of attempted possession of a firearm by a felon is recognized in Wisconsin, distinguishing State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998):

¶14      Turning to the particular language of the felon in possession of a firearm statute, and the case law further explaining the elements of that crime,

State v. Jacob Turner, 2013 WI App 23;  case activity

Addressing an unusual set of facts, the court of appeals holds Turner’s constitutional rights to an impartial jury and due process were not violated by the seating of a juror who had not been summoned for service and who did not disclose that to the court.

A summons for jury duty was sent to “John P.