On Point blog, page 40 of 484
December 2022 publication order
On December 21, 2022, the court of appeals ordered the publication of the following criminal law related decisions:
Defendant failed to make timely jury demand in OWI 1st case
Washington County v. Justin David Dettmering, 2022AP941, District 2, 12/21/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Dettmering didn’t demand a jury within the time indicated on the citation he was issued for OWI 1st, but he later claimed he should get a jury because he wasn’t advised of his right to a jury at his first court appearance as required by § 345.34(1). The court of appeals rejects his claim.
Waiver of juvenile court jurisdiction affirmed
State v. C.W.P., 2022AP1240 & 2022AP1317, District 2, 12/14/22 (one-judge decision; ineligible for publication); case activity (2022AP1240; 2022AP1317)
The state filed two juvenile delinquency petitions regarding C.W.P. and petitioned for waiver of juvenile jurisdiction in both cases. The circuit court held joint waiver hearings after which it granted waiver. The court of appeals rejects C.W.P.’s challenges to the circuit court’s decision.
COA says open container, odor of intoxicants, possession of weed were reasonable suspicion for OWI investigation
State v. Nicholas A. Conger, 2022AP844, 12/14/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
A cop stopped Conger’s vehicle for a broken high-mounted stop lamp. On approaching the vehicle, the officer would testify, he smelled intoxicants. He asked Conger what he was smelling, to which Conger replied “Probably the pot.” Conger then turned over a small amount of cannabis and an open can of Mike’s Hard Lemonade to the officer. He also said he’d had some alcohol. The officer asked Conger to perform field sobriety tests; Conger agreed and was ultimately arrested for, charged with, and convicted of operating with a detectable amount of a restricted controlled substance in his blood.
COA affirms 5th standard recommitment despite “sparse” record
Winnebago County v. C.L.S., 2022AP1155-FT, 12/14/22, District 2, (1-judge opinion, ineligible for publication); case activity
C.L.S. sought reversal of his recommitment under §51.20(1)(a)2.e arguing that the county’s evidence of dangerousness was insufficient, and the circuit court failed to make the findings required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. The court of appeals rejected both arguments. But if its description of the examiner’s testimony is accurate, C.L.S. should have, at the very least, won on insufficient evidence.
Pretrial delay did not violate defendant’s right to speedy trial
State v. Benjamin G. Churley, 2022AP189-CR, District 4, 12/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)
The 35-month delay in Churley’s case did not violate his constitutional right to a speedy trial.
Court needn’t reference statute when ruling on “best interest of the child” factors
State v. A.H., 2022AP1454, 12/6/22, District 1, (1-judge opinion; ineligible for publication); case activity
The sole issue in this TPR appeal is whether the circuit court failed to consider the “best interests” of D.H.’s daughter. D.H. noted that the circuit court’s oral decision “wholly omits consideration of and reference to the best interest factor.” Opinion, ¶13. That argument failed because the circuit court is not required to “utter any magic words” when performing its “best interests” analysis. Opinion, ¶16 (citing State v. Robert K., 2005 WI 152, ¶33, 286 Wis. 2d 143, 706 N.W.2d 257).
COA holds jury panel selected by first letter of last names was “random”
State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity
C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.
Defense win! Subject has right to be physically present at guardianship and protective placement hearings
Racine County v. P.B., 2022 WI App 62; case activity
Section 54.42(5) and 55.10(4) give a person undergoing guardianship and protective placement the “right to be present” a the final hearing. Sections 54.44(4)(a) and 55.10(2) further require the county to ensure that the person “attends” the final hearing, unless the GAL waives attendance. In a published decision, the court of appeals holds that these statutes protect the person’s right to be physically present. Attendance by phone or video under §§885.58 and 885.60 does not suffice.
Prosecutor didn’t vouch for recanting witnesses
State v. Cartrell Romel Kimble, 2021AP1227-CR, Distirct 1, 11/29/22 (not recommended for publication); case activity (including briefs)
The prosecutor’s closing argument didn’t amount to “vouching” for the credibility of the pretrial statements of two recanting witnesses.