On Point blog, page 73 of 485
Police had basis to conduct FSTs and ask for PBT
Village of Grafton v. Elizabeth A. Wesela, 2020AP1416, District 2, 4/7/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Wesela concedes police had reaonsable suspicion to make the initial stop of the car she was driving, but complains, fruitlessly, that the officer didn’t have reasonable suspicion to extend the stop to conduct field sobriety tests or to ask for preliminary breath test.
Circuit court properly exercised discretion in terminating parental rights
State v. V.S., 2021AP136, District 1, 4/6/21 (one-judge decision; ineligible for publication); case activity
The record shows the circuit court considered all of the § 48.426(3) factors relevant to determining the best interests of the child and properly applied them to the facts in deciding whether to terminate V.S.’s parental rights to D.D.S.
Cop can testify as human trafficking expert
State v. Markell Hogan, 2021 WI App 24; case activity (including briefs)
A police officer who has experience investigating human trafficking cases and who has training from various prosecutorial and law enforcement conferences about the methods traffickers use may testify as an expert under §907.02 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
March 2021 publication list
On March 31, 2021, the court of appeals ordered the publication of the following criminal law related opinions:
Court of Appeals asks SCOW to review meaning of “misdemeanor crime of domestic violence” under concealed carry license law
Daniel Doubek v. Joshua Kaul, 2020AP704, 3/31/21, District 2, certification granted 6/16/21; decision issued, circuit court reversed, 2022 WI 31; case activity (including briefs)
Issue:
Are Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, and Leonard v. State, 2015 WI App 57, 364 Wis. 2d 491, 868 N.W.2d 186, “good law” in light of the United States Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014)?
Court applied incorrect burden of proof in denying return of property motion
Village of Greendale v. Matthew R. Derzay, 2019AP2294, District 1, 3/30/31 (not recommended for publication); case activity (including briefs)
The burden of proof for a petitioner under § 968.20 is preponderance of the evidence, but the circuit court applied the clear and convincing standard and demanded Derzay provide certain kinds of proof to meet that burden. This was error.
Psychologist’s testimony was relevant to issues at TPR disposition phase
Jackson County DHS v. M.M.B., 2021AP98 & 2021AP99, District 4, 4/1/21 (one-judge decision; ineligible for publication); case activity
M.M.B. stipulated that there were grounds for terminating her parental rights to her two children, but argued at the disposition phase that termination wasn’t in the best interest of the children. At that hearing, the County presented the testimony of a psychologist who had assessed M.M.B.’s “psychosocial functioning, including issues related to parenting and substance abuse.” M.M.B. objected, arguing the psychologist’s evaluation was not contemporaneous to the dispositional hearing, but had been conducted two years earlier, and thus wasn’t relevant to the issue of the children’s best interests. (¶¶3-6). The circuit court didn’t err in admitting this testimony.
Court of appeals reverses fifth-standard commitment for failure to examine effect of ch. 55 services
Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity
Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in the community at large or through ch. 55, that diminishes the threat of harm so that it is not substantial.
In TPR, court of appeals rejects challenges to default on grounds and exercise of discretion in disposition
State v. A.M.-C., 2021AP94 & 2021AP95, 3/30/21, District 1 (one-judge decision; ineligible for publication); case activity
The state petitioned to terminate A.M.-C.’s rights to two of her children on failure-to-assume and continuing-CHIPS grounds. After being told (apparently via interpreter, as Spanish is her first language) that she had to attend all hearings, A.M.-C. moved to New York City. The circuit court rejected her request to attend by telephone, found her in default, and after prove-up, found her unfit. It later found termination of her rights to be in the children’s best interest.
COA holds declining to give a “statement” doesn’t invoke Miranda right not to answer “questions”
State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)
Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.